Starting from: Reyes v.

Bagatsing

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwp h!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition
sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in
the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks
away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the
oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted
on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel
who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the
local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise
of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a
peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October
20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on
behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his
behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was
denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit
was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this
time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports
affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where
a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal
Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be
ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then
deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory
injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a
dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of
Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and
truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint
on the communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action
for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the
State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation
and discussion of matters Of public concern.17 It is entitled to be accorded the utmost deference and respect. It is hot
to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice
Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the
right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme
Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press
were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case,
therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in
this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was
the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all
the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of
reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this
right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary
to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more
than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of
Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided.
The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be
precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be
avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high
estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in
the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks
may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of
citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not,
in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where
this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a
contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for
public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a
permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-
away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this
Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no
parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first
be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and
held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a
parade or procession to procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state
courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place,
and manner of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ...
" 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil
liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of public highways has never
been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen.
So, too, if the march would end at another park. As previously mentioned though, there would be a short program
upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would
be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was
concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on
November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads:
"2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against
any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
" 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land.
..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international
law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent
Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but
not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if
shown then to be applicable, that question the confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined
within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has
been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution
granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion
was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These
rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such
assembly, composed primarily of those in attendance at the International Conference for General Disbarmament,
World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas
Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to
public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the
applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes
discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The
relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there
be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption — especially so where the assembly is scheduled for a specific public — place is
that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice
Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some
other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng
Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should
recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be
designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no
such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and
present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The
mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it
arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from
him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel
Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear
by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines
would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to
ensure a peaceful march and rally.' " 40Assistant Solicitor General Montenegro expressed the view that the presence of
policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever
ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice
Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those
exercising their right to peaceable assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the
date, the public place where and the time when it will take place. If it were a private place, only the consent of the
owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense
with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this
resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original
resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery
and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not
follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could
still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of
the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500
feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices
Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech
and peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought
and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and
rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted
the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the
peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies
held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and
moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of
speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal
rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town
mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or procession may pass or the meeting may be
held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of
grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated
black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which
subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent
Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by
the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The
exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is
therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse
action on the application lies on the mayor as licensing authority. There must be objective and convincing, not
subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of
October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a
permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own
appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such
weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the
ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs.
California. 2têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burned women. It is the function of speech to free men from the bondage of irrational
 fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is
a serious one * * *.
Those who won our independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in
destruction of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not abridgment of the rights of free speech
and assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be
exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police
protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S.
Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised
in subordination to the general comfort and convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged or denied.
We think the court below was right in holding the ordinance quoted in Note I void upon its face. It
does not make comfort or convenience in the use of streets or parks the standard of official action. It
enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made
theinstrument of arbitrary suppression of free expression of views on national affairs for the
prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right. (Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful
march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same,
concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but
ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked or
otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion inFugoso, citing
the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be
not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and
render illusory the right of peaceable assembly, thus: têñ.£ îhqwâ£

It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible
followers.But if the prosecution be permitted to seize upon every instance of such disorderly conduct
by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultous rising against the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the
 severest and most unmerited punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied).
As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if
there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for
the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a
reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a
foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention
on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500
feet from the situs of the rally or demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance
No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of
speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal
rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town
mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or procession may pass or the meeting may be
held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of
grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated
black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which
subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent
Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by
the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The
exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is
therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse
action on the application lies on the mayor as licensing authority. There must be objective and convincing, not
subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of
October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a
permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own
appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such
weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the
ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs.
California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burned women. It is the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is
a serious one * * *.
Those who won our independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in
destruction of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not abridgment of the rights of free speech
and assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be
exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police
protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S.
Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised
in subordination to the general comfort and convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged or denied.
We think the court below was right in holding the ordinance quoted in Note I void upon its face. It
does not make comfort or convenience in the use of streets or parks the standard of official action. It
enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made
theinstrument of arbitrary suppression of free expression of views on national affairs for the
 prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right. (Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful
march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same,
concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but
ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked or
otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion inFugoso, citing
the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be
not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and
render illusory the right of peaceable assembly, thus: têñ.£ îhqwâ£

It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible
followers.But if the prosecution be permitted to seize upon every instance of such disorderly conduct
by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultous rising against the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied).
As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if
there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for
the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a
reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a
foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention
on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500
feet from the situs of the rally or demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance
No. 7295 of the City of Manila.

G.R. No. L-65695 December 19, 1983

HECTOR S. RUIZ, as coordinator of the Olongapo Citizen's Alliance for National Reconciliation, petitioner,
vs.
RICHARD GORDON, as City Mayor of Olongapo City, respondent.
Teddy C. Macapagal and Engelberto de Castro for petitioners.
Ma. Ellen M. Aguilar for respondent.

FERNANDO, CJ.:
The constitutional rights to free speech and free assembly are invoked in this mandamus proceeding filed on
November 25, 1983 against respondent Richard Gordon , Mayor of Olongapo City. It was alleged: "On 21 November
1983, petitioner personally delivered to the respondent a letter application dated 19 November 1983, the full text of
which read as follows: ' November 19, 1983, The Honorable City Mayor, Olongapo City. Sir.: In behalf of the
Olongapo Citizen's Alliance for national Reconciliation , Justice for Aquino Justice for All (JAJA), Concern (sic)
Citizen for Justice and Peace (CCJP), Damdamin Bayan na Nagkakaisa (DAMBANA), United Nationalist Democratic
Organization (UNIDO), we are respectfully requesting for a permit to hold a prayer-rally at the Rizal Triangle,
Olongapo City on December 4,1983 from 1:00 P.M. until it will be finished in the early evening. It is likewise
requested the above named organizations to be allowed to hold a parade/march from Gordon Avenue to the Rizal
Triangle starting at 1:00 P.M. Your preferential attention on this request will be highly appreciated. [It was signed by
petitioner Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation.]" 1Reference was
then made to the minute resolution of this Court in Jose B.L. Reyes v. Bagatsing. 2 The prayer was for "the immediate
issuance of the writ of mandamus, without prejudice to an extended decision; or that a writ of preliminary mandatory
injunction be issued immediately so as not to render moot and academic the purpose for which the permit was applied
for on 4 December 1983 from 1:00 to 6:00 (early evening) o'clock in the afternoon." 3
At the next session day, on November 29, 1983, the Court issued the following resolution: "The Court , after
considering the pleadings filed and deliberating on the issues raised in the petition for mandamus with prayer for a
writ of preliminary mandatory injunction filed on November 25,1983, Resolved to require the respondents to file an
ANSWER, not a motion to dismiss, within two(2) days from notice." 4
On the very afternoon of the same day, there was this manifestation from respondent Mayor: "1. On November 22,
1983, the petitioner, allegedly the coordinator of the, Olongapo Citizen's Alliance for National Reconciliation, had
their request for a prayer rally and parade/march received in the Office of the Mayor. 2. That even before the request,
the respondent had repeatedly announced in his regular program on Sunday over the radio (DWGO) and at the
Monday morning flag ceremony before hundreds of government employees that he would grant the request of any
group that would like to exercise their freedom of speech and assembly. 3. That respondent when interviewed on the
matter by the Editor-in Chief of the 'Guardian', a newspaper of general circulation in Olongapo and Zambales,
mentioned the fact that he had granted the permit of the petitioner, which interview appeared in the November 22-28,
1983 issue of the said newspaper. A copy of the newspaper is hereto attached and made an integral part hereof as
Annex 'A'. 4. On November 23, 1983, the City Mayor approved the request of the petitioner to hold a prayer rally and
a parade/march on December 4, 1983. A copy of the permit is hereto attached and made an integral part hereof as
Annex 'B'. 5 " The prayer was for the dismissal of the petition. The permit reads as follows: "23 November 1983, Dr.
Hector S. Ruiz, Coordinator, Olongapo Citizen's Alliance for National Reconciliation, Olongapo City. Dear Dr. Ruiz:
Your request for a PERMIT to hold a prayer rally at the Rizal Triangle, Olongapo City and a parade/march from
Gordon Avenue at 1:00 p.m. of 4 December 1983 as stated in your letter dated 19 November 1983 received in this
office on 22 November is hereby GRANTED provided that: 1. The parade/march and rally will be peaceful and
orderly; 2. Your organization will be responsible for any loss or damage to government property and for the
cleanliness of the Rizal Triangle; 3. The parade/march shall proceed from the corner of Gordon Ave., and Magsaysay
Drive, to Rizal Ave., thence to the Rizal Triangle. Please coordinate with the Integrated National Police for
appropriate traffic assistance. Very truly yours, (Sgd.) Richard J. Gordon, City Mayor." 6
At its next session then of November 27, the Court, in the light of the above manifestation, resolved to grant such plea
for dismissal. From petitioner came, on December 1, 1983, a motion dated November 29 to withdraw petition. As
therein stated: "Petitioner, by counsel, respectfully moves to withdraw the above-entitled petition on the ground that
the permit being sought in the prayer-rally to be held on 4 December 1983 from 1:00 to 6:00 PM has been granted by
the respondent." 7 Then the next day, December 2, 1983, the answer of respondent came reiterating what was set forth
in his manifestation. The reason for the delay of such pleading, the due date the service had been served on petitioner
being December 1, 1983, was obviously the distance between Manila and Olongapo City. It was not served until
November 30. At any rate, no prejudice was caused either party as in the meanwhile, the Court had acted on the very
day the manifestation was submitted. That was on December 1, 1983.
There is relevance to a recital of such facts. It appears that the guidelines set forth in the extended opinion in the
aforesaid J.B.L. Reyes decision as to the role of the judiciary in petitions for permits to hold peaceable assembles may
have to be supplemented. This is how the J.B.L. Reyes opinion reads on this point: "The applicants for a permit to
hold an assembly should inform the licensing authority of the date, the public place where and the timewhen it will
take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmmitted
to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free
speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by
Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline the weight
of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the
extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October 25, 1983. " 8
As shown both in the manifestation and the answer, this action for mandamus could have been obviated if only
petitioner took the trouble of verifying on November 23 whether or not a permit had been issued. A party desirous of
exercising the right to peaceable assembly should be the one most interested in ascertaining the action taken on a
request for a permit. Necessarily, after a reasonable time or, if the day and time was designated for the decision on the
request, such party or his representative should be at the office of the public official concerned. If he fails to do so, a
copy of the decision reached, whether adverse or favorable, should be sent to the address of petitioner. In that way,
there need not be waste of time and effort not only of the litigants but likewise of a court from which redress is sought
in case of a denial or modification of a request for a permit.
Lately, several petitions of this character have been filed with this court. It could be due to the lack of knowledge of
the guidelines set forth in the extended opinion. Steps have been taken to send the Regional Trial judges copies
thereof. In the future, therefore, without precluding the filing of petitions directly with this Court, the interest of
justice and of public convenience would be better served if litigation starts on the trial court level.
While, therefore, this petition should be dismissed, the Court deems it best to set forth the above to specify in more
detail, the steps necessary for the judicial protection of constitutional rights with the least delay and inconvenience to
the parties and with the greater assurance that the factual background on which is dependent the determination of
whether or not the clear and present danger standard has been satisfied. Lastly, a certiorari petition to this Court is
likewise available to the losing party.
WHEREFORE, as prayed for, this case is dismissed.
Makasiar, Aquino, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Relova and Gutierrez, Jr.,
JJ., concur.
Separate Opinions

TEEHANKEE, J, concurring:
The Chief Justice's opinion for the Court reaffirms and reproduces the guidelines in the J.B.L. Reyes vs. Bagatsingcase
(G.R. No. 65366, November 9, 1983) for the guidance of applicants for permit to hold peaceful assemblies in public
places and of the licensing authorities, generally the city or town mayors. It stresses that the right to peacefully
assemble, speak out freely and petition the government for redress of grievances should be accorded the utmost
deference and respect and is not to be limited much less denied, except under the clear and present danger standard,
i.e. there must be a clear showing of the "danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest — a substantive evil that the State has a
right to prevent (at paragraph 1).
The Court's opinion suggests that in the future such petitions of mandamus to compel the granting of such permits be
filed with the regional trial courts rather than directly with this Court, with the statement that "without precluding the
filing of petitions directly with this Court, the interest of justice and of public convenience would be better served if
litigation starts on the trial court level" (at page 5). This is the Ideal situation and would need reorientation on the part
of everybody concerned - the applicants and the licensing authorities, as well as the police authorities - to resolve the
question of granting of such permits for peaceful assemblies at the administrative and regional trial court levels rather
than to get the ultimate verdict from the Supreme Court. This Court has after all laid down the clear guidelines in
the J. B. L. Reyes case for the licensing authorities and has taken steps to furnish copies thereof to all regional trial
courts for their information and guidance. It is to be hoped that what has happened in Manila after the J B. L.
Reyes case, wherein the Mayor as the licensing authority has in compliance with the guidelines granted all subsequent
applications for such permits, seeing to it only that there be no conflict in the scheduling of such assemblies and
thereby eliminated the need for the applicant's having to go to court, would be emulated by all other cities and towns
concerned. The granting of such permits for the exercise of a fundamental right, absent any clear and present danger,
is after all practically a ministerial duty.
The salient points of such guidelines need only be restated herein for the guidance of all concerned:
As stressed by the Chief Justice in the J. B. L. Reyes case, the presumption "must be to incline the weight of the scales
of justice on the side of such right [of free speech and peaceful assemble , enjoying as they do precedence and
primacy."
The application should be filed ahead of time and the licensing authority should act promptly thereon and his decision,
whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity to give them time to go
to court, if necessary.
It is an "indispensable condition to such refusal or modification [of the application] that the clear and present danger
test be the standard for decision reached," and if the licensing authority "is of the view that there is such an imminent
and grave danger of a substantive evil, the applicants must be heard on the matter. "
The burden to show the existence of such grave and imminent danger that would justify an adverse action lies on the
mayor as the licensing authority. There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger. As the Court stated in its Resolution of October 25, 1983 in theJ. B. L.
Reyes case, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship
that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may
require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present
danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough."
As likewise underscored in the J. B. L. Reyes case, the exercise of the right of peaceable assembly is not to be 4
abridged on the plea that it may be exercised in some other place" (at paragraph 6) and "It is the duty of the city
authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of
expression" (at paragraph 7).
The organizers of the assembly should take all the precautions that the march rally be peaceful and orderly. As Chief
Justice Hughes had aptly pointed out, such liberties "as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained
abuses."Still, Condition No. 2 of respondent Mayor's permit that "petitioner organization would be responsible for any
loss or damage to any government property and for the cleanliness of the assembly site" seems to be too loosely
worded. The basic right of peaceable assembly could well be abridged, if not denied, if its exercise were to be saddled
with onerous conditions. Generally, the individuals responsible for any damage should be the ones sought out and held
accountable and the task of cleaning up the assembly site would normally rest on the city or town authorities who
presumably have the necessary facilities therefor, secured with revenues or funds paid by the taxpayers.
As we stated in the J. B. L. Reyes case, "the leaders of the peaceable assembly should take all the necessary measures
to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the police to extend protection to the participants 'staying at a discreet
distance, but ever ready and alert to perform their duty.' " Should any disorderly conduct or incidents occur, the police
authorities may well recall the injunction since the 1907 case of U.S. vs. Apurado (7 Phil. 422) that such instances of
"disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities" and render illusory the right of peaceable assembly
If these clear guidelines were followed by all concerned with goodwill and in good faith, there would then be hardly
any need to have to go to court to exercise the primary and fundamental right of peaceable assembly, free expression
and petition for redress of grievances.
CONCEPCION JR., J., concurring:
1. No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances. 1
2. These constitutional rights give life and meaning to a democratic society. They are sacred and inviolate.
3. But while they are sacred, they are not absolute; while they are inviolate, they are not licentious. The exercise of
these rights must take into account the exercise of the rights of others — and of the State.
4. While a person has a constitutional right to freedom of speech, the exercise of such right does not give him any
license to libel or slander another. Nor to incite The people to commit the crime of treason, rebellion or insurrection,
sedition or assault upon a person in authority or his agents. 2
5. Neither can those who choose to exercise their constitutional right to peaceably assemble and petition the
Government for a redress of grievances claim the privilege to use a public park, plaza, or street to the exclusion of the
general public and all others. The right to peaceably assemble is not absolute but relative.
6. Public officials charged with the duty of granting or denying permits to hold rallies, demonstrations, parades, and
the like, do right by basing their decisions on the existence or non-existence of a "clear and present danger of a
substantive evil that the State has a right to prevent."
7. But it should be remembered that the clear and present danger rule is not a hard and fast rule. Its application and
interpretation should be measured and weighed in the light of circumstances as to persons, time, and place.
8. To grant a permit for holding a rally along Ayala Avenue in Makati presents no problem to the authorities because
Makati is a peaceful and law-abiding community. But the same application filed in a place where ambuscades of
government troops and assassination of government officials have occured cannot be considered in the same light as
that one filed in Makati.
9 In order that public officials may not be charged, rightly or wrongly, with dereliction of duty or abuse of powers in
the granting or denying of such permits, the following guidelines are deemed necessary:
(a) When a peaceful assembly is to be held in a private lot, house, or edifice, only the consent of the
owner of the place is necessary. No permit from the government or any public officer is required.
(b) When an application to hold a rally, parade, or peaceful assembly has to make use of public places
like parks, plazas, and streets, the public authority charged with the duty of granting or denying the
permit should also consider the convenience and the right of the rest of the public to use and enjoy
these same facilities.
 (c) Conditions of peace and order in the locality should be carefully considered and precautionary
steps taken to prevent vandals, hooligans, provocateurs, and other criminals from turning into a
violent one what otherwise should be a peaceful demonstration,
10. Anarchy should never again be permitted to return to the streets of our cities and towns. We experienced it before
and certainly we have no desire that the experience be repeated. The right to free speech and assembly must never be
suppressed. At the same time, there can be no indiscriminate granting of permits to anyone who applies lest we
jeopardize the lives and security of the general public and prevent our people from living in peace and tranquility and
enjoying the fruits of their labor.

Separate Opinions
TEEHANKEE, J, concurring:
The Chief Justice's opinion for the Court reaffirms and reproduces the guidelines in the J.B.L. Reyes vs. Bagatsingcase
(G.R. No. 65366, November 9, 1983) for the guidance of applicants for permit to hold peaceful assemblies in public
places and of the licensing authorities, generally the city or town mayors. It stresses that the right to peacefully
assemble, speak out freely and petition the government for redress of grievances should be accorded the utmost
deference and respect and is not to be limited much less denied, except under the clear and present danger standard,
i.e. there must be a clear showing of the "danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest — a substantive evil that the State has a
right to prevent (at paragraph 1).
The Court's opinion suggests that in the future such petitions of mandamus to compel the granting of such permits be
filed with the regional trial courts rather than directly with this Court, with the statement that "without precluding the
filing of petitions directly with this Court, the interest of justice and of public convenience would be better served if
litigation starts on the trial court level" (at page 5). This is the Ideal situation and would need reorientation on the part
of everybody concerned - the applicants and the licensing authorities, as well as the police authorities - to resolve the
question of granting of such permits for peaceful assemblies at the administrative and regional trial court levels rather
than to get the ultimate verdict from the Supreme Court. This Court has after all laid down the clear guidelines in
the J. B. L. Reyes case for the licensing authorities and has taken steps to furnish copies thereof to all regional trial
courts for their information and guidance. It is to be hoped that what has happened in Manila after the J B. L.
Reyes case, wherein the Mayor as the licensing authority has in compliance with the guidelines granted all subsequent
applications for such permits, seeing to it only that there be no conflict in the scheduling of such assemblies and
thereby eliminated the need for the applicant's having to go to court, would be emulated by all other cities and towns
concerned. The granting of such permits for the exercise of a fundamental right, absent any clear and present danger,
is after all practically a ministerial duty.
The salient points of such guidelines need only be restated herein for the guidance of all concerned:
As stressed by the Chief Justice in the J. B. L. Reyes case, the presumption "must be to incline the weight of the scales
of justice on the side of such right [of free speech and peaceful assemble , enjoying as they do precedence and
primacy."
The application should be filed ahead of time and the licensing authority should act promptly thereon and his decision,
whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity to give them time to go
to court, if necessary.
It is an "indispensable condition to such refusal or modification [of the application] that the clear and present danger
test be the standard for decision reached," and if the licensing authority "is of the view that there is such an imminent
and grave danger of a substantive evil, the applicants must be heard on the matter. "
The burden to show the existence of such grave and imminent danger that would justify an adverse action lies on the
mayor as the licensing authority. There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger. As the Court stated in its Resolution of October 25, 1983 in theJ. B. L.
Reyes case, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship
that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may
require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present
danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough."
As likewise underscored in the J. B. L. Reyes case, the exercise of the right of peaceable assembly is not to be 4
abridged on the plea that it may be exercised in some other place" (at paragraph 6) and "It is the duty of the city
authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of
expression" (at paragraph 7).
The organizers of the assembly should take all the precautions that the march rally be peaceful and orderly. As Chief
Justice Hughes had aptly pointed out, such liberties "as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained
abuses."Still, Condition No. 2 of respondent Mayor's permit that "petitioner organization would be responsible for any
loss or damage to any government property and for the cleanliness of the assembly site" seems to be too loosely
worded. The basic right of peaceable assembly could well be abridged, if not denied, if its exercise were to be saddled
with onerous conditions. Generally, the individuals responsible for any damage should be the ones sought out and held
accountable and the task of cleaning up the assembly site would normally rest on the city or town authorities who
presumably have the necessary facilities therefor, secured with revenues or funds paid by the taxpayers.
As we stated in the J. B. L. Reyes case, "the leaders of the peaceable assembly should take all the necessary measures
to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the police to extend protection to the participants 'staying at a discreet
distance, but ever ready and alert to perform their duty.' " Should any disorderly conduct or incidents occur, the police
authorities may well recall the injunction since the 1907 case of U.S. vs. Apurado (7 Phil. 422) that such instances of
"disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities" and render illusory the right of peaceable assembly
If these clear guidelines were followed by all concerned with goodwill and in good faith, there would then be hardly
any need to have to go to court to exercise the primary and fundamental right of peaceable assembly, free expression
and petition for redress of grievances.
CONCEPCION JR., J., concurring:
1. No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances. 1
2. These constitutional rights give life and meaning to a democratic society. They are sacred and inviolate.
3. But while they are sacred, they are not absolute; while they are inviolate, they are not licentious. The exercise of
these rights must take into account the exercise of the rights of others — and of the State.
4. While a person has a constitutional right to freedom of speech, the exercise of such right does not give him any
license to libel or slander another. Nor to incite The people to commit the crime of treason, rebellion or insurrection,
sedition or assault upon a person in authority or his agents. 2
5. Neither can those who choose to exercise their constitutional right to peaceably assemble and petition the
Government for a redress of grievances claim the privilege to use a public park, plaza, or street to the exclusion of the
general public and all others. The right to peaceably assemble is not absolute but relative.
6. Public officials charged with the duty of granting or denying permits to hold rallies, demonstrations, parades, and
the like, do right by basing their decisions on the existence or non-existence of a "clear and present danger of a
substantive evil that the State has a right to prevent."
7. But it should be remembered that the clear and present danger rule is not a hard and fast rule. Its application and
interpretation should be measured and weighed in the light of circumstances as to persons, time, and place.
8. To grant a permit for holding a rally along Ayala Avenue in Makati presents no problem to the authorities because
Makati is a peaceful and law-abiding community. But the same application filed in a place where ambuscades of
government troops and assassination of government officials have occured cannot be considered in the same light as
that one filed in Makati.
9 In order that public officials may not be charged, rightly or wrongly, with dereliction of duty or abuse of powers in
the granting or denying of such permits, the following guidelines are deemed necessary:
 (a) When a peaceful assembly is to be held in a private lot, house, or edifice, only the consent of the
owner of the place is necessary. No permit from the government or any public officer is required.
(b) When an application to hold a rally, parade, or peaceful assembly has to make use of public places
like parks, plazas, and streets, the public authority charged with the duty of granting or denying the
permit should also consider the convenience and the right of the rest of the public to use and enjoy
these same facilities.
(c) Conditions of peace and order in the locality should be carefully considered and precautionary
steps taken to prevent vandals, hooligans, provocateurs, and other criminals from turning into a
violent one what otherwise should be a peaceful demonstration,
Anarchy should never again be permitted to return to the streets of our cities and towns. We experienced it before and
certainly we have no desire that the experience be repeated. The right to free speech and assembly must never be
suppressed. At the same time, there can be no indiscriminate granting of permits to anyone who applies lest we
jeopardize the lives and security of the general public and prevent our people from living in peace and tranquility and
enjoying the fruits of their labor.

G.R. No. L-12592 March 8, 1918

THE UNITED STATES, plaintiff-appellee,
vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.
MALCOLM, J.:
This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of
Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of Pampanga. The appeal also submits the
larger question of the attitude which the judiciary should take interpreting and enforcing the Libel Law in connection
with the basic prerogatives of freedom of speech and press, and of assembly and petition. For a better understanding,
the facts in the present appeal are the first narrated in the order of their occurrence, then certain suggestive aspects
relative to the rights of freedom of speech and press and of assembly and petition are interpolated, then the facts are
tested by these principles, and, finally, judgment is rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared and
signed a petition to the Executive Secretary through the law office of Crossfield and O'Brien, and five individuals
signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with
malfeasance in office and asking for his removal. Crossfield and O'Brien submitted this petition and these affidavits
with a complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four
citizens apparently of considerable standing, including councilors and property owners (now the defendants), and
contained the statements set out in the information as libelous. Briefly stated the specific charges against the justice of
the peace were.
1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace,
who first told her that he would draw up complaint for P5; afterwards he said he would take P3 which she paid; also
kept her in the house for four days as a servant and took from her two chickens and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace,
went to see the justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if he
wished to win he must give him P50. Not having this amount, Sunga gave the justice nothing, and a few days later
was informed that he had lost the case. Returning again to the office of the justice of the peace in order to appeal, the
justice told him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice
called him over to his house, where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting
investigation, proper action, and report. The justice of the peace was notified and denied the charges. The judge of
first instance found the first count not proved and counts 2 and 3 established. In view of this result, the judge, the
Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby, recommended to the Governor-General
that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of
Pampanga, and it is ordered that the proceedings had in this case be transmitted to the Executive Secretary."
Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and
reopened the hearing; documents were introduced, including a letter sent by the municipal president and six
councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of prosecution, and that one
Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal reasons; and the judge of first
instance ordered a suppression of the charges against Punsalan and acquitted him the same. Attorneys for
complainants thereupon appealed to the Governor-General, but whether the papers were forwarded to the Governor-
General as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of
the following information:
That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said
accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman
Punsalan Serrano who was at said time and place justice of the peace of Macabebe and Masantol of this
province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and
libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing appear among other
things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the
conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to be a
public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and
consequently unworthy of the office.
That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so
serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less serious,
but which the undersigned refrain from citing herein for the sake of brevity and in order not to bother too
much the attention of your Honor and due to lack of sufficient proof to substantiate them.
That should the higher authorities allow the said justice of the peace of this town to continue in his office, the
protection of the rights and interests of its inhabitants will be illusory and utopic; rights and interest solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not be administered in accordance
with law.
That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace,
previous to this time, some respectable citizens of this town of Macabebe were compelled to present an
administrative case against the said Roman Punsalan Serrano before the judge of first instance of Pampanga,
in which case there were made against him various charges which were true and certain and of different
characters.
That after the said administrative case was over, the said justice of the peace, far from charging his bad and
despicable conduct, which has roused the indignation of this town of Macabebe, subsequently performed the
acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock at the people and to
show his mistaken valor and heroism.'
All of this has been written and published by the accused with deliberate purpose of attacking the virtue,
honor, and reputation of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to
public hatred contempt, and ridicule. All contrary to law.
It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge
of first instance, the affidavits upon which based and concluding words, "To the Executive Secretary, through the
office of Crossfield and O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso,
Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-second
part of the costs, or to suffer subsidiary imprisonment in case of insolvency. New attorneys for the defense, coming
into the case, after the handing down of the decision, file on December 16, 1916, a motion for a new trial, the
principal purpose of which was to retire the objection interposed by the then counsel for the defendants to the
admission of Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the following assignments of error:
1. The court erred in overruling the motion of the convicted defendants for a new trial.
2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their
counsel to the admission in evidence of the expediente administrativo out of which the accusation in this case
arose.
3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused
of the affidavits upon which the petition forming the basis of the libelous charge was based.
4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged.
5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the
alleged libelous statements were true and free from malice.
6. The court erred in not acquitting the defendants.
7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is
especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this
court. As a matter of fact counsel for defendants in the lower court made an improvident objection to the admission of
the administrative proceedings on the ground that the signatures were not identified and that the same was immaterial,
which objection was partially sustained by the trial court. Notwithstanding this curious situation by reason of which
the attorney for the defense attempted to destroy through his objection the very foundation for the justification of his
clients, we shall continue to consider all the proceedings as before us. Not indicating specifically the reason for this
action, let the following be stated: The administrative proceedings were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The
prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than
to pick out certain words which standing by themselves and unexplained are libelous and then by shutting off all
knowledge of facts which would justify these words, to convict the accused. The records in question are attached to
the rollo, and either on the ground that the attorneys for the defense retired the objection to the introduction of the
administrative proceedings by the prosecution, or that a new trial should have been had because under section 42 of
the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the trial," or
because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are
essential to a determination of the case, or finally, because of our conceded right to take judicial notice of official
action in administrative cases and of judicial proceedings supplemental to the basis action, we examine the record as
before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this
action, the Government can not explain for it was the prosecution which tried to incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain principles which make up the law of libel and
slander, we feel warranted in seizing the opportunity to intrude an introductory and general discussion of freedom of
speech and press and assembly and petition in the Philippine Islands. We conceive that the time is ripe thus to clear up
certain misapprehensions on the subject and to place these basic rights in their proper light.
Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in
democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently
ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The Philippines a Century Hence, pages 62 et seq.)
describing "the reforms sine quibus non," which the Filipinos insist upon, said: "
The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines
free and by instituting Filipinos delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the
wants of the Filipino people demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion
Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded
freedom of speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these
Islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the
covenant of liberty itself.
Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State
constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. We are
therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the
Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for a redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916,
in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United
States, which the American people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties
mentioned are part and parcel of the Organic Law — of the Constitution — of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the
applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100;
Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But
included are the following:
The interest of society and the maintenance of good government demand a full discussion of public affairs.
Completely 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 the dignity of the
individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than
the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials,
to the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public
opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4
L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of
the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for
proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer,
public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary
would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the
individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary,
it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is
further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any
public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of
Mr. Justice Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct
of their officials in whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow
[1906], 113 App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican institutions and the complement of the
part of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply, without fear of penalty, to the appropriate
branch or office of the government for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.
Public policy, the welfare of society, and the orderly administration of government have demanded protection for
public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of
privilege.
The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered
administration of justice, though, as an incidental result, it may in some instances afford an immunity to the
 evil-disposed and malignant slanderer.' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S.,
409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it
is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by Lord
Campbell, C. J.
A communication made bona fide upon any subject-matter in which the party communicating has an interest,
or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be slanderous and actionable.
(Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice
in regard to the character or conduct of a public official when addressed to an officer or a board having some interest
or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their
truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual.
But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is
not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The
duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith
believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere
fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the
person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some
natural and honest mistake as to the respective functions of various officials such unintentional error will not take the
case out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of
proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the
true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White
vs. Nicholls [1845], 3 How., 266.)
A privileged communication should not be subjected to microscopic examination to discover grounds of malice or
falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications.
The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12
Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309;
Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press
and of assembly and petition, having emphasized the point that our Libel Law as a statute must be construed with
reference to the guaranties of our Organic Law, and having sketched the doctrine of privilege, we are in a position to
test the facts of this case with these principles.
It is true that the particular words set out in the information, if said of a private person, might well be considered
libelous per se. The charges might also under certain conceivable conditions convict one of a libel of a government
official. As a general rule words imputing to a judge or a justice of the peace dishonesty or corruption or incapacity or
misconduct touching him in his office are actionable. But as suggested in the beginning we do not have present a
simple case of direct and vicious accusations published in the press, but of charges predicated on affidavits made to
the proper official and thus qualifiedly privileged. Express malice has not been proved by the prosecution. Further,
although the charges are probably not true as to the justice of the peace, they were believed to be true by the
petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in
office existed is apparent. The ends and the motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege. These respectable citizens did not
eagerly seize on a frivolous matter but on instances which not only seemed to them of a grave character, but which
were sufficient in an investigation by a judge of first instance to convince him of their seriousness. No undue publicity
was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. And
finally the charges and the petition were submitted through reputable attorneys to the proper functionary, the
Executive Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the Governor-
General, that they may be removed by the Governor-General upon the recommendation of a Judge of First Instance, or
on the Governor-General's own motion, and that at the time this action took place the Executive Bureau was the office
through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in
connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344,
holding that where defendant was subject to removal by the sovereign, a communication to the Secretary of State was
privileged.)
The present facts are further essentially different from those established in other cases in which private individuals
have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the
officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs.
Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos
([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with
the exception that there has been more publicity in the present instance and that the person to whom the charge was
made had less jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the
charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild
statements, with no basis in fact, made against reputable members of the judiciary, "to persons who could not furnish
protection." Malicious and untrue communications are not privileged. A later case and one more directly in point to
which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note alsoYancey vs.
Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing
out of constitutional guaranties in our bill of rights. Instead of punishing citizens for an honest endeavor to improve
the public service, we should rather commend them for their good citizenship. The defendants and appellants are
acquitted with the costs de officio. So ordered.
Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

Separate Opinions
CARSON, J., concurring:
I concur. I think it proper to observe, however, that in my opinion the Attorney-General is entirely correct when he
says that this case is substantially identical with the former "Bustos case (The United States vs. Bustos, 13 Phil. Rep.,
690). I believe that a careful reading of our decisions in these cases is sufficient to demonstrate that fact. The truth is
that the doctrine of the prevailing opinion in the former Bustos case has long since been abandoned by this court; and
in my opinion it would make for the more efficient administration of the Libel Law in these Islands to say so, in so
many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U. S. vs. Contreras [1912], 23 Phil. Rep., 513; U.
S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U. S. vs. Galeza [1915], 31 Phil. Rep., 365.)

Syllabus

Respondent's radio station, which broadcast news reports every half hour,
broadcast news stories of petitioner's arrest for possession of obscene literature
and the police seizure of "obscene books," and stories concerning petitioner's
lawsuit against certain officials alleging that the magazines he distributed were
not obscene and seeking injunctive relief from police interference with his
business. These latter stories did not mention petitioner's name, but used the
terms "smut literature racket" and "girlie-book peddlers." Following petitioner's
acquittal of criminal obscenity charges, he filed this diversity action in District
Court seeking damages under Pennsylvania's libel law. The jury found for
petitioner and awarded $25,000 in general damages; and $725,000 in punitive
damages, which was reduced by the court on remittitur to $250,000. The Court of
Appeals reversed, holding that theNew York Times Co. v. Sullivan, 376 U.S. 254,
standard applied, and "the fact that plaintiff was not a public figure cannot be
accorded decisive significance."

Held: The judgment is affirmed. Pp. 40-62.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN, concluded that the New York Times standard of knowing or reckless
falsity applies in a state civil libel action brought by a private individual for a
defamatory falsehood uttered in a radio news broadcast about the individual's
involvement in an event of public or general interest. Pp. 40-57.

MR. JUSTICE BLACK concluded that the First Amendment protects the news
media from libel judgments even when statements are made with knowledge that
they are false. P. 57.

MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined
in New York Times, supra, the First Amendment gives the news media a privilege
to report and comment upon the official actions of public servants in full detail,
without sparing from public view the reputation or privacy of an individual
involved in or affected by any official action. Pp. 59-62.[p30]

BRENNAN, J., announced the Court's judgment and delivered an opinion in which
BURGER, C.J., and BLACKMUN, J., joined. BLACK, J., post, p. 57, and WHITE,
J., post, p. 57, filed opinions concurring in the judgment. HARLAN, J., filed a
dissenting opinion, post, p. 62. MARSHALL, J., filed a dissenting opinion in which
STEWART, J., joined,post, p. 78. DOUGLAS, J., took no part in the consideration or
decision of this case.

TOP

Opinion

BRENNAN, J., Judgment of the Court

MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in
which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.

In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S.
254 (1964), the Court has considered the limitations upon state libel laws imposed
by the constitutional guarantees of freedom of speech and of the press. New York
Times held that in a civil libel action by a public official against a newspaper those
guarantees required clear and convincing proof that a defamatory falsehood
alleged as libel was uttered with "knowledge that it was false or with reckless
disregard of whether it was false or not." Id. at 280. The same requirement was
later held to apply to "public figures" who sued in libel on the basis of alleged
defamatory falsehoods. The several cases considered since New York
Times involved actions of "public officials" or "public figures," usually, but not
always, against newspapers or magazines.[n1] Common to all the cases was
a[p31] defamatory falsehood in the report of an event of "public or general
interest."[n2] The instant case presents the question whether the New York Times'
"knowing or reckless falsity standard" applies in a state civil libel action brought
not by a "public official" or a "public figure," but by a private individual for a
defamatory falsehood uttered in a news broadcast by a radio station about the
individual's involvement in an event of public or general[p32] interest.[n3] The
District Court for the Eastern District of Pennsylvania held that the New York
Times standard did not apply. and that Pennsylvania law determined respondent's
liability in this diversity case, 289 F.Supp. 737 (1968). The Court of Appeals for
the Third Circuit held that the New York Times standard did apply, and reversed
the judgment for damages awarded to petitioner by the jury. 415 F.2d 892
(1969). We granted certiorari, 397 U.S. 904 (1970). We agree with the Court of
Appeals, and affirm that court's judgment.

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia

metropolitan area. During the fall of that year, in response to citizen complaints,
the Special Investigations Squad of the Philadelphia Police Department initiated a
series of enforcement actions under the city's obscenity laws. The police, under
the command of Captain Ferguson, purchased various magazines from more than
20 newsstands throughout the city. Based upon Captain Ferguson's determination
that the magazines were obscene,[n4] police, on October 1, 1963, arrested most of
the newsstand operators[n5] on charges of selling obscene material. While the
police were making an arrest at one newsstand, petitioner arrived to deliver some
of his nudist magazines, and was immediately arrested[p33] along with the
newsboy.[n6] Three days later, on October 4, the police obtained a warrant to
search petitioner's home and the rented barn he used as a warehouse, and seized
the inventory of magazines and books found at these locations. Upon learning of
the seizures, petitioner, who had been released on bail after his first arrest,
surrendered to the police and was arrested for a second time.
Following the second arrest, Captain Ferguson telephoned respondent's radio
station WIP and another local radio station, a wire service, and a local newspaper
to inform them of the raid on petitioner's home and of his arrest. WIP broadcast
news reports every half hour to the Philadelphia metropolitan area. These news
programs ran either five or ten minutes, and generally contained from six to
twenty different items that averaged about thirty seconds each. WIP's 6 p.m.
broadcast on October 4, 1963, included the following item:

City Cracks Down on Smut Merchants

The Special Investigations Squad raided the home of George Rosenbloom in the
1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly
obscene books at Rosenbloom's home and arrested him on charges of possession
of obscene literature. The Special Investigations Squad also raided a barn in the
20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000
obscene books. Capt. Ferguson says he believes they have hit the supply of a
main distributor of obscene material in Philadelphia.[p34]

This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8
p.m., when the item was broadcast for the third time, WIP corrected the third
sentence to read "reportedly obscene." News of petitioner's arrest was broadcast
five more times in the following twelve hours, but each report described the
seized books as "allegedly" or "reportedly" obscene. From October 5 to October
21, WIP broadcast no further reports relating to petitioner.

On October 16, petitioner brought an action in Federal District Court against

various city and police officials and against several local news media.[n7] The suit
alleged that the magazines petitioner distributed were not obscene, and sought
injunctive relief prohibiting further police interference with his business, as well as
further publicity of the earlier arrests. The second series of allegedly defamatory
broadcasts related to WIP's news reports of the lawsuit. There were ten
broadcasts on October 21, two on October 25, and one on November 1. None
mentioned petitioner by name. The first, at 6:30 a.m. on October 21, was pretty
much like those that followed:

Federal District Judge Lord, will hear arguments today from two publishers and a
distributor all seeking an injunction against Philadelphia Police Commissioner
Howard Leary . . . District Attorney James C. Crumlish . . . a local television
station and a newspaper . . . ordering them to lay off the smut literature racket.
The girlie-book peddlers say the police crackdown[p35] and continued reference to
their borderline literature as smut or filth is hurting their business. Judge Lord
refused to issue a temporary injunction when he was first approached. Today he'll
decide the issue. It will set a precedent . . . and if the injunction is not granted . .
. it could signal an even more intense effort to rid the city of pornography.

On October 27, petitioner went to WIP's studios after hearing from a friend that
the station had broadcast news about his lawsuit. Using a lobby telephone to talk
with a part-time newscaster, petitioner inquired what stories WIP had broadcast
about him. The newscaster asked him to be more specific about dates and times.
Petitioner then asked for the noon news broadcast on October 21, 1963, which
the newscaster read to him over the phone; it was similar to the above 6:30 a.m.
broadcast. According to petitioner, the ensuing interchange was brief. Petitioner
told the newscaster that his magazines were "found to be completely legal and
legitimate by the United States Supreme Court." When the newscaster replied the
district attorney had said the magazines were obscene, petitioner countered that
he had a public statement of the district attorney declaring the magazines legal.
At that point, petitioner testified, "the telephone conversation was terminated. . .
. He just hung up." Petitioner apparently made no request for a retraction or
correction, and none was forthcoming. WIP's final report on petitioner's lawsuit --
the only one after petitioner's unsatisfactory conversation at the station --
occurred on November 1 after the station had checked the story with the judge
involved.[n8][p36]

II

In May, 1964 a jury acquitted petitioner in state court of the criminal obscenity
charges under instructions of the trial judge that, as a matter of law, the nudist
magazines distributed by petitioner were not obscene. Following his acquittal,
petitioner filed this diversity action in District Court seeking damages under
Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization
of the books seized as "obscene" in the 6 and 6:30 p.m. broadcasts of October 4,
describing his arrest, constituted libel per se and was proved false by petitioner's
subsequent acquittal. In addition, he alleged that the broadcasts in the second
series describing his court suit for injunctive relief were also false and defamatory
in that WIP characterized petitioner and his business associates as "smut
distributors" and "girlie-book peddlers" and, further, falsely characterized the suit
as an attempt to force the defendants "to lay off the smut literature racket."
At the trial, WIP's defenses were truth and privilege. WIP's news director testified
that his eight-man staff of reporters prepared their own newscasts and broadcast
their material themselves, and that material for the news programs usually came
either from the wire services or from telephone tips. None of the writers or
broadcasters involved in preparing the broadcasts in this case testified. The news
director's recollection was that the primary source of information for the first
series of broadcasts[p37] about petitioner's arrest was Captain Ferguson, but that,
to the director's knowledge, the station did not have any further verification.
Captain Ferguson testified that he had informed WIP and other media of the
police action, and that WIP had accurately broadcast what he told the station. The
evidence regarding WIP's investigation of petitioner's lawsuit in the second series
of broadcasts was even more sparse. The news director testified that he was
"sure we would check with the District Attorney's office also and with the Police
Department," but "it would be difficult for me to specifically state what additional
corroboration we had." In general, he testified that WIP's half-hour deadlines
required it to rely on wire service copy and oral reports from previously reliable
sources, subject to the general policy that "we will contact as many sources as we
possibly can on any kind of a story."

III

Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts
provisions on the subject. Pennsylvania holds actionable any unprivileged
"malicious"[n9] publication of matter which tends to harm a person's reputation
and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378
Pa. 609, 107 A.2d 860 (1954); Restatement of Torts §§ 558, 559 (1938).
Pennsylvania law recognizes truth as a complete defense to a libel
action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969);
Restatement of Torts § 582. It recognizes an absolute immunity for defamatory
statements made by high state officials, even if published with an improper
motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa.
178, 140 A.2d 100 (1958); Restatement of Torts § 591,[p38] and it recognizes a
conditional privilege for news media to report judicial, administrative, or
legislative proceedings if the account is fair and accurate, and not published solely
for the purpose of causing harm to the person defamed, even though the official
information is false or inaccurate. Sciandra v. Lynett, 409 Pa. 595, 600-601, 187
A.2d 586, 588-589 (1963); Restatement of Torts § 611. The conditional privilege
of the news media may be defeated, however, by
"want of reasonable care and diligence to ascertain the truth, before giving
currency to an untrue communication." The failure to employ such "reasonable
care and diligence" can destroy a privilege which otherwise would protect the
utterer of the communication.

Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668
(1963). Pennsylvania has also enacted verbatim the Restatement's provisions on
burden of proof, which place the burden of proof for the affirmative defenses of
truth and privilege upon the defendant.[n10][p39]

At the close of the evidence, the District Court denied respondent's motion for a
directed verdict and charged the jury, in conformity with Pennsylvania law, that
four findings were necessary to return a verdict for petitioner: (1) that one or
more of the broadcasts were defamatory; (2) that a reasonable listener would
conclude that the defamatory statement referred to petitioner; (3) that WIP had
forfeited its privilege to report official proceedings fairly and accurately, either
because it intended to injure the plaintiff personally or because it exercised the
privilege unreasonably and without reasonable care; and (4) that the reporting
was false. The jury was instructed that petitioner had the burden of proof on the
first three issues, but that respondent had the burden of proving that the
reporting was true. The jury was further instructed that, "as a matter of law,"
petitioner was not entitled to actual damages claimed for loss of business "not
because it wouldn't ordinarily be, but because there has been evidence that this
same subject matter was the subject" of broadcasts over other television and
radio stations and of newspaper reports, "so if there was any business lost . . . we
have no proof . . . that [it] resulted directly from the broadcasts by WIP. . . ."
App. 331a. On the question of punitive damages, the judge gave the following
instruction:

[I]f you find that this publication arose from a bad motive or malice toward the
plaintiff, or if you find that it was published with reckless indifference to the truth,
if you find that it was not true, you would be entitled to award punitive damages,
and punitive damages are awarded as a deterrent from future conduct of the
same sort.

They really are awarded only for outrageous conduct, as I have said, with a bad
motive or with reckless disregard of the interests of others, and before[p40] you
would award punitive damages, you must find that these broadcasts were
published with a bad motive or with reckless disregard of the rights of others, or
reckless indifference to the rights of others. . . .
The jury returned a verdict for petitioner and awarded $25,000 in general
damages, and $725,000 in punitive damages. The District Court reduced the
punitive damages award to $250,000 on remittitur, but denied respondent's
motion for judgment n.o.v. In reversing, the Court of Appeals emphasized that
the broadcasts concerned matters of public interest, and that they involved "hot
news" prepared under deadline pressure. The Court of Appeals concluded that

the fact that plaintiff was not a public figure cannot be accorded decisive
importance if the recognized important guarantees of the First Amendment are to
be adequately implemented.

415 F.2d at 896. For that reason, the court held that the New York
Times standard applied and, further, directed that judgment be entered for
respondent, holding that, as a matter of law, petitioner's evidence did not meet
that standard.

IV

Petitioner concedes that the police campaign to enforce the obscenity laws was an
issue of public interest, and, therefore, that the constitutional guarantees for
freedom of speech and press imposed limits upon Pennsylvania's power to apply
its libel laws to compel respondent to compensate him in damages for the alleged
defamatory falsehoods broadcast about his involvement. As noted, the narrow
question he raises is whether, because he is not a "public official" or a "public
figure," but a private individual, those limits required that he prove that the
falsehoods resulted from a failure of respondent to exercise reasonable care, or
required that he prove that[p41] the falsehoods were broadcast with knowledge of
their falsity or with reckless disregard of whether they were false or not. That
question must be answered against the background of the functions of the
constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U.S.
75, at 84-85, n. 10 (1966).

Self-governance in the United States presupposes far more than knowledge and
debate about the strictly official activities of various levels of government. The
commitment of the country to the institution of private property, protected by the
Due Process and Just Compensation Clauses in the Constitution, places in private
hands vast areas of economic and social power that vitally affect the nature and
quality of life in the Nation. Our efforts to live and work together in a free society
not completely dominated by governmental regulation necessarily encompass far
more than politics in a narrow sense. "The guarantees for speech and press are
not the preserve of political expression or comment upon public affairs." Time,
Inc. v. Hill, 385 U.S. 374, 388 (1967).

Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.

Thornhill v. Alabama, 310 U.S. 88, 102 (1940). Although the limitations upon civil
libel actions, first held in New York Times to be required by the First Amendment,
were applied in that case in the context of defamatory falsehoods about the
official conduct of a public official, later decisions have disclosed the artificiality, in
terms of the public's interest, of a simple distinction between "public" and
"private" individuals or institutions:

Increasingly in this country, the distinctions between governmental and private

sectors are blurred. . . . In many situations, policy determinations[p42] which
traditionally were channeled through formal political institutions are now
originated and implemented through a complex array of boards, committees,
commissions, corporations, and associations, some only loosely connected with
the Government. This blending of positions and power has also occurred in the
case of individuals so that many who do not hold public office at the moment are
nevertheless intimately involved in the resolution of important public questions. .
..

. . . Our citizenry has a legitimate and substantial interest in the conduct of such
persons, and freedom of the press to engage in uninhibited debate about their
involvement in public issues and events is as crucial as it is in the case of "public
officials."

Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C.J.,
concurring in result).

Moreover, the constitutional protection was not intended to be limited to matters

bearing broadly on issues of responsible government.

[T]he Founders . . . felt that a free press would advance "truth, science, morality,
and arts in general," as well as responsible government.

Id. at 147 (opinion of HARLAN, J.). Comments in other cases reiterate this
judgment that the First Amendment extends to myriad matters of public interest.
In Time, Inc. v. Hill, supra, we had "no doubt that the . . . opening of a new play
linked to an actual incident, is a matter of public interest," 385 U.S. at 388, which
was entitled to constitutional protection. Butts held that an alleged "fix" of a
college football game was a public issue. Associated Press v. Walker, 388 U.S.
130 (1967), a companion case to Butts, established that the public had a similar
interest in the events and personalities involved in federal efforts to enforce a
court decree ordering the enrollment of a Negro student in the University of
Mississippi. Thus, these cases underscore the vitality, as[p43] well as the scope, of
the "profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open." New York Times Co. v.
Sullivan, 376 U.S. at 270-271 (emphasis added).

If a matter is a subject of public or general interest, it cannot suddenly become

less so merely because a private individual is involved, or because, in some
sense, the individual did not "voluntarily" choose to become involved. The public's
primary interest is in the event; the public focus is on the conduct of the
participant and the content, effect, and significance of the conduct, not the
participant's prior anonymity or notoriety.[n11] The present case illustrates the
point. The community has a vital interest in the proper enforcement of its criminal
laws, particularly in an area such as obscenity, where a number of highly
important values are potentially in conflict: the public has an interest both in
seeing that the criminal law is adequately enforced and in assuring that the law is
not used unconstitutionally to suppress free expression. Whether the person
involved is a famous large-scale magazine distributor or a "private" businessman
running a corner newsstand has no relevance in ascertaining whether the public
has an interest in the issue. We honor the commitment to robust debate on public
issues, which is embodied in the First Amendment,[p44] by extending
constitutional protection to all discussion and communication involving matters of
public or general concern, without regard to whether the persons involved are
famous or anonymous.[n12]

Our Brother WHITE agrees that the protection afforded by the First Amendment
depends upon whether the issue involved in the publication is an issue of public
or general concern. He would, however, confine our holding to the situation raised
by the facts in this case, that is, limit it to issues involving "official actions of
public servants." In our view, that might be misleading. It is clear that there has
emerged from our cases decided since New York Times the concept that the First
Amendment's impact upon state libel laws derives not so much from whether the
plaintiff is a "public official," "public figure," or "private individual," as it derives
from the question whether the allegedly defamatory publication concerns a
matter of public or general interest. See T. Emerson, The System of Freedom of
Expression 531-532, 540 (1970). In that circumstance, we think the time has
come forthrightly to announce that the determinant whether the First Amendment
applies to state libel actions is whether the utterance involved concerns an issue
of public or general concern, albeit leaving the[p45] delineation of the reach of that
term to future cases. As our Brother WHITE observes, that is not a problem in
this case, since police arrest of a person for distributing allegedly obscene
magazines clearly constitutes an issue of public or general interest.[n13]

We turn then to the question to be decided. Petitioner's argument that the

Constitution should be held to require that the private individual prove only that
the publisher failed to exercise "reasonable care" in publishing defamatory
falsehoods proceeds along two lines. First, he argues that the private individual,
unlike the public figure, does not have access to the media to counter the
defamatory material, and that the private individual, unlike the public figure, has
not assumed the risk of defamation by thrusting himself into the public arena.
Second, petitioner focuses on the important values served by the law of
defamation in preventing and redressing attacks upon reputation.

We have recognized the force of petitioner's arguments, Time, Inc. v. Hill,

supra, at 391, and we adhere to the caution expressed in that case against "blind
application" of the New York Times standard. Id. at 390. Analysis of the particular
factors involved, however, convinces us that petitioner's arguments cannot be
reconciled with the purposes of the First Amendment, with our cases, and with
the traditional doctrines of libel law itself. Drawing a distinction between
"public"[p46] and "private" figures makes no sense in terms of the First
Amendment guarantees.[n14] The New York Times standard was applied to libel of
a public official or public figure to give effect to the Amendment's function to
encourage ventilation of public issues, not because the public official has any less
interest in protecting his reputation than an individual in private life. While the
argument that public figures need less protection because they can command
media attention to counter criticism may be true for some very prominent people,
even then, it is the rare case where the denial overtakes the original charge.
Denials, retractions, and corrections are not "hot" news, and rarely receive the
prominence of the original story. When the public official or public figure is a
minor functionary, or has left the position that put him in the public eye, see
Rosenblatt v. Baer, supra, the argument loses all of its force. In the vast majority
of libels involving public officials or public figures, the ability to respond through
the media will depend on the same complex factor on which the ability of a
private individual depends: the unpredictable event of the media's continuing
interest in the story. Thus, the unproved, and highly improbable, generalization
that an as-yet undefined class of "public figures" involved in matters of public
concern will be better able to respond[p47] through the media than private
individuals also involved in such matters seems too insubstantial a reed on which
to rest a constitutional distinction. Furthermore, in First Amendment terms, the
cure seems far worse than the disease. If the States fear that private citizens will
not be able to respond adequately to publicity involving them, the solution lies in
the direction of ensuring their ability to respond, rather than in stifling public
discussion of matters of public concern.[n15]

Further reflection over the years since New York Times was decided persuades us
that the view of the "public official" or "public figure" as assuming the risk of
defamation by voluntarily thrusting himself into the public eye bears little
relationship either to the values protected by the First Amendment or to the
nature of our society. We have recognized that "[e]xposure of the self to others in
varying degrees is a concomitant of life in a civilized community." Time, Inc. v.
Hill,[p48] supra at 388. Voluntarily or not, we are all "public" men to some degree.
Conversely, some aspects of the lives of even the most public men fall outside the
area of matters of public or general concern. Seen. 12, supra; Griswold v.
Connecticut, 381 U.S. 479 (1965).[n16] Thus, the idea that certain "public" figures
have voluntarily exposed their entire lives to public inspection, while private
individuals have kept theirs carefully shrouded from public view is, at best, a legal
fiction. In any event, such a distinction could easily produce the paradoxical result
of dampening discussion of issues of public or general concern because they
happen to involve private citizens while extending constitutional encouragement
to discussion of aspects of the lives of "public figures" that are not in the area of
public or general concern.

General references to the values protected by the law of libel conceal important
distinctions. Traditional arguments suggest that libel law protects two separate
interests of the individual: first, his desire to preserve a certain privacy around his
personality from unwarranted intrusion, and, second, a desire to preserve his
public good name and reputation. See Rosenblatt v. Baer, 383 U.S. at 92
(STEWART, J., concurring). The individual's interest in privacy -- in preventing
unwarranted intrusion upon the private aspects of his life -- is not involved in this
case, or even in the class of cases under consideration, since, by hypothesis, the
individual is involved in matters of public or general concern.[n17] In[p49] the
present case, however, petitioner's business reputation is involved, and thus the
relevant interests protected by state libel law are petitioner's public reputation
and good name.

These are important interests. Consonant with the libel laws of most of the
States, however, Pennsylvania's libel law subordinates these interests of the
individual in a number of circumstances. Thus, high government officials are
immune from liability -- absolutely privileged -- even if they publish defamatory
material from an improper motive, with actual malice, and with knowledge of its
falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958). This
absolute privilege attaches to judges, attorneys at law in connection with a
judicial proceeding, parties and witnesses to judicial proceedings, Congressmen
and state legislators, and high national and state executive officials. Restatement
of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to report
the false defamatory material originally published under the absolute privileges
listed above, if done accurately. Sciandra v. Linett, 409 Pa. 595, 187 A.2d 586
(1963).

Even without the presence of a specific constitutional command, therefore,

Pennsylvania libel law recognizes that society's interest in protecting individual
reputation[p50] often yields to other important social goals. In this case, the vital
needs of freedom of the press and freedom of speech persuade us that allowing
private citizens to obtain damage judgments on the basis of a jury determination
that a publisher probably failed to use reasonable care would not provide
adequate "breathing space" for these great freedoms. Reasonable care is an
"elusive standard" that

would place on the press the intolerable burden of guessing how a jury might
assess the reasonableness of steps taken by it to verify the accuracy of every
reference to a name, picture or portrait.

Time, Inc. v. Hill, 385 U.S. at 389. Fear of guessing wrong must inevitably cause
self-censorship, and thus create the danger that the legitimate utterance will be
deterred. Cf. Speer v. Randall, 357 U.S. 513, 526 (1958).

Moreover, we ordinarily decide civil litigation by the preponderance of the

evidence. Indeed, the judge instructed the jury to decide the present case by that
standard. In the normal civil suit where this standard is employed,
we view it as no more serious in general for there to be an erroneous verdict in
the defendant's favor than for there to be an erroneous verdict in the plaintiff's
favor.

In re Winship, 397 U.S. 358, 371 (1970) (HARLAN, J., concurring). In libel cases,
however, we view an erroneous verdict for the plaintiff as most serious. Not only
does it mulct the defendant for an innocent misstatement -- the three-quarter
million dollar jury verdict in this case could rest on such an error -- but the
possibility of such error, even beyond the vagueness of the negligence standard
itself, would create a strong impetus toward self-censorship, which the First
Amendment cannot tolerate. These dangers for freedom of speech and press led
us to reject the "reasonable man" standard of liability as "simply inconsistent"
with our national commitment under the First Amendment when sought to be
applied to the[p51] conduct of a political campaign. Monitor Patriot Co. v. Roy, 401
U.S. 265, 276 (1971). The same considerations lead us to reject that standard
here.

We are aware that the press has, on occasion, grossly abused the freedom it is
given by the Constitution. All must deplore such excesses. In an ideal world, the
responsibility of the press would match the freedom and public trust given it. But
from the earliest days of our history, this free society, dependent as it is for its
survival upon a vigorous free press, has tolerated some abuse. In 1799, James
Madison made the point in quoting (and adopting) John Marshall's answer to
Talleyrand's complaints about American newspapers, American State Papers, 2
Foreign Relations 196 (U.S. Cong. 1832):

"Among those principles deemed sacred in America, among those sacred rights
considered as forming the bulwark of their liberty, which the Government
contemplates with awful reverence and would approach only with the most
cautious circumspection, there is no one of which the importance is more deeply
impressed on the public mind than the liberty of the press. That this liberty is
often carried to excess, that it has sometimes degenerated into licentiousness, is
seen and lamented, but the remedy has not yet been discovered. Perhaps it is an
evil inseparable from the good with which it is allied; perhaps it is a shoot which
cannot be stripped from the stalk without wounding vitally the plant from which it
is torn. However desirable those measures might be which might correct without
enslaving the press, they have never yet been devised in America."

6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906) (emphasis in

original).
This Court has recognized this imperative:

[T]o insure the ascertainment and publication of the truth about public affairs, it
is essential that the First Amendment[p52] protect some erroneous publications as
well as true ones.

St. Amant v. Thompson, 390 U.S. 727, 732 (1968). We thus hold that a libel action,
as here, by a private individual against a licensed radio station for a defamatory
falsehood in a newscast relating to his involvement in an event of public or
general concern may be sustained only upon clear and convincing proof that the
defamatory falsehood was published with knowledge that it was false or with
reckless disregard of whether it was false or not.[n18] Calculated falsehood, of
course, falls outside "the fruitful exercise of the right of free speech." Garrison v.
Louisiana, 379 U.S. 64, 75 (1964).

Our Brothers HARLAN and MARSHALL reject the "knowing or reckless falsehood
standard" in favor of a test that would require, at least, that the person defamed
establish that the publisher negligently failed to ascertain the truth of his story;
they would also limit any recovery to "actual" damages. For the reasons we have
stated, the negligence standard gives insufficient breathing space to First
Amendment values. Limiting recovery to actual damages has the same defects. In
the first instance, that standard, too, leaves the First Amendment insufficient
elbow room within which to function. It is not simply the possibility of a judgment
for damages that results in self-censorship. The very possibility of having to
engage in litigation, an expensive and protracted process,[p53] is threat enough to
cause discussion and debate to "steer far wider of the unlawful zone," thereby
keeping protected discussion from public cognizance. Speiser v. Randall, 357 U.S.
at 526. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U.S. 313, 334-339 (1971). Too, a small newspaper suffers equally
from a substantial damage award, whether the label of the award be "actual" or
"punitive." The real thrust of Brothers HARLAN's and MARSHALL's position,
however, is their assertion that their proposal will not "constitutionalize" the
factfinding process. But this clearly is not the way their test would work in
practice. Their approach means only that factfinding will shift from an inquiry into
whether the defamatory statements were knowingly or recklessly uttered to the
inquiry whether they were negligently uttered, and if so, to an inquiry whether
plaintiff suffered "actual" damages. This latter inquiry will involve judges even
more deeply in factfinding. Would the mere announcement by a state legislature
that embarrassment and pain and suffering are measurable actual losses mean
that such damages may be awarded in libel actions? No matter how the problem
is approached, this Court would ultimately have to fashion constitutional
definitions of "negligence" and of "actual damages."

Aside from these particularized considerations, we have repeatedly recognized

that courts may not avoid an excursion into factfinding in this area simply
because it is time-consuming or difficult. We stated inPennekamp v. Florida, 328
U.S. 331, 335 (1946), that:

The Constitution has imposed upon this Court final authority to determine the
meaning and application of those words of that instrument which require
interpretation to resolve judicial issues. With that responsibility, we are compelled
to examine for ourselves the statements in issue and the
circumstances[p54] under which they were made to see whether or not they . . .
are of a character which the principles of the First Amendment, as adopted by the
Due Process Clause of the Fourteenth Amendment, protect.

(Footnote omitted.) Clearly, then, this Court has an "obligation to test challenged
judgments against the guarantees of the First and Fourteenth Amendments," and,
in doing so, "this Court cannot avoid making an independent constitutional
judgment on the facts of the case." Jacobellis v. Ohio, 378 U.S. 184, 190 (1964).
The simple fact is that First Amendment questions of "constitutional fact" compel
this Court's de novo review. See Edwards v. South Carolina, 372 U.S. 229, 235
(1963); Blackburn v. Alabama, 361 U.S. 199, 205 n. 5 (1960).

VI

Petitioner argues that the instructions on punitive damages either cured or

rendered harmless the instructions permitting an award of general damages
based on a finding of failure of WIP to exercise reasonable care. We have doubts
of the merits of the premise,[n19] but even[p55] assuming that instructions were
given satisfying the standard of knowing or reckless falsity, the evidence was
insufficient to sustain an award for that petitioner under that standard. In these
cases, our

duty is not limited to the elaboration of constitutional principles; we must also, in

proper cases, review the evidence to make certain that those principles have
been constitutionally applied.

New York Times Co. v. Sullivan, 376 U.S. at 285. Our independent analysis of the
record leads us to agree with the Court of Appeals that none of the proofs,
considered either singly or cumulatively, satisfies the constitutional standard with
the convincing clarity necessary to raise a jury question whether the defamatory
falsehoods were broadcast with knowledge that they were false or with reckless
disregard of whether they were false or not.

The evidence most strongly supporting petitioner is that concerning his visit to
WIP's studio where a part-time newscaster hung up the telephone when
petitioner disputed the newscaster's statement that the District Attorney had
characterized petitioner's magazines as obscene. This contact occurred, however,
after all but one of the second series of broadcasts had been aired. The incident
has no probative value insofar as it bears on petitioner's case as to the first series
of broadcasts. That portion of petitioner's case was based upon the omission from
the first two broadcasts at 6 and 6:30 p.m. on October 4 of the word "alleged"
preceding a characterization of the magazines distributed by petitioner. But that
omission was corrected with the 8 p.m. broadcast, and was not repeated in the
five broadcasts that followed. And we agree with the analysis of the Court of
Appeals that led that court, and leads us, to conclude that the episode failed to
provide evidence satisfying the New York Times standard insofar as it bore on
petitioner's[p56] case based upon the broadcasts on and after October 21
concerning petitioner's lawsuit:

Only one broadcast took place after this conversation. It is attacked on the
ground that it contains an inaccurate statement concerning plaintiff's injunction
action in that it Stated that the district attorney considered plaintiff's publications
to be smut and immoral literature. The transcript of the testimony shows that
plaintiff's own attorney, when questioning defendant' representative concerning
the allegedly defamatory portion of the last broadcast, said that he was not
questioning its "accuracy." Furthermore, his examination of the same witness
brought out that defendant's representative confirmed the story with the judge
involved before the broadcast was made. We think that the episode described
failed to provide evidence of actual malice with the requisite convincing clarity to
create a jury issue under federal standards.

415 F.2d at 897.

Petitioner argues finally that WIP's failure to communicate with him to learn his
side of the case and to obtain a copy of the magazine for examination, sufficed to
support a verdict under the New York Timesstandard. But our
cases are clear that reckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated before publishing.
There must be sufficient evidence to permit the conclusion that the defendant in
fact, entertained serious doubts as to the truth of his publication.

St. Amant v. Thompson, 390 U.S. at 731. Respondent here relied on information
supplied by police officials. Following petitioner's complaint about the accuracy of
the broadcasts, WIP checked its last report with the judge who presided in the
case. While we may assume that the District Court correctly held to be
defamatory[p57] respondent's characterizations of petitioner's business as "the
smut literature racket," and of those engaged in it as "girlie-book peddlers," there
is no evidence in the record to support a conclusion that respondent "in fact
entertained serious doubts as to the truth" of its reports.

Affirmed.

MR. JUSTICE Douglas took no part in the consideration or decision of this case.

1.
See, e.g., Associated Press v. Walker, 388 U.S. 130 (1967) (retired Army general
against a wire service); Curtis Publishing Co. v. Butts,388 U.S. 130 (1967) (former
football coach against publisher of magazine); Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81 (1967) (court clerk against newspaper); Greenbelt Publishing
Assn. v. Bresler,398 U.S. 6 (1970) (state representative and real estate developer
against publisher of newspaper); Ocala Star-Banner Co. v. Damron, 401 U.S.
295 (1971) (defeated candidate for tax assessor against publisher of
newspaper); Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) (candidate for United
States Senate against publisher of newspaper);Time, Inc. v. Pape, 401 U.S.
279 (1971) (police official against publisher of magazine). However, Rosenblatt v.
Baer, 383 U.S. 75(1966), involved an action against a newspaper columnist by a
former county recreation area supervisor; St. Amant v. Thompson, 390 U.S.
727 (1968), involved an action of a deputy sheriff against a defeated candidate for
the United States Senate; and Linn v. Plant Guard Workers, 383 U.S. 53 (1966),
involved an action by an official of an employer against a labor union.

Garrison v. Louisiana, 379 U.S. 64 (1964), held that the New York Times standard
measured also the constitutional restriction upon state power to impose criminal
sanctions for criticism of the official conduct of public officials. The Times standard
of proof has also been required to support the dismissal of a public school teacher
based on false statements made by the teacher in discussing issues of public
importance. Pickering v. Board of Education, 391 U.S. 563 (1968). The same test
was applied to suits for invasion of privacy based on false statements where,
again, a matter of public interest was involved.Time, Inc. v. Hill, 385 U.S.
374 (1967). The opinion in that case expressly reserved the question presented
here -- whether the test applied in a libel action brought by a private
individual. Id. at 391.

2.
This term is from Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193, 214
(1890). Our discussion of matters of "public or general interest" appears in Part
IV, infra of this opinion.

3.
Petitioner does not question that the First Amendment guarantees of freedom of
speech and freedom of the press apply to respondent's newscasts.

4.
At trial, Captain Ferguson testified that his definition of obscenity was "anytime
the private parts is showing of the female or the private parts is shown of males."

5.
Several more newsstand operators were arrested between October 1 and October
4.

6.
The record neither confirms nor refutes petitioner's contention that his arrest was
fortuitous. Nor does the record reflect whether or not petitioner's magazines were
the subject either of the original citizens' complaints or of the initial police
purchases.

7.
The complaint named as defendants the publishers of two newspapers, a
television station, the city of Philadelphia, and the district attorney, but not
respondent WIP. The plaintiffs were petitioner, the partnership of himself and his
wife which carried on the business, and the publisher of the nudist magazines
that he distributed.

8.
The text of the final broadcast read as follows:

U.S. District Judge John Lord told WIP News just before air time that it may be
another week before he will be able to render a decision as to whether he has
jurisdiction in the case of two publishers and a distributor who wish to restrain
the D.A.'s office, the police chief, a TV station and the Bulletin for either making
alleged raids of their publications, considered smut and immoral literature by the
defendants named, or publicizing that they are in that category. Judge Lord then
will be in a position to rule on injunction proceedings asked by the publishers and
distributor claiming the loss of business in their operations.

9.
The reference here, of course, is to common law "malice," not to the
constitutional standard of New York Times Co. v. Sullivan, supra. See n. 18, infra.

10.
Pa.Stat.Ann., Tit. 12, § 1584a (Supp. 1971) provides:

(1) In an action for defamation, the plaintiff has the burden of proving, when the
issue is properly raised:
(a) The defamatory character of the communication;

(b) Its publication by the defendant;

(c) Its application to the plaintiff;

(d) The recipient's understanding of its defamatory meaning;

(e) The recipient's understanding of it as intended to be applied to the plaintiff;

(f) Special harm resulting to the plaintiff from its publication;

(g) Abuse of a conditionally privileged occasion.

(2) In an action for defamation, the defendant has the burden of proving, when
the issue is properly raised:

(a) The truth of the defamatory communication;

(b) The privileged character of the occasion on which it was published;

(c) The character of the subject matter of defamatory comment as of public

concern.

See Restatement of Torts § 613.

11.
For example, the public's interest in the provocative speech that was made during
the tense episode on the campus of the University of Mississippi would certainly
have been the same in Associated Press v. Walker, n. 1, supra, if the speaker had
been an anonymous student and not a well known retired Army general. Walker
also illustrates another anomaly of focusing analysis on the public "figure" or
public "official" status of the individual involved. General Walker's fame stemmed
from events completely unconnected with the episode in Mississippi. It seems
particularly unsatisfactory to determine the extent of First Amendment protection
on the basis of factors completely unrelated to the newsworthy events being
reported. See also Greenbelt Publishing Assn. v. Bresler, 398 U.S. 6 (1970).
 12.
We are not to be understood as implying that no area of a person's activities falls
outside the area of public or general interest. We expressly leave open the
question of what constitutional standard of proof, if any, controls the enforcement
of state libel laws for defamatory falsehoods published or broadcast by news
media about a person's activities not within the area of public or general interest.

We also intimate no view on the extent of constitutional protection, if any, for

purely commercial communications made in the course of business. See Valentine
v. Chrestenen, 316 U.S. 52 (1942). Compare Breard v. Alexandria, 341 U.S.
622 (1951), with Martin v. Struthers, 319 U.S. 141 (1943). But see New York Times
Co. v. Sullivan, 376 U.S. at 265-266; Linn v. Plant Guard Workers, 383 U.S.
53 (1966).

13.
Our Brother WHITE states in his opinion:

[T]he First Amendment gives . . . a privilege to report . . . the official actions of

public servants in full detail, with no requirement that . . . the privacy of an
individual involved in . . . the official action be spared from public view.

Post at 62. This seems very broad. It implies a privilege to report, for example,
such confidential records as those of juvenile court proceedings.

14.
See United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404
F.2d 706 (CA9 1968), cert. denied, 394 U.S. 921(1969); Time, Inc. v. McLaney, 406
F.2d 565 (CA5), cert. denied, 395 U.S. 922 (1969); Bon Air Hotel, Inc. v. Time,
Inc., 426 F.2d 858, 861 n. 4, and cases cited therein (CA5 1970). See
generally Cohen, A New Niche for the Fault Principle: A Forthcoming
Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371 (1970); Kalven,
The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967
Sup.Ct.Rev. 267; Note, Public Official and Actual Malice Standards: The Evolution
of New York Times Co. v. Sullivan, 56 Iowa L.Rev. 393, 398-400 (1970); Note,
The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75
Yale L.J. 642 (1966).

15.
Some States have adopted retraction statutes or right-of-reply
statutes. See Donnelly, The Right of Reply: An Alternative to an Action for Libel,
34 Va.L.Rev. 867 (1948); Note, Vindication of the Reputation of a Public Official,
80 Harv.L.Rev. 1730 (1967). Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S.
367 (1969).

One writer, in arguing that the First Amendment itself should be read to
guarantee a right of access to the media not limited to a right to respond to
defamatory falsehoods, has suggested several ways the law might encourage
public discussion. Barron, Access to the Press -- A New First Amendment Right,
80 Harv.L.Rev. 1641, 1666-1678 (1967). It is important to recognize that the
private individual often desires press exposure either for himself, his ideas, or his
causes. Constitutional adjudication must take into account the individual's interest
in access to the press, as well as the individual's interest in preserving his
reputation, even though libel actions, by their nature, encourage a narrow view of
the individual's interest, since they focus only on situations where the individual
has been harmed by undesired press attention. A constitutional rule that deters
the press from covering the ideas or activities of the private individual thus
conceives the individual's interest too narrowly.

16.
This is not the less true because the area of public concern in the cases of
candidates for public office and of elected public officials is broad. See Monitor
Patriot Co. v. Roy, 401 U.S. 265 (1971).

17.
Our Brothers HARLAN and MARSHALL would not limit the application of the First
Amendment to private libels involving issues of general or public interest. They
would hold that the Amendment covers all private libels, at least where state law
permits the defense of truth. The Court has not yet had occasion to consider the
impact of the First Amendment on the application of state libel laws to libels
where no issue of general or public interest is involved. See 403 U.S. 29 n1"]n.
1,supra. However, n. 1, supra. However, Griswold v. Connecticut, 381 U.S.
479 (1965), recognized a constitutional right to privacy, and at least one
commentator has discussed the relation of that right to the First Amendment.
Emerson, supra, at 544-562. Since all agree that this case involves an issue of
public or general interest, we have no occasion to discuss that relationship. See n.
12, supra. We do not, however, share the doubts of our Brothers HARLAN and
MARSHALL that courts would be unable to identify interests in privacy and dignity.
The task may be difficult, but not more so than other tasks in this field.

18.
At oral argument, petitioner argued that

the little man can't show actual malice. How can George Rosenbloom show that
there was actual malice in Metromedia? They never heard of him before.

Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plaintiff, or bad
motives, are not elements of the New York Times standard. That standard
requires only that the plaintiff prove knowing or reckless falsity. That burden, and
no more, is the plaintiff's whether "public official," "public figure," or "little man."
It may be that jury instructions that are couched only in terms of knowing or
reckless falsity, and omit reference to "actual malice," would further a proper
application of theNew York Times standard to the evidence.

19.
The instructions authorized an award of punitive damages upon a finding that a
falsehood

arose from a bad motive or . . . that it was published with reckless indifference to
the truth . . . punitive damages are awarded as a deterrent from future conduct
of the same sort.

App. 333a. The summation of petitioner's counsel conceded that respondent

harbored no ill-will toward petitioner, but, following the suggestion of the
instructions that punitive damages are "'smart' money," App. 313a, argued that
they should be assessed because

[respondent] must be careful the way they impart news information and you can
punish them if they weren't because you could say that was malicious.

Ibid. This was an obvious invitation based on the instructions to award punitive
damages for carelessness. Thus, the jury was allowed, and even encouraged, to
find malice and award punitive damages merely on the basis of negligence and
bad motive.

TOP

Concurrence

BLACK, J., Concurring Opinion

MR. JUSTICE BLACK, concurring in the judgment.

I concur in the judgment of the Court for the reasons stated in my concurring
opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964), in my
concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130,
170 (1967), and in MR. JUSTICE DOUGLAS' concurring opinion in Garrison v.
Louisiana, 379 U.S. 64, 80 (1964). I agree, of course, that First Amendment
protection extends to

all discussion and communication involving matters of public or general concern,

without regard to whether the persons involved are famous or anonymous.

Ante at 44. However, in my view, the First Amendment does not permit the
recovery of libel judgments against the news media even when statement are
broadcast with knowledge they are false. As I stated inCurtis Publishing Co. v.
Butts, supra,

[I]t is time for this Court to abandon New York Times Co. v. Sullivanand adopt
the rule to the effect that the First Amendment was intended to leave the press
free from the harassment of libel judgments.

Id. at 172.

TOP
Concurrence

WHITE, J., Concurring Opinion

MR. JUSTICE WHITE, concurring in the judgment.

Under existing law, the First Amendment is deemed to permit recoveries for
damaging falsehoods published[p58] about public officials or public figures only if
the defamation is knowingly or recklessly false. But, until today, the First
Amendment has not been thought to prevent citizens who are neither public
officials nor public figures from recovering damages for defamation upon proving
publication of a false statement injurious to their reputation. There has been no
necessity to show deliberate falsehood, recklessness, or even negligence.

The Court has now decided that the First Amendment requires further restrictions
on state defamation laws. MR. JUSTICE BRENNAN and two other members of the
Court would require proof of knowing or reckless misrepresentation of the facts
whenever the publication concerns a subject of legitimate public interest, even
though the target is a "private" citizen. Only residual areas would remain in which
a lower degree of proof would obtain.

Three other members of the Court also agree that private reputation has enjoyed
too much protection, and the media too little. But, in the interest of protecting
reputation, they would not roll back State laws so far. They would interpret the
First Amendment as proscribing liability without fault, and would equate non-
negligent falsehood with faultless conduct. The burden of the damaging lie would
be shifted from the media to the private citizen unless the latter could prove
negligence or some higher degree of fault. They would also drastically limit the
authority of the States to award compensatory and punitive damages for injury to
reputation.

MR. JUSTICE BLACK, consistently with the views that he and MR. JUSTICE
DOUGLAS have long held, finds no room in the First Amendment for any
defamation recovery whatsoever.

Given this spectrum of proposed restrictions on state defamation laws, and

assuming that MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS will continue in
future cases[p59] to support the severest of the restrictions, it would seem that at
least five members of the Court would support each of the following rules:
For public officers and public figures to recover for damage to their reputations
for libelous falsehoods, they must prove either knowing or reckless disregard of
the truth. All other plaintiffs must prove at least negligent falsehood, but if the
publication about them was in an area of legitimate public interest, then they too
must prove deliberate or reckless error. In all actions for libel or slander, actual
damages must be proved, and awards of punitive damages will be strictly limited.

II

For myself, I cannot join any of the opinions filed in this case. Each of them
decides broader constitutional issues and displaces more state libel law than is
necessary for the decision in this case. As I have said, MR. JUSTICE BRENNAN
would extend the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S.
254 (1964), to publications upon any "subject of public or general interest." See
ante at 43. He would thereby extend the constitutional protection to false and
damaging, but nonmalicious, publications about such matters as the health and
environmental hazards of widely used manufactured products, the mental and
emotional stability of executives of business establishments, and the racial and
religious prejudices of many groups and individuals. All of these are, of course,
subjects of real concern, and arguments for placing them within the scope of New
York Timesare by no means frivolous.

For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN's
opinion is both too severe and too limited. They would make more sweeping
incursions into state tort law, but purportedly with less destructive weapons. They
would permit suit by some plaintiffs[p60] barred under MR. JUSTICE BRENNAN's
opinion, but would require all plaintiffs to prove at least negligence before any
recovery would be allowed.

I prefer at this juncture not to proceed on such a broad front. I am quite sure
that New York Times Co. v. Sullivan was the wiser course, but I am unaware that
state libel laws with respect to private citizens have proved a hazard to the
existence or operations of the communications industry in this country. Some
members of the Court seem haunted by fears of self-censorship by the press and
of damage judgments that will threaten its financial health. But technology has
immeasurably increased the power of the press to do both good and evil. Vast
communication combines have been built into profitable ventures. My interest is
not in protecting the treasuries of communicators, but in implementing the First
Amendment by insuring that effective communication which is essential to the
continued functioning of our free society. I am not aware that self-censorship has
caused the press to tread too gingerly in reporting "news" concerning private
citizens and private affairs, or that the reputation of private citizens has received
inordinate protection from falsehood. I am not convinced that we must fashion a
constitutional rule protecting a whole range of damaging falsehoods, and so shift
the burden from those who publish to those who are injured.

I say this with considerable deference, since all my Brethren have contrary views.
But I would not nullify a major part of state libel law until we have given the
matter the most thorough consideration, and can articulate some solid First
Amendment grounds based on experience and our present condition. As it is,
today's experiment rests almost entirely on theoretical grounds, and represents a
purely intellectual derivation from what are thought to be important principles of
tort[p61] law as viewed in the light of the primacy of the written and spoken word.

This case lends itself to more limited adjudication. New York Times Co. v.
Sullivan itself made clear that discussion of the official actions of public servants
such as the police is constitutionally privileged. "The right of free public discussion
of the stewardship of public officials" is, in the language of that case, "a
fundamental principle of the American form of government." 376 U.S. at 275.
Discussion of the conduct of public officials cannot, however, be subjected to
artificial limitations designed to protect others involved in an episode with officials
from unfavorable publicity. Such limitations would deprive the public of full
information about the official action that took place. In the present case, for
example, the public would learn nothing if publication only of the fact that the
police made an arrest were permitted; it is also necessary that the grounds for
the arrest and, in many circumstances, the identity of the person arrested, be
stated. In short, it is rarely informative for a newspaper or broadcaster to state
merely that officials acted unless he also states the reasons for their action and
the persons whom their action affected.

Nor can New York Times be read as permitting publications that invade the
privacy or injure the reputations of officials, but forbidding those that invade the
privacy or injure the reputations of private citizens against whom official action is
directed. New York Times gives the broadcasting media and the press the right
not only to censure and criticize officials, but also to praise them, and the
concomitant right to censure and criticize their adversaries. To extend
constitutional protection to criticism only of officials would be to authorize
precisely that sort of thought control that the First Amendment forbids
government to exercise.[p62]
I would accordingly hold that, in defamation actions, absent actual malice as
defined in New York Times Co. v. Sullivan, the First Amendment gives the press
and the broadcast media a privilege to report and comment upon the official
actions of public servants in full detail, with no requirement that the reputation or
the privacy of an individual involved in or affected by the official action be spared
from public view. Since respondent Metromedia did nothing more in the instant
case, I join in holding its broadcasts privileged. I would not, however, adjudicate
cases not now before the Court.

TOP

Dissent

HARLAN, J., Dissenting Opinion

MR. JUSTICE HARLAN, dissenting.

The very facts of this case demonstrate that uncritical acceptance of the
Pennsylvania libel law here involved would be inconsistent with those important
First and Fourteenth Amendment values we first treated with in an analogous
context in New York Times Co. v. Sullivan,376 U.S. 254 (1964). However, as the
plurality opinion implicitly recognizes, only an undiscriminating assessment of
those values would lead us to extend the New York Times rule in full force to all
purely private libels. My Brother BRENNAN's opinion would resolve the dilemma
by distinguishing those private libels that arise out of events found to be of
"public or general concern" from those that do not, and subjecting the former to
full-scale application of the New York Timesrule.

For the reasons set forth in Part I of my Brother MARSHALL's dissent, I cannot
agree to such a solution. As he so well demonstrates, the principal failing of the
plurality opinion is its inadequate appreciation of the limitations imposed by the
legal process in accommodating the tension between state libel laws and the
federal constitutional protection given to freedom of speech and press.[p63]

Once the evident need to balance the values underlying each is perceived, it
might seem, purely as an abstract matter, that the most utilitarian approach
would be to scrutinize carefully every jury verdict in every libel case, in order to
ascertain whether the final judgment leaves fully protected whatever First
Amendment values[n1] transcend the legitimate state interest in protecting the
particular plaintiff who prevailed. This seems to be what is done in the plurality
opinion. But we did not embrace this technique in New York Times,
supra. Instead, as my Brother MARSHALL observes, we there announced a rule of
general application, not ordinarily dependent for its implementation upon a case-
by-case examination of trial court verdicts. See also my dissent in Time, Inc. v.
Pape, 401 U.S. 279, 293 (1971). Nor do I perceive any developments in the seven
years since we decided New York Times, supra, that suggest our original method
should now be abandoned. At least where we can discern generally applicable
rules that should balance with fair precision the competing interests at stake,
such rules should be preferred to the plurality's approach both in order to
preserve a measure of order and predictability in the law that must govern the
daily conduct of affairs and to avoid subjecting the press to judicial second-
guessing of the newsworthiness of each item they print. Consequently, I fully
concur in Part I of MR. JUSTICE MARSHALL's dissent.[p64]

Further, I largely agree with the alternative proposals of that dissent. I, too, think
that, when dealing with private libel, the States should be free to define for
themselves the applicable standard of care so long as they do not impose liability
without fault; that a showing of actual damage should be a requisite to recovery
for libel; and that it is impermissible, given the substantial constitutional values
involved, to fail to confine the amount of jury verdicts in such cases within any
ascertainable limits. However, my reasons for so concluding are somewhat
different than his, and I therefore reach a different result than he does with
respect to the tolerable limits of punitive damages.

I think we all agree on certain core propositions. First, as a general matter, the
States have a perfectly legitimate interest, exercised in a variety of ways, in
redressing and preventing careless conduct, no matter who is responsible for it,
that inflicts actual, measurable injury upon individual citizens. Secondly, there is
no identifiable value worthy of constitutional protection in the publication of
falsehoods. Third, although libel law provides that truth is a complete defense,
that principle, standing alone, is insufficient to satisfy the constitutional interest in
freedom of speech and press. For we have recognized that it is inevitable that
there will be "some error in the situation presented in free debate," Time, Inc. v.
Hill, 385 U.S. 374, 406 (1967) (opinion of this writer), a process that needs
"breathing space," NAACP v. Button,371 U.S. 415, 433 (1963), to flourish, and that
"putting to the preexisting prejudices of a jury the determination of what is ‘true'
may effectively institute a system of censorship." Time, Inc. v. Hill, supra,at 406.
Moreover, any system that punishes certain speech is likely to induce self-
censorship by those who would otherwise[p65] exercise their constitutional
freedom. Given the constitutionally protected interest in unfettered speech, it
requires an identifiable, countervailing state interest, consistent with First
Amendment values, to justify a regulatory scheme that produces such results.
And, because the presence of such values dictates closer scrutiny of this aspect of
state tort law than the Fourteenth Amendment would otherwise command, it may
well be that certain rules, impervious to constitutional attack when applied to
ordinary human conduct, may have to be altered or abandoned where used to
regulate speech. Finally, as determined in New York Times, the constitutional
interest in tolerance of falsehood, as well as the need to adjust competing societal
interests, prohibit, at a minimum, the imposition of liability without fault.

The precise standard of care necessary to achieve these goals is, however, a
matter of dispute, as is the range of penalties a State may prescribe for a breach
of that standard. In analyzing these problems, it is necessary to begin with a
general analytical framework that defines those competing interests that must be
reconciled. My Brother MARSHALL's opinion, I think, dwells too lightly upon the
nature of the legitimate countervailing interests promoted by the State's libel law,
and, as a result, overstates the case against punitive damages. Because we deal
with a set of legal rules that treat truth as a complete defense, it strikes, I think,
somewhat wide of the mark to treat the State's interest as one of protecting
reputations from "unjustified invasion." Post at 78. By hypothesis, the respondent
here was free to reveal any true facts about petitioner's "obscure private
life."[n2][p66]

Given the defense of truth, it is my judgment that, in order to assure that it

promotes purposes consistent with First Amendment values, the legitimate
function of libel law must be understood as that of compensating individuals for
actual, measurable harm caused by the conduct of others. This can best be
demonstrated by postulating a law that subjects publishers to jury verdicts for
falsehoods that have done the plaintiff no harm. In my view, such a rule can only
serve a purpose antithetical to those of the First Amendment. It penalizes speech
not to redress or avoid the infliction of harm, but only to deter the press from
publishing material regarding private behavior that turns out to be false simply
because of its falsity. This the First Amendment will not tolerate. Where the State
cannot point to any tangible danger, even knowingly erroneous publication is
entitled to constitutional protection because of the interest in avoiding an inquiry
into the mere truth or falsity of speech. Moreover, such a scheme would impose a
burden on speaking not generally placed upon constitutionally unprotected
conduct -- the payment of private fines for conduct which, although not
conformed to established limits of care, causes no harm in fact.

Conversely, I think that, where the purpose and effect of the law are to redress
actual and measurable injury to private individuals that was reasonably
foreseeable as a result of the publication, there is no necessary conflict with the
values of freedom of speech. Just as an automobile, negligently driven, can cost a
person his physical and mental wellbeing and the fruits of his labor, so can a
printing press, negligently set. While the First Amendment protects the press
from the imposition of special liabilities upon it,

[t]o exempt a publisher, because of the nature of his calling, from an imposition
generally exacted from other members of the community would be to extend a
protection not required by the constitutional[p67] guarantee.

Curtis Publishing Co. v. Butts, 388 U.S. 130, 160 (1967) (opinion of this writer). A
business

is not immune from regulation because it is an agency of the press. The publisher
of a newspaper has no special immunity from the application of general laws. He
has no special privilege to invade the rights and liberties of others.

Associated Press v. NLRB, 301 U.S. 103, 132-133 (1937). That the damage has
been inflicted by words, rather than other instrumentalities, cannot insulate it
from liability. States may legitimately be required to use finer regulatory tools
where dealing with "speech," but they are not wholly disabled from exacting
compensation for its measurable adverse consequences. If this is not so, it is
difficult to understand why governments may, for example, proscribe
"misleading" advertising practices or specify what is "true" in the dissemination of
consumer credit advertisements.

Nor does this interest in compensating victims of harmful conduct somehow

disappear when the damages inflicted are great. So long as the effect of the law
of libel is simply to make publishers pay for the harm they cause, and the
standard of care required is appropriately adjusted to take account of the special
countervailing interests in an open exchange of ideas, the fact that this may
involve the payment of substantial sums cannot plausibly be said to raise serious
First Amendment problems. If a newspaper refused to pay its bills because to do
so would put it out of business, would the First Amendment dictate that this be
treated as a partial or complete defense? If an automobile carrying a newsman to
the scene of a history-making event ran over a pedestrian, would the size of the
verdict, if based upon generally applicable tort law principles, have to be assessed
against the probability that it would deter broadcasters from news gathering
before it could pass muster under the First Amendment?[p68]

However, without foreclosing the possibility that other limiting principles may be
surfaced by subsequent experience, I do think that, since we are dealing, by
hypothesis, with infliction of harm through the exercise of freedom of speech and
the press to which the Constitution gives explicit protection, recoverable damages
must be limited to those consequences of the publication which are reasonably
foreseeable. The usual tort rule seems to be that, once some foreseeable injury
has been inflicted, the negligent defendant must compensate for all damages he
proximately caused in fact, no matter how peculiar were the circumstances of the
particular plaintiff involved. W. Prosser, The Law of Torts § 50 (3d ed.1964).
However, our cases establish, I think, that, unless he has knowledge to the
contrary, a speaker is entitled to presume that he is addressing an audience that
is not especially susceptible to distress at the specter of open, uninhibited, robust
speech. Cohen v. California, ante, p. 15. See also Brandenburg v. Ohio,395 U.S.
444 (1969); Butler v. Michigan, 352 U.S. 380 (1957). Thus, I think the speaker
should be free from a duty to compensate for actual harm inflicted by his
falsehoods where the defamation would not have caused such harm to a person
of average sensibilities unless, of course, the speaker knew that his statements
were made concerning an unusually sensitive person. In short, I think the First
Amendment does protect generally against the possibility of self-censorship in
order to avoid unwitting affronts to the frail and the queasy.

II

Of course, it does not follow that, so long as libel law performs the same
compensatory function as civil law generally, it is necessarily legitimate in all its
various applications. The presence of First Amendment values means that the
State can be compelled to utilize finer,[p69] more discriminating instruments of
regulation where necessary to give more careful protection to these
countervailing interests. New York Times, supra, and Curtis Publishing Co.,
supra, established that, where the injured party is a "public figure" or a "public
official," the interest in freedom of speech dictates that the States forgo their
interest in compensating for actual harm, even upon a basis generally applicable
to all members of society, unless the plaintiff can show that the injurious
publication was false and was made "with ‘actual malice' -- that is, with
knowledge that it was false or with reckless disregard of whether it was false or
not." New York Times, supra, at 280. Tacitly recognizing that it would unduly
sacrifice the operative legitimate state interests to extend this rule to all cases
where the injured party is simply a private individual, the plurality opinion would
nevertheless apply it where the publication concerned such a person's
"involvement in an event of public or general concern." Ante at 52. I would not
overrule New York Times or Curtis Publishing Co., and I do agree, as indicated
above, that making liability turn on simple falsity in the purely private libel area is
not constitutionally permissible. But I would not construe the Federal Constitution
to require that the States adhere to a standard other than that of reasonable care
where the plaintiff is an ordinary citizen.

My principal concern with the plurality's view, of course, is that voiced by my

Brother MARSHALL. However, even if this objection were not tenable, unlike the
plurality, I do think there is a difference, relevant to the interests here involved,
between the public and the private plaintiff, as our cases have defined these
categories, and that maintaining a constitutional distinction between them is at
least as likely to protect true First Amendment concerns as one that eradicates
such a line and substitutes for it a distinction between matters we think are of
true social significance and those we think are not.[p70]

To begin, it does no violence, in my judgment, to the value of freedom of speech

and press to impose a duty of reasonable care upon those who would exercise
these freedoms. I do not think it can be gainsaid that the States have a
substantial interest in encouraging speakers to carefully seek the truth before
they communicate, as well as in compensating persons actually harmed by false
descriptions of their personal behavior. Additionally, the burden of acting
reasonably in taking action that may produce adverse consequences for others is
one generally placed upon all in our society. Thus, history itself belies the
argument that a speaker must somehow be freed of the ordinary constraints of
acting with reasonable care in order to contribute to the public good while, for
example, doctors, accountants, and architects have constantly performed within
such bounds.

This does not mean that I do not agree with the rule of New York Times,
supra, but only that I deem it inapplicable here. That rule was not, I think, born
solely of a desire to free speech that would otherwise have been stifled by overly
restrictive rules, but also rested upon a determination that the countervailing
state interests, described above, were not fully applicable where the subject of
the falsehood was a public official or a public figure. For me, it does seem quite
clear that the public person has a greater likelihood of securing access to
channels of communication sufficient to rebut falsehoods concerning him than do
private individuals in this country who do not toil in the public spotlight. Similarly,
our willingness to assume that public personalities are more impervious to
criticism, and may be held to have run the risk of publicly circulated falsehoods
concerning them, does not rest solely upon an empirical assertion of fact, but also
upon a belief that, in our political system, the individual speaker is entitled to act
upon such an assumption if our institutions are to be held[p71] up, as they should
be, to constant scrutiny. And, at least as to the "public official," it seems to be
universally the case that he is entitled to an absolute immunity for what he may
utter in response to the charges of others. Where such factors are present, the
need to provide monetary compensation for defamation appears a good deal
more attenuated. Finally, in light of the plurality opinion's somewhat extravagant
delineation of the public interest involved in the dissemination of information
about nonpublic persons, it bears emphasizing that a primary rationale for
extending the New York Timesrule to public figures was the desire to reflect, in
the constitutional balance, the fact that, "in this country, the distinctions between
governmental and private sectors are blurred," Curtis Publishing Co., supra, at
163 (opinion of Warren, C.J.), and to treat constitutional values as specially
implicated where important, albeit nonofficial, policy and behavior were the
subjects of discussion. At the very least, this tends to diminish the force of any
contention that libelous depictions of nonpublic persons are often likely to involve
matters of abiding public significance.

I cannot agree that the First Amendment gives special protection to the press
from "[t]he very possibility of having to engage in litigation,"ante at 52 (opinion
of BRENNAN, J.). Were this assertion tenable, I do not see why the States could
ever enforce their libel laws. Cf. my Brother BLACK's opinion, ante at 57. Further,
it would certainly cast very grave doubts upon the constitutionality of so-called
"right-of-reply statutes" advocated by the plurality, ante at 47 n. 15, and
ultimately treat the application of any general law to a publisher or broadcaster
as an important First Amendment issue. The notion that such an interest, in the
context of a purely private libel, is a significant independent constitutional value is
an unfortunate consequence of the plurality's[p72] single-minded devotion to the
task of preventing self-censorship, regardless of the purposes for which such
restraint is induced or the evils is exercise tends to avoid.
It is, then, my judgment that the reasonable care standard adequately serves
those First Amendment values that must inform the definition of actionable libel,
and that those special considerations that made even this standard an
insufficiently precise technique when applied to plaintiffs who are "public officials"
or "public figures" do not obtain where the litigant is a purely private individual.

III

There remains the problem of punitive damages.[n3] No doubt my Brother

MARSHALL is correct in asserting that the specter of being forced to pay out
substantial punitive damage awards is likely to induce self-censorship. This would
probably also be the case where the harm actually caused is likely to be great.
But, as I indicated above, this fact, in itself, would not justify construing the First
Amendment to impose an arbitrary limitation on the amount of actual damages
recoverable. Thus, as my Brother MARSHALL would apparently agree -- since he,
too, proposes no limitation on actual damages -- one cannot jump from the
proposition that fear of substantial punitive damage awards may be an important
factor in[p73] inducing self-censorship directly to the result that punitive damages
cannot be assessed in all private libel cases. A more particularized inquiry into the
nature of the competing interests involved is necessary in order to ascertain
whether awarding punitive damages must inevitably, in private libel cases, serve
only interests that are incompatible with the First Amendment.

At a minimum, even in the purely private libel area, I think the First Amendment
should be construed to limit the imposition of punitive damages to those
situations where actual malice is proved. This is the typical standard employed in
assessing anyone's liability for punitive damages where the underlying aim of the
law is to compensate for harm actually caused, see, e.g., 3 L. Frumer et al.,
Personal Injury § 2.02 (1965); H. Oleck, Damages to Persons and Property § 30
(1955), and no conceivable state interest could justify imposing a harsher
standard on the exercise of those freedoms that are given explicit protection by
the First Amendment.

The question then arises whether further limitations on this general state power
must be imposed in order to serve the particularized goals of the First
Amendment. The most compelling rationale for providing punitive damages where
actual malice is shown is that such damages assure that deterrent force is added
to the jury's verdict. If the speaker's conduct was quite likely to produce
substantial harm, but fortuitously did not, simple assessment of actual damages
will not fully reflect the social interest in deterring that conduct generally. Further,
even if the harm done was great, the defendant may have unusually substantial
resources that make the award of actual damages a trivial inconvenience of no
actual deterrent value. And even where neither of these factors obtains, the State
always retains an interest in punishing more severely conduct that, although it
causes the same effect, is more morally blameworthy. For example,
consider[p74] the distinction between manslaughter and first-degree murder.

I find it impossible to say, at least without further judicial experience in this area,
that the First Amendment interest in avoiding self-censorship will always
outweigh the state interest in vindicating these policies. It seems that a
legislative choice is permissible which, for example, seeks to induce, through a
reasonable monetary assessment, repression of false material, published with
actual malice, that was demonstrably harmful and reasonably thought capable of
causing substantial harm, but, in fact, was not so fully injurious to the individual
attacked. Similarly, the State surely has a legitimate interest in seeking to assure
that its system of compensating victims of negligent behavior also operates upon
all as an inducement to avoidance of such conduct. And these are burdens that
are placed on all members of society, thus permitting the press to escape them
only if its interest is somehow different in this regard.

However, from the standpoint of the individual plaintiff, such damage awards are
windfalls. They are, in essence, private fines levied for purposes that may be
wholly unrelated to the circumstances of the actual litigant. That fact alone is not,
I think, enough to condemn them. The State may, as it often does, use the
vehicle of a private lawsuit to serve broader public purposes. It is noteworthy that
my Brother MARSHALL does not rest his objection to punitive damages upon
these grounds. He fears, instead, the self-censorship that may flow from the
unbridled discretion of juries to set the amount of such damages. I agree that,
where these amounts bear no relationship to the actual harm caused, they then
serve essentially as springboards to jury assessment, without reference to the
primary legitimating compensatory function of the system, of an infinitely wide
range of penalties wholly unpredictable in amount at the time of the
publication,[p75] and that this must be a substantial factor in inducing self-
censorship. Further, I find it difficult to fathom why it may be necessary, in order
to achieve its justifiable deterrence goals, for the States to permit punitive
damages that bear no discernible relationship to the actual harm caused by the
publication at issue. A rational determination of the injury a publication might
potentially have inflicted should typically proceed from the harm done in fact. And
where the compensatory scheme seeks to achieve deterrence as a subsidiary
byproduct, the desired deterrence, if not precisely measured by actual damages,
should be informed by that touchstone if deterrence of falsehood is not to replace
compensation for harm as the paramount goal. Finally, while our legal system
does often mete out harsher punishment for more culpable acts, it typically
begins with a gradation of offenses defined in terms of effects. Compare, for
example, larceny with murder. It is not surprising, then, that most States
apparently require that punitive damages in most private civil actions bear some
reasonable relation to the actual damages awarded, Oleck, at § 275,
Pennsylvania included, Weider v. Hoffman, 238 F.Supp. 437, 444-447 (MD
Pa.1965).

However, where the amount of punitive damages awarded bears a reasonable

and purposeful relationship to the actual harm done, I cannot agree that the
Constitution must be read to prohibit such an award. Indeed, as I understand it,
my Brother MARSHALL's objection to my position[n4] is not that the interest in
freedom of speech dictates eliminating such judgments, but that this result[p76] is
compelled by the need to avoid involving courts in an "ad hocbalancing" of "the
content of the speech and the surrounding circumstances," post at 86, 85, much
like that undertaken today in Part VI of the plurality opinion, the same technique
criticized in my dissent in Time, Inc. v. Pape, supra. I find this argument
unpersuasive. First, I do not see why my proposed rule would necessarily require
frequent judicial reweighing of the facts underlying each jury verdict. A carefully
and properly instructed jury should ordinarily be able to arrive at damage awards
that are self-validating. It is others, not I, who have placed upon the federal
courts the general duty of reweighing jury verdicts regarding the degree of fault
demonstrated in libel actions. Further, to the extent that supervision of jury
verdicts would be required it would entail a different process from that
undertaken where judges redetermine the degree of fault. The defendant's
resources, the actual harm suffered by the plaintiff, and the publication's
potential for actual harm are all susceptible of more or less objective
measurement. And the overriding principle that deterrence is not to be made a
substitute for compensation should serve as a useful mechanism for adjusting the
equation. Finally, even if some marginal "ad hocbalancing" becomes necessary, I
should think it the duty of this Court at least to attempt to implement such a
process before preempting, for itself, all state power in this regard.[n5][p77]
In sum, given the fact that it seems to reflect the majority rule that most of our
jurisprudence proceeds upon the premise that legislative purposes can be
achieved by fitting the punishment to the crime, and since we deal here with a
precise constitutional interest that may legitimately require the States to resort to
more discriminating regulation within a more circumscribed area of permissible
concern, I would hold unconstitutional, in a private libel case, jury authority to
award punitive damages which is unconfined by the requirement that these
awards bear a reasonable and purposeful relationship to the actual harm done.
Conversely, where the jury authority has been exercised within such constraints,
and the plaintiff has proved that the speaker acted out of express malice, given
the present state of judicial experience, I think it would be an unwarranted
intrusion into the legitimate legislative processes of the States, and an
impermissibly broad construction of the First Amendment, to nullify that state
action.

Because the Court of Appeals adjudicated this case upon principles wholly unlike
those suggested here, I[p78] would vacate the judgment below and remand the
case for further proceedings consistent with the views expressed herein.

1.
Of course, for me, this case presents a Fourteenth, not a purely First,
Amendment issue, for the question is one of the constitutionality of the applicable
Pennsylvania libel laws. However, I have found it convenient, in the course of this
opinion, occasionally to speak directly of the First Amendment as a shorthand
phrase for identifying those constitutional values of freedom of expression
guaranteed to individuals by the Due Process Clause of the Fourteenth
Amendment.

2.
I would expressly reserve, for a case properly presenting it, the issue whether
the New York Times rule should have any effect on "privacy" litigation. The
problem is briefly touched upon in Time, Inc. v. Hill, 385 U.S. 374, 404-405 (1967)
(HARLAN, J., concurring and dissenting).
 3.
The conclusions I reach in Part III of this opinion are somewhat different from
those I embraced four Terms ago in Curtis Publishing Co., supra, at 159-161.
Where matters are in flux, however, it is more important to re-think past
conclusions than to adhere to them without question, and the problem under
consideration remains in a state of evolution, as is attested to by all the opinions
filed today. Reflection has convinced me that my earlier opinion painted with
somewhat too broad a brush, and that a more precise balancing of the conflicting
interests involved is called for in this delicate area.

4.
Of course, I do not envision that, consistently with my views, the States could
only exact some predetermined multiple of the actual damages found. I should
think a jury could simply be instructed, along the lines set out in my opinion, on
the legitimate uses of the punitive damage award and the necessity for relating
any such judgment to the harm actually done.

5.
The plurality opinion States that the "real thrust" of my position is that it "will not
‘constitutionalize' the factfinding process." Ante at 53. In fact, I have attempted
to demonstrate throughout this opinion that I believe the position of my Brothers
BRENNAN, BLACK, and MARSHALL all, in varying degrees, overstate the extent to
which libel law is incompatible with the constitutional guarantee of freedom of
expression, and have pointed out that I think my view have merit "even if [the
objection noted in my Brother MARSHALL's opinion] were not tenable." Supra at
69. Moreover, the assertion that an inquiry into whether actual damages were
suffered "will involve judges even more deeply in factfinding," ante at 53, than
ascertaining whether "the defendant, in fact, entertained serious doubts as to the
truth of his publication," ante at 56, or whether the publication involved "an event
of public or general concern," ante at 52, seems to me to carry its own refutation.
The former focuses on measurable, objective fact; the latter upon subjective,
personal belief. Finally, I cannot see why juries may not typically be entrusted
responsibly to determine whether a publisher was negligent, a function they
perform in judging the harmful conduct of most other members of society, or why
it should be materially more difficult for judges to oversee such decisions where a
speaker, rather than any other actor, is a defendant.

TOP

Dissent

MARSHALL, J., Dissenting Opinion

MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins, dissenting.

Here, unlike the other cases involving the New York Times[n1] doctrine, we are
dealing with an individual who held no public office, who had not taken part in
any public controversy, and who lived an obscure private life.[n2] George
Rosenbloom, before the events and reports of the events involved here, was just
one of the millions of Americans who live their lives in obscurity.

The protection of the reputation of such anonymous persons

from unjustified invasion and wrongful hurt reflects no more than our basic
concept of the essential dignity and worth of every human being -- a concept at
the root of any decent system of ordered liberty.

Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (STEWART, J., concurring). But the
concept of a citizenry informed by a free and unfettered press is also basic to our
system of ordered liberty. Here, these two essential and fundamental values
conflict.

The plurality has attempted to resolve the conflict by creating a conditional

constitutional privilege for defamation published in connection with an event that
is found to be of "public or general concern." The condition for the privilege is
that the defamation must not be published "with knowledge that it was false or
with reckless[p79] disregard of whether it was false or not." I believe that this
approach offers inadequate protection for both of the basic values that are at
stake.

In order for particular defamation to come within the privilege, there must be a
determination that the event was of legitimate public interest. That determination
will have to be made by courts generally, and, in the last analysis, by this Court
in particular. Courts, including this one, are not anointed with any extraordinary
prescience. But, assuming that, under the rule announced by MR. JUSTICE
BRENNAN for the plurality, courts are not simply to take a poll to determine
whether a substantial portion of the population is interested or concerned in a
subject, courts will be required to somehow pass on the legitimacy of interest in a
particular event or subject; what information is relevant to self-government. See
Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). The
danger such a doctrine portends for freedom of the press seems apparent.

The plurality's doctrine also threatens society's interest in protecting private

individuals from being thrust into the public eye by the distorting light of
defamation. This danger exists since all human events are arguably within the
area of "public or general concern." My Brother BRENNAN does not try to provide
guidelines or standards by which courts are to decide the scope of public concern.
He does, however, indicate that areas exist that are not the proper focus of public
concern, and cites Griswold v. Connecticut, 381 U.S. 479 (1965). But it is apparent
that, in an era of a dramatic threat of overpopulation and one in which previously
accepted standards of conduct are widely heralded as outdated, even the intimate
and personal concerns with which the Court dealt in that case cannot be said to
be outside the area of "public or general concern."[p80]

The threats and inadequacies of using the plurality's conditional privilege to

resolve the conflict between the two basic values involved here have bee
illustrated by the experience courts have had in trying to deal with the right of
privacy. See Cohen, A New Niche for the Fault Principle: A Forthcoming
Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371, 379-381
(1970); Kalven, Privacy in Tort Law -- Were Warren and Brandeis Wrong?, 31
Law & Contemp.Prob. 326, 336 (1966). The authors of the most famous of all law
review articles recommended that no protection be given to privacy interests
when the publication dealt with a "matter which is of public or general interest."
Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193, 214 (1890). Yet
cases dealing with this caveat raise serious questions whether it has substantially
destroyed the right of privacy as Warren and Brandeis envisioned it.[n3] For
example, the publication of a picture of the body of plaintiff's daughter
immediately after her death in an automobile accident was held to be
protected. Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286 (1951).
And the publication of the details of the somewhat peculiar behavior of a former
child prodigy, who had a passion for obscurity, was found to involve a matter of
public concern. Sidis v. F-R Pub. Corp., 113 F.2d 806 (CA2 1940).

In New York Times, the Court chose to balance the competing interests by
seeming to announce a generally applicable rule. Here it is apparent that the
general rule announced cannot have general applicability. The plurality's
conditional privilege approach, when coupled[p81] with constitutionalizing of the
factfinding process,[n4] see Part VI of MR. JUSTICE BRENNAN's opinion, results in
the adoption of an ad hoc balancing of the two interests-involved. The Court is
required to weigh the nuances of each particular circumstance on its scale of
values regarding the relative importance of society's interest in protecting
individuals from defamation against the importance of a free press. This scale
may arguably be a more finely tuned instrument in a particular case. But
whatever precision the ad hoc method supplies is achieved at a substantial cost in
predictability and certainty. Moreover, such an approach will require this Court to
engage in a constant and continuing supervision of defamation litigation
throughout the country. See Time, Inc. v. Pape, 401 U.S. 279, 293 (1971) (HARLAN,
J., dissenting); Curtis Publishing Co. v. Butts, 388 U.S. 130, 171 (1967) (opinion of
BLACK, J.).

Undoubtedly, ad hoc balancing may be appropriate in some circumstances that

involve First Amendment problems. See, e.g., Bates v. Little Rock, 361 U.S.
516 (1960); Tinker v. Des Moines Independent Community School Dist., 393 U.S.
503 (1969). But in view of the shortcomings of my Brother BRENNAN's test,
defamation of a private individual by the mass media is not one of the occasions
for unfetteredad hoc balancing. A generally applicable resolution is available that
promises to provide an adequate balance between the interest in protecting
individuals from defamation and the equally basic interest in protecting freedom
of the press.

II

As the plurality recognizes here and as was recognized as the basic premise of
the New York Times principle, the threat that defamation law presents for the
values[p82] encompassed in the concept of freedom of the press is that of self-
censorship.[n5] Our notions of liberty require a free and vigorous press that
presents what it believes to be information of interest or importance; not
timorous, afraid of an error that leaves it open to liability for hundreds of
thousands of dollars. The size of the potential judgment that may be rendered
against the press must be the most significant factor in producing self-censorship
-- a judgment like the one rendered against Metromedia would be fatal to many
smaller publishers.[n6]

The judgments that may be entered in defamation cases are unlike those that
may be entered in most litigation, since the bulk of the award is given to punish
the defendant or to compensate for presumed damages. Here, the jury awarded
Mr. Rosenbloom $725,00 in punitive damages.[n7] This huge sum was given not to
compensate him for any injury, but to punish Metromedia. The concept of
punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils.
205, 95 Eng.Rep. 768 (K.B. 1763) -- one of the general warrant cases. There,
Lord Camden found that the power to award such damages was inherent in the
jury's exercise of uncontrolled discretion in the awarding of damages. See 1 T.
Sedgwick, Damages §§ 347-350 (9th ed.1912). Today these damages are
rationalized as a way to punish the wrongdoer, and to admonish others not to
err. See Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1172 (1931).
Thus, they serve the same function as criminal penalties, and are, in effect,
private fines. Unlike criminal penalties, however, punitive damages are not
awarded within discernible limits, but can be awarded[p83] in almost any amount.
Since there is not even an attempt to offset any palpable loss, and since these
damages are the direct product of the ancient theory of unlimited jury discretion,
the only limit placed on the jury in awarding punitive damages is that the
damages not be "excessive," and, in some jurisdictions, that they bear some
relationship to the amount of compensatory damages awarded.[n8] See H. Oleck,
Damages to Persons and Property § 275, pp. 557-560 (1955). The manner in
which unlimited discretion may be exercised is plainly unpredictable. And fear of
the extensive awards that may be given under the doctrine must necessarily
produce the impingement on freedom of the press recognized in New York Times.

In addition to the huge awards that may be given under the label of punitive or
exemplary damages, other doctrines in the law of defamation allow substantial
damages without even an offer of evidence that there was actually injury. See
Montgomery v. Dennison,363 Pa. 255, 69 A.2d 520 (1949); Restatement of Torts
§ 621 (1938). These doctrines create a legal presumption that substantial injuries
"normally flow" from defamation. There is no requirement that there be even an
offer of proof that there was, in fact, financial loss, physical or emotional
suffering, or that the plaintiff's standing in the community was diminished. The
effect is to give the jury essentially unlimited discretion, and thus to give it much
the same power it exercises under the labels of punitive or exemplary damages.
The impingement upon free speech is the same no matter what label is
attached.[p84]

The unlimited discretion exercised by juries in awarding punitive and presumed

damages compounds the problem of self-censorship that necessarily results from
the awarding of huge judgments. This discretion allows juries to penalize heavily
the unorthodox and the unpopular, and exact little from others. Such free-
wheeling discretion presents obvious and basic threats to society's interest in
freedom of the press. And the utility of the discretion in fostering society's
interest in protecting individuals from defamation is, at best, vague and
uncertain. These awards are not to compensate victims; they are only windfalls.
Certainly, the large judgments that can be awarded admonish the particular
defendant affected, as well as other potential transgressors, not to publish
defamation. The degree of admonition -- the amount of the judgment in relation
to the defamer's means -- is not, however, tied to any concept of what is
necessary to deter future conduct, nor is there even any way to determine that
the jury has considered the culpability of the conduct involved in the particular
case. Thus, the essence of the discretion is unpredictability and uncertainty.

The threats to society's interest in freedom of the press that are involved in
punitive and presumed damages can largely be eliminated by restricting the
award of damages to proved, actual injuries. The jury's wide-ranging discretion
will largely be eliminated, since the award will be based on essentially objective,
discernible factors. And the self-censorship that results from the uncertainty
created by the discretion as well as the self-censorship resulting from the fear of
large judgments themselves would be reduced. At the same time, society's
interest in protecting individuals from defamation will still be fostered. The victims
of the defamation will be compensated for their real injuries. They will not be,
however, assuaged far beyond their wounds. And, there[p85] will be a substantial,
although imprecise and imperfect, admonition to avoid future defamation by
imposing the requirement that there be compensation for actual damages.

My Brother HARLAN argues that it is unnecessary to go so far. Although he

recognizes the dangers involved in failing "to confine the amount of jury verdicts .
. . within any ascertainable limits," MR. JUSTICE HARLAN suggests that, on a
finding of actual malice, punitive damages may be awarded if they "bear a
reasonable and purposeful relationship to the actual harm done." My Brother
HARLAN envisions jurors being instructed[n9] to consider the deterrent function of
punitive damages and to try to gear the punitive damages awarded in some
undetermined way to actual injury. Apparently, the jury under the supervision of
the court would weigh the content of the speech and the surrounding
circumstances -- inter alia, the position of the plaintiff, the wealth of the
defendant, and the nature of the instrument of publication -- on the scale of their
values and determine what amount is necessary in light of the various interests
involved. Since there would be no objective standard by which to measure the
jury's decision, there would be no predetermined limit of jury discretion, and all of
the threats to freedom of the press involved in such discretion would remain. The
chant of some new incantation will, of course, provide clear authority for a court
to substitute its values for the jury's and remake the decision. If this is what my
Brother[p86] HARLAN envisions, he is merely moving the ad hoc balancing from
the question of fault to the question of damages.

I believe that the appropriate resolution of the clash of societal values here is to
restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory
Power, 69 Col.L.Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded
for more than direct pecuniary loss, but they must be related to some proved
harm. See Wright, Defamation, Privacy, and the Public's Right to Know: A
National Problem and a New Approach, 46 Tex.L.Rev. 630, 648 (1968). If awards
are so limited in cases involving private individuals -- persons first brought to
public attention by the defamation that is the subject of the lawsuit -- it will be
unnecessary to rely, as both the plurality and, to some extent, MR. JUSTICE
HARLAN, do, on somewhat elusive concepts[n10] of the degree of fault, and
unnecessary, for constitutional purposes, to engage in ad hoc balancing of the
competing interests involved.[n11] States would be essentially free to continue the
evolution of the common law of defamation, and to articulate whatever fault
standard best suits the State's need.[n12]

The only constitutional caveat should be that absolute or strict liability, like
uncontrolled damages and private[p87] fines, cannot be used.[n13] The effect of
imposing liability without fault is to place "the printed, written or spoken word in
the same class with the use of explosives or the keeping of dangerous animals."
W. Prosser, The Law of Torts § 108, p. 792 (3d ed.1964). Clearly, this is
inconsistent with the concepts of freedom of the press.

Thus, in this case, I would reverse the judgment of the Court of Appeals for the
Third Circuit and remand the case for a determination of whether Mr. Rosenbloom
can show any actual loss.
 1.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

2.
See, e.g., Associated Press v. Walker, 388 U.S. 130 (1967); Curtis Publishing Co. v.
Butts, 388 U.S. 130 (1967); Beckley Newspapers Corp. v. Hanks, 389 U.S.
81 (1967); Greenbelt Publishing Assn. v. Bresler, 398 U.S. 6 (1970); Rosenblatt v.
Baer, 383 U.S. 75 (1966).

3.
For cases in which the courts have protected the privacy of persons involved in
dramatic public events, see Mau v. Rio Grande Oil, Inc., 28 F.Supp. 845 (ND
Cal.1939), and Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931).

4.
See Time, Inc. v. Pape, 401 U.S. 279 (1971).

5.
New York Times Co. v. Sullivan, 376 U.S. at 279.

6.
The jury awarded Mr. Rosenbloom $25,000 in general damages and $725,000 in
punitive damages. The District Court reduced the punitive damages to $250,000
on remittitur.
 7.
See n.6,supra.

8.
Most jurisdictions in this country recognize the concept of punitive or exemplary
damages. Four States -- Illinois, Massachusetts, Nebraska, and Washington --
apparently do not recognize the doctrine. In Louisiana and Indiana, the doctrine
has limited applicability. See H. Oleck, Damages to Persons and Property § 269,
p. 541 (1955).

9.
[A] jury instruction is not abracadabra. It is not a magical incantation, the
slightest deviation from which will break the spell. Only its poorer examples are
formalistic codes recited by a trial judge to please appellate masters. At its best,
it is simple, rugged communication from a trial judge to a jury of ordinary people,
entitled to be appraised in terms of its net effect.

Time, Inc. v. Hill, 385 U.S. 374, 418 (1967) (Fortas, J., dissenting).

10.
See n. 9, supra.

11.
Of course, reliance on limiting awards to compensation for actual loss will require
some review of the facts of particular cases. But that review will be limited to
essentially objectively determinable issues; the contents of the publication will
not have to be considered.
 12.
Leaving States free to impose liability when defamation is found to be the result
of negligent conduct should make it somewhat more likely that a private person
will have a meaningful forum in which to vindicate his reputation. If the standard
of care is higher, it would seem that publishers will be more likely to assert the
defense of truth than simply contend that they did not breach the standard.

13.
Strict liability for defamation was first clearly established in Jones v. E. Hulton &
Co., [1909] 2 K.B. 444, aff'd, [1910] A.C. 20. See Smith, Jones v. Hulton: Three
Conflicting Judicial Views As to a Question of Defamation, 60 U.Pa.L.Rev. 365 and
461 (1912). The standard has been applied in many jurisdictions in this
country. See, e.g., Upton v. Times-Democrat Publishing Co., 104 La. 141, 28 So.
970 (1900); Laudati v. Stea, 44 R.I. 303, 117 A. 422 (1922); Taylor v.
Hearst, 107 Cal. 262, 40 P. 392 (1895). See also Restatement of Torts § 582,
comment g(1938). Liability without fault has not been applied, however, in
Pennsylvania. See Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8
A.2d 302 (1939), Pa.Stat.Ann., Tit. 12, § 1583 (1953).

G.R. No. L-32066 August 6, 1979

MANUEL LAGUNZAD, petitioner,
vs.
MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents.
Diosdado P. Peralta for petitioner.
Manuel S. Tonogbanua for private respondent.

MELENCIO-HERRERA, J.:
Before us is a Petition for Review by certiorari of the Decision of the Court of Appeals in CA-G.R. No. 34703,
promulgated on January 13, 1970, affirming the Decision of the Court of First Instance of Negros Occidental, dated
June 30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs. Manuel Lagunzad," for a Sum of
Money and Attachment.
The present controversy stems from a "Licensing Agreement" entered into by and between petitioner Manuel M.
Lagunzad and private respondent Maria Soto Vda. de Gonzales on October 5, 1961, which contract petitioner claims
to be null and void for having been entered into by him under duress, intimidation and undue influence.
The antecedental facts follow: Sometime in August, 1961, petitioner Manuel Lagunzad, a newspaperman, began the
production of a movie entitled "The Moises Padilla Story" under the name of his own business outfit, the "MML
Productions." It was based mainly on the copyrighted but unpublished book of Atty. Ernesto Rodriguez, Jr., entitled
"The Long Dark Night in Negros" subtitled "The Moises Padilla Story," 1 the rights to which petitioner had purchased
from Atty. Rodriguez in the amount of P2,000.00. 2
The book narrates the events which culminated in the murder of Moises Padilla sometime between November 11 and
November 17, 1951. Padilla was then a mayoralty candidate of the Nacionalista Party (then the minority party) for the
Municipality of Magallon, Negros Occidental, during the November, 1951 elections. Governor Rafael Lacson, a
member of the Liberal Party then in power and his men were tried and convicted for that murder inPeople vs. Lacson,
et al. 3 In the book, Moises Padilla is portrayed as "a martyr in contemporary political history."
Although the emphasis of the movie was on the public life of Moises Padilla, there were portions which dealt with his
private and family life including the portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales, private
respondent herein, and of one "Auring" as his girl friend. 4
The movie was scheduled for a premiere showing on October 16, 1961, or at the very latest, before the November,
1961 elections.
On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly Amante, half-sister of Moises Padilla,
objecting to the filming of the movie and the "exploitation" of his life. Shown the early "rushes" of the picture, Mrs.
Amante and her sister, Mrs. Gavieres, objected to many portions thereof notwithstanding petitioner's explanation that
the movie had been supervised by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in Negros." On
October 5, 1961, Mrs. Amante, for and in behalf of her mother, private respondent, demanded in writing for certain
changes, corrections and deletions in the movie. 5 Petitioner contends that he acceded to the demands because he had
already invested heavily in the picture to the extent of mortgaging his properties, 6 in addition to the fact that he had to
meet the scheduled target date of the premiere showing.
On the same date, October 5, 1961, after some bargaining as to the amount to be paid, which was P50,000.00 at first,
then reduced to P20,000.00, 7 petitioner and private respondent, represented by her daughters and Atty. Ernesto
Rodriguez, at the law office of Jalandoni and Jamir, executed a "Licensing Agreement" reading as follows:
LICENSING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement, made and executed at the City of Manila, Philippines, this 5th day of October, 1961,
by and between:
MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the
business of producing motion pictures under the style of "MML Productions" with
residence at 76 Central Boulevard, Quezon City and with offices at 301 Cu Unjieng
Bldg., Escolta, Manila and hereinafter referred to as LICENSEE,
— and —
MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the
Municipality of Moises Padilla, Province of Negros Occidental, represented in this
Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and resident of
393F-Buencamino St., San Miguel, Manila; Maria Nelly G. Amazite, of legal age
and resident of 121 South 13, Quezon City; and Dolores G, Gavieres, of legal age,
and resident of 511 San Rafael Street, Quiapo, Manila, also duly authorized and
hereinafter referred to as LICENSOR,
WITNESSETH:
That, the LICENSEE is currently producing a motion picture entitled "The Moises Padilla Story"
(hereinafter referred to as the PICTURE, for short) based on certain episodes in the life of Moises
Padilla, now deceased:
That the LICENSOR is the legitimate mother and only surviving compulsory heir of Moises Padilla,
the latter not having married during his lifetime and having died without any descendants, legitimate
or illegitimate;
That, in the PICTURE and in all incidents thereof, such as scenarios, advertisements, etc., the
LICENSEE has, without the prior consent and authority of LICENSOR, exploited the life story of
Moises Padilla for pecuniary gain and other profit motives, and has, furthermore encroached upon the
privacy of Moises Padilla's immediate family, and has in fact, included in the PICTURE'S cast,
persons portraying some of MOISES PADILLA's kin, including LICENSOR herself;
That, for and in consideration of the foregoing premises and the other covenants and conditions
hereunder stated, the LICENSOR hereby grants authority and permission to LICENSEE to exploit,
use, and develop the life story of Moises Padilla for purposes of producing the PICTURE, and in
connection with matters incidental to said production, such as advertising and the like, as well as
authority and permission for the use of LICENSOR's name in the PICTURE and have herself
portrayed therein, the authority and permission hereby granted, to retroact to the date when
LICENSEE first committed any of the acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS FOLLOWS:
1. For and in consideration of the authority and permission hereby granted by LICENSOR to
LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope E. Adriano at the Pelaez and
Jalandoni Law Office, 6th Floor, Magsaysay Bldg., San Luis, Ermita, Manila, the following:
a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency,
payable without need of further demand, as follows: P5,000.00 on or before Oct. 10,
1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or before November
30, 1961. In default of the payment of any of these amounts as they fall due, the
others become immediately due and demandable.
b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM
(2-½ %) of all gross income or receipts derived by, and/or for and in behalf of,
LICENSEE as rentals and or percentage of box office receipts from exhibitors and
others for the right to exploit, use, distribute and/or exhibit the picture anywhere
here in the Philippines or abroad.
2) The LICENSEE agrees to keep complete, true and accurate books of accounts, contracts and
vouchers relating to the exploitation, distribution and exhibition of the PICTURE, the bookings
thereof and the rentals and gross receipts therefrom, and to give to LICENSOR and/or her accredited
representatives, full access at all reasonable times to all of the said books, accounts, records, vouchers
and all other papers.
3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate, showing in detail the
gross receipts accruing from the picture, which monthly statements shall be delivered to the
LICENSOR with reasonable promptness, and upon verification and approval of said statements by
LICENSOR, the LICENSEE shall pay the corresponding royalties due to the LICENSOR.
4) The authority and permission herein granted is subject to the condition that LICENSEE shall
change, delete, and/or correct such portions in the PICTURE as the LICENSOR may require, in
writing before final printing of the PICTURE, and shall, furthermore, not be understood as a consent
to anything in the picture that is, or tends to be, derogatory to the deceased MOISES PADILLA or to
LICENSOR.
5) The LICENSOR shall not in any way be liable on any claim from third persons as a result of, or
arising from, the manner by which the PICTURE is put together, nor on any claim arising from the
production, distribution and exhibition of the PICTURE, and in the event of any such claim being
asserted against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless thereon.
6) This agreement shall be binding upon the parties hereto, their representatives, administrators,
successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date and at the place first
above stated.
MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD
Licensor Licensee
By:
 (Sgd.) ERNESTO R. RODRIGUEZ, Jr.
(Sgd.) MARIA NELLY G. AMANTE
(Sgd.) DOLORES G. GAVIERES
Attorneys-in-fact
SIGNED IN THE PRESENCE OF:
LOPE E. ADRIANO ILLEGIBLE
ACKNOWLEDGMENT
Petitioner takes the position that he was pressured into signing the Agreement because of private respondent's demand,
through Mrs. Amante, for payment for the "exploitation" of the life story of Moises Padilla, otherwise, she would "call
a press conference declaring the whole picture as a fake, fraud and a hoax and would denounce the whole thing in the
press, radio, television and that they were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent the amount of P5,000.00 but contends that he did so not
pursuant to their Agreement but just to placate private respondent.9
On October 14, 1961, the filming of the movie was completed. On October 16, 1961, a premiere showing was held at
the Hollywood Theatre, Manila, with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie was shown
in different theaters all over the country.
Because petitioner refused to pay any additional amounts pursuant to the Agreement, on December 22, 1961, private
respondent instituted the present suit against him praying for judgment in her favor ordering petitioner 1) to pay her
the amount of P15,000.00, with legal interest from the filing of the Complaint; 2) to render an accounting of the
proceeds from the picture and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's fees equivalent
to 20% of the amounts claimed; and 4) to pay the costs.
Traversing the Complaint, petitioner contended in his Answer that the episodes in the life of Moises Padilla depicted
in the movie were matters of public knowledge and occurred at or about the same time that the deceased became and
was a public figure; that private respondent has no property right over those incidents; that the Licensing Agreement
was without valid cause or consideration and that he signed the same only because private respondent threatened him
with unfounded and harassing action which would have delayed production; and that he paid private respondent the
amount of P5,000.00 in October, 1961, only because of the coercion and threat employed upon him. By way of
counterclaim, petitioner demanded that the Licensing Agreement be declared null and void for being without any valid
cause; that private respondent be ordered to return to him the amount of P5,000.00; and that he be paid P50,000.00 by
way of moral damages, and P7,500.00 as attorney's fees.
Private respondent duly filed her Answer to Counterclaim alleging that the transaction between her and petitioner was
entered into freely and voluntarily.
On June 30, 1964, the trial Court rendered a Decision, and decreed in its dispositive portion:
WHEREFORE, judgment is hereby rendered ordering the defendant Manuel Lagunzad to pay the
plaintiff the sum of P15,000.00 with interest at the rate of 6% per annum from December 22, 1961 up
to its complete payment; to order the defendant to render an accounting of the gross income or
proceeds derived from the exhibition, use and/or rental of the motion picture of "The Moises Padilla
Story" and to pay the plaintiff 2- 1/2% of said gross income; to pay the plaintiff the amount
equivalent to 20% of the amount due the plaintiff under the first cause of action as attorney's fees;
and to pay the costs.
On appeal to the Court of Appeals, the latter Court affirmed the judgment. Reconsideration having been denied by the
Court, petitioner filed the instant Petition for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the Petition for lack of merit, but resolved subsequently to give it due
course after petitioner moved for reconsideration on the additional argument that the movie production was in exercise
of the constitutional right of freedom of expression, and that the Licensing cement is a form of restraint on the
freedom of speech and of the press.
In his Brief, petitioner assigns the following errors to the appellate Court:
 I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE
BECAUSE THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE AND
CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE FINDINGS OF
FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING AGREEMENT,
EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN ILLEGAL CAUSE OR
CONSIDERATION OF CONTRACT, PETITIONER HAVING PREVIOUSLY OBTAINED THE
AUTHORITY AND/OR PERMISSION PURPOSELY GRANTED TO HIM BY RESPONDENT
UNDER SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING HAD ANY
PROPERTY NIGHTS OVER THE INCIDENTS IN THE LIFE OF MOISES PADILLA WHO WAS
A PUBLIC FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT HAVING
BEEN PROCURED BY MEANS OF DURESS, INTIMIDATION AND UNDUE INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF RESPONDENT
AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE RIGHT OF PETITIONER TO
FILM THE PUBLIC LIFE OF A PUBLIC FIGURE, INFRINGED UPON THE CONSTITUTIONAL
RIGHT OF PETITIONER TO FREE SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had been ordered, respondent Court of Appeals did not have
jurisdiction over the case as the Decision of the lower Court was not yet final and appealable, is untenable. The
doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by petitioner, which held that whether or not the
action for accounting is the principal action or is merely incidental to another, the judgment requiring such accounting
cannot be final, has been abandoned in Miranda vs. Court of Appeals 12 which ruled:
For the guidance of bench and bar, the Court declares as abandoned the doctrine of Fuentebella vs.
Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and
appealable (without need of awaiting the accounting) and would become final and executory if not
appealed within the reglementary period.
In other words, where there is complete adjudication and determination of the rights and obligations of the parties, as
in the instant case, an order for accounting in that judgment does not affect its final character, said accounting being
merely incidental to the judgment.
Petitioner's contention that respondent Court failed to make complete findings of fact on all issues raised before it is
without basis. A careful study of the Decision reveals that respondent Court has substantially and sufficiently
complied with the injunction that a decision must state clearly and distinctly the facts and the law on which it is based.
The rule remains that the ultimate test as to the sufficiency of a Court's findings of fact is "whether they are
comprehensive enough and pertinent to the issues raised to provide a basis for decision." 13 The judgment sought to be
reviewed sufficiently complies with this requirement.
Neither do we agree with petitioner's submission that the Licensing Agreement is null and void for lack of, or for
having an illegal cause or consideration. While it is true that petitioner had purchased the rights to the book entitled
"The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs
to portray publicly episodes in said deceased's life and in that of his mother and the members of his family. As held
in Schuyler v. Curtis,14 "a privilege may be given the surviving relatives of a deceased person to protect his memory,
but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own
rights in the character and memory of the deceased."
Petitioner's averment that private respondent did not have any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto
a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to
a fictional or novelized representation of a person, no matter how public a figure he or she may be. 15In the case at bar,
while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he
included a little romance in the film because without it, it would be a drab story of torture and brutality. 16
We also find it difficult to sustain petitioner's posture that his consent to the Licensing Agreement was procured thru
duress, intimidation and undue influence exerted on him by private respondent and her daughters at a time when he
had exhausted his financial resources, the premiere showing of the picture was imminent, and "time was of the
essence." As held in Martinez vs. Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real duress
and the motive which is present when one gives his consent reluctantly. A contract is valid even though one of the
parties entered into it against his own wish and desires, or even against his better judgment. In legal effect, there is no
difference between a contract wherein one of the contracting parties exchanges one condition for another because he
looks for greater profit or gain by reason of such change, and an agreement wherein one of the contracting parties
agrees to accept the lesser of two disadvantages. In either case, he makes a choice free and untramelled and must
accordingly abide by it. The Licensing Agreement has the force of law between the contracting parties and since its
provisions are not contrary to law, morals, good customs, public order or public policy (Art. 1306, Civil Code),
petitioner Should comply with it in good faith.
Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement infringes on the constitutional
right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his
thoughts in film on the public life of Moises Padilla without prior restraint. The right of freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties." 18 It is not, however, without limitations. As
held in Gonzales vs. Commission on Elections, 27 SCRA 835, 858 (1969):
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that press
for recognition.
The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television
and the movies, is the "balancing-of-interests test." 19 The principle i requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of situation."20
In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of -freedom of
expression invoked by petitioner. Taking into account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of
expression are reached when expression touches upon matters of essentially private concern.
WHEREFORE, the Petition for Review is denied and the judgment appealed from hereby affirmed. Costs against
petitioner.
SO ORDERED.
Makasiar, Fernandez, Guerrero and De Castro, JJ., concur.
Teehankee, (Chairman), J, concur in the result.

A.M. No. 10-10-4-SC March 8, 2011

RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A STATEMENT BY
THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE
ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent law professors1 in response to the
Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to show cause why they should not
be disciplined as members of the Bar for violation of specific provisions of the Code of Professional Responsibility
enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an administrative matter, not a
special civil action for indirect contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion of
Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause Resolution.
Neither is this a disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect contempt
as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the
October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that with the
exception of one respondent whose compliance was adequate and another who manifested he was not a member of the
Philippine Bar, the submitted explanations, being mere denials and/or tangential to the issues at hand, are decidedly
unsatisfactory. The proffered defenses even more urgently behoove this Court to call the attention of respondent law
professors, who are members of the Bar, to the relationship of their duties as such under the Code of Professional
Responsibility to their civil rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal
processes.

RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.

CANON 10 - A lawyer owes candor, fairness and good faith to the court.

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the Court to be misled by any artifice.

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of paper, the
language or the argument of opposing counsel, or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by repeal or amendment, or
assert as a fact that which has not been proved.

Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat
the ends of justice.

CANON 11 — A lawyer shall observe and maintain the respect due to the courts and to judicial officers
and should insist on similar conduct by others.

RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.

CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which
tends to influence, or gives the appearance of influencing the court.

Established jurisprudence will undeniably support our view that when lawyers speak their minds, they must ever be
mindful of their sworn oath to observe ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a decision it has rendered, especially during
the pendency of a motion for such decision’s reconsideration. The accusation of plagiarism against a member of this
Court is not the real issue here but rather this plagiarism issue has been used to deflect everyone’s attention from the
actual concern of this Court to determine by respondents’ explanations whether or not respondent members of the Bar
have crossed the line of decency and acceptable professional conduct and speech and violated the Rules of Court
through improper intervention or interference as third parties to a pending case. Preliminarily, it should be stressed
that it was respondents themselves who called upon the Supreme Court to act on their Statement,2 which they
formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court’s proper disposition.
Considering the defenses of freedom of speech and academic freedom invoked by the respondents, it is worth
discussing here that the legal reasoning used in the past by this Court to rule that freedom of expression is not a
defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can
similarly be applied to respondents’ invocation of academic freedom. Indeed, it is precisely because respondents are
not merely lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that respondents’ own
non-observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of intentions,
cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it is apropos to revisit the factual antecedents of
this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya, et al. v.
Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the
"Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this Honorable Courts’ (sic) assertion that the
Executive’s foreign policy prerogatives are virtually unlimited; precisely, under the relevant jurisprudence and
constitutional provisions, such prerogatives are proscribed by international human rights and humanitarian
standards, including those provided for in the relevant international conventions of which the Philippines is a
party.4
II. This Honorable Court has confused diplomatic protection with the broader, if fundamental, responsibility
of states to protect the human rights of its citizens – especially where the rights asserted are subject of erga
omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado
Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for
the first time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision. Among other
arguments, Attys. Roque and Bagares asserted that:
I.

IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S

JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE
PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK
PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE
PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW
– AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS
FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES
EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.7

They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive plagiarism but of
(sic) also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed
Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were namely: (1)
Evan J. Criddle and Evan Fox-Decent’s article "A Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams’ book
Enforcing Erga Omnes Obligations in International Law;10 and (3) Mark Ellis’ article "Breaking the Silence: On Rape
as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010, journalists Aries C.
Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized parts of ruling on comfort women," on
the Newsbreak website.12 The same article appeared on the GMA News TV website also on July 19, 2010.13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted," appeared in the Manila Standard
Today.14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been
plagiarized. Atty. Roque quoted Prof. Criddle’s response to the post by Julian Ku regarding the news report15 on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle responded to Ku’s blog entry in this wise:
The newspaper’s16 [plagiarism] claims are based on a motion for reconsideration filed yesterday with the Philippine
Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four sentences and citations that are identical to
sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I
were unaware of the petitioners’ [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the
prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Court’s decision is available
here:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the charge of
plagiarism contained in the Supplemental Motion for Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark Ellis, wrote
the Court, to wit:
Your Honours:

I write concerning a most delicate issue that has come to my attention in the last few days.

Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of the
integrity of my work as an academic and as an advocate of human rights and humanitarian law, to take
exception to the possible unauthorized use of my law review article on rape as an international crime in
your esteemed Court’s Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No.
162230, Judgment of 28 April 2010).

My attention was called to the Judgment and the issue of possible plagiarism by the Philippine chapter of
the Southeast Asia Media Legal Defence Initiative (SEAMLDI),19 an affiliate of the London-based
Media Legal Defence Initiative (MLDI), where I sit as trustee.

In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of
the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have
misread the arguments I made in the article and employed them for cross purposes. This would be ironic
since the article was written precisely to argue for the appropriate legal remedy for victims of war
crimes, genocide, and crimes against humanity.

I believe a full copy of my article as published in the Case Western Reserve Journal of International Law
in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will take the
time to carefully study the arguments I made in the article.

I would appreciate receiving a response from your esteemed Court as to the issues raised by this letter.

With respect,

(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical
Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En
Banc Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del Castillo to the
Ethics Committee. The matter was subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of Justice Del
Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by the Faculty of the
University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme
Court" (the Statement), was posted in Newsbreak’s website22 and on Atty. Roque’s blog.23 A report regarding the
statement also appeared on various on-line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the
same date. The statement was likewise posted at the University of the Philippines College of Law’s bulletin board
allegedly on August 10, 201026 and at said college’s website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines College of
Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The
cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines

Through: Hon. Renato C. Corona

Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:

We attach for your information and proper disposition a statement signed by thirty[-]eight
(38)28members of the faculty of the UP College of Law. We hope that its points could be considered by
the Supreme Court en banc.

Respectfully,

(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law

(Emphases supplied.)

The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of the alleged
signatories but only stated the names of 37 UP Law professors with the notation (SGD.) appearing beside each name.
For convenient reference, the text of the UP Law faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered
abuse during a time of war. After they courageously came out with their very personal stories of abuse
and suffering as "comfort women", waited for almost two decades for any meaningful relief from their
own government as well as from the government of Japan, got their hopes up for a semblance of judicial
recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had
these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land.

It is within this frame that the Faculty of the University of the Philippines College of Law views the
charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in
Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the
individual scholars whose work have been appropriated without correct attribution, but also a serious
threat to the integrity and credibility of the Philippine Judicial System.

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as
one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of
someone else’s ideas and expressions, including all the effort and creativity that went into committing
such ideas and expressions into writing, and then making it appear that such ideas and expressions were
originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism
in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to
allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently,
this is a complete perversion and falsification of the ends of justice.

A comparison of the Vinuya decision and the original source material shows that the ponente merely
copied select portions of other legal writers’ works and interspersed them into the decision as if they
were his own, original work. Under the circumstances, however, because the Decision has been
promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus
the Court also bears the responsibility for the Decision. In the absence of any mention of the original
writers’ names and the publications from which they came, the thing speaks for itself.

So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the
Court.

It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the
‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original authors’
writings and the effort they put into finding and summarizing those primary sources are precisely the
subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact
aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate
intention to appropriate the original authors’ work of organizing and analyzing those primary sources.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and
scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more
demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence
and competence expected of all Magistrates of the Highest Court of the Land.

But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan
Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled "A
Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this article they argue that
the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have
attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its
aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary
conclusion. This exacerbates the intellectual dishonesty of copying works without attribution
bytransforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability and
responsibility for personal injury and damage suffered in a time of war, and the role of the injured
parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely
have such opportunities to make an international impact. That the petitioners were Filipino "comfort
women" who suffered from horrific abuse during the Second World War made it incumbent on the Court
of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court
delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking
justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized
materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added
insult to injury by failing to actually exercise its "power to urge and exhort the Executive Department to
take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and
nonchalance, belies a more alarming lack of concern for even the most basic values of decency and
respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal
profession before other Judiciaries and legal systems are truly at stake.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept
excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench
and Bar because these undermine the very foundation of its authority and power in a democratic society.
Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of
such clear and obvious plagiarism to pass without sanction as this would only further erode faith and
confidence in the judicial system. And in light of the significance of this decision to the quest for justice
not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of
sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the
petitioners on the basis of pilfered and misinterpreted texts.

The Court cannot regain its credibility and maintain its moral authority without ensuring that its own
conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes
ensuring that not only the content, but also the processes of preparing and writing its own decisions, are
credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually
cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is
an absolutely essential step toward the establishment of a higher standard of professional care and
practical scholarship in the Bench and Bar, which are critical to improving the system of administration
of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as
the Final Arbiter of all controversies: a position that requires competence and integrity completely above
any and all reproach, in accordance with the exacting demands of judicial and professional ethics.

With these considerations, and bearing in mind the solemn duties and trust reposed upon them as
teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine
College of Law that:

(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable,
unethical and in breach of the high standards of moral conduct and judicial and professional
competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme
Court and undermines the foundations of the Philippine judicial system by allowing implicitly
the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the
primordial function of the Supreme Court as the ultimate dispenser of justice to all those who
have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the
honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of
Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions
that the Court may consider appropriate;
 (5) The Supreme Court must take this opportunity to review the manner by which it conducts
research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of
similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the
highest quality of legal research and writing in pleadings, practice, and adjudication.

Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

(SGD.) MARVIC M.V.F. LEONEN

G.R. No. 135306 January 28, 2003

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS,
JR.,petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG, IBRAHIM
F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A.
JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue
writing it. —
Voltaire

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press — liberties
that belong as well, if not more, to those who question, who do not conform, who differ. For the ultimate good which
we all strive to achieve for ourselves and our posterity can better be reached by a free exchange of ideas, where the
best test of truth is the power of the thought to get itself accepted in the competition of the free market — not just the
ideas we desire, but including those thoughts we despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70) Muslim
religious organizations, and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial
Court of Manila a complaint for damages in their own behalf and as a class suit in behalf of the Muslim members
nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G.
BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article
reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito
sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these words
alluding to the pig as the God of the Muslims was not only published out of sheer ignorance but with intent to hurt the
feelings, cast insult and disparage the Muslims and Islam, as a religion in this country, in violation of law, public
policy, good morals and human relations; that on account of these libelous words Bulgar insulted not only the
Muslims in the Philippines but the entire Muslim world, especially every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article did
not mention respondents as the object of the article and therefore were not entitled to damages; and, that the article
was merely an expression of belief or opinion and was published without malice nor intention to cause damage,
prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish their cause of
action since the persons allegedly defamed by the article were not specifically identified —
It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with specificity.
The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs x x x. It
is thus apparent that the alleged libelous article refers to the larger collectivity of Muslims for which the
readers of the libel could not readily identify the personalities of the persons defamed. Hence, it is difficult for
an individual Muslim member to prove that the defamatory remarks apply to him. The evidence presented in
this case failed to convince this court that, indeed, the defamatory remarks really applied to the herein
plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it was "clear from the
disputed article that the defamation was directed to all adherents of the Islamic faith. It stated that pigs were sacred
and idolized as god by members of the Muslim religion. This libelous imputation undeniably applied to the plaintiff-
appellants who are Muslims sharing the same religious beliefs." It added that the suit for damages was a "class suit"
and that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim umbrella
organization gave it the requisite personality to sue and protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of the elements
of libel, (b) the right of respondents to institute the class suit, and, (c) the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation
through false and malicious statements.5 It is that which tends to injure reputation or to diminish the esteem, respect,
good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff.6 It is the
publication of anything which is injurious to the good name or reputation of another or tends to bring him into
disrepute.7 Defamation is an invasion of a relational interest since it involves the opinion which others in the
community may have, or tend to have, of the plaintiff.8
It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words
of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis
for an action for defamation in the absence of an allegation for special damages.9 The fact that the language is
offensive to the plaintiff does not make it actionable by itself.10
Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable
individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of
such class has a right of action11 without at all impairing the equally demanding right of free speech and expression,
as well as of the press, under the Bill of Rights.12 Thus, in Newsweek, Inc. v. Intermediate Appellate Court,13 we
dismissed a complaint for libel against Newsweek, Inc., on the ground that private respondents failed to state a cause
of action since they made no allegation in the complaint that anything contained in the article complained of
specifically referred to any of them. Private respondents, incorporated associations of sugarcane planters in Negros
Occidental claiming to have 8,500 members and several individual members, filed a class action suit for damages in
behalf of all sugarcane planters in Negros Occidental. The complaint filed in the Court of First Instance of Bacolod
City alleged that Newsweek, Inc., committed libel against them by the publication of the article "Island of Fear" in its
weekly newsmagazine allegedly depicting Negros Province as a place dominated by wealthy landowners and sugar
planters who not only exploited the impoverished and underpaid sugarcane workers but also brutalized and killed
them with impunity. Private respondents alleged that the article showed a deliberate and malicious use of falsehood,
slanted presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad light, expose
them to public ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. We ratiocinated —
x x x where the defamation is alleged to have been directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or
sufficiently specific so that each individual in the class or group can prove that the defamatory statement
specifically pointed to him, so that he can bring the action separately, if need be x x x x The case at bar is not
a class suit. It is not a case where one or more may sue for the benefit of all, or where the representation of
class interest affected by the judgment or decree is indispensable to make each member of the class an actual
party. We have here a case where each of the plaintiffs has a separate and distinct reputation in the
community. They do not have a common or general interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article. Since the
persons allegedly defamed could not be identifiable, private respondents have no individual causes of action; hence,
they cannot sue for a class allegedly disparaged. Private respondents must have a cause of action in common with the
class to which they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal, separate and distinct in the community. Each Muslim, as part
of the larger Muslim community in the Philippines of over five (5) million people, belongs to a different trade and
profession; each has a varying interest and a divergent political and religious view — some may be conservative,
others liberal. A Muslim may find the article dishonorable, even blasphemous; others may find it as an opportunity to
strengthen their faith and educate the non-believers and the "infidels." There is no injury to the reputation of the
individual Muslims who constitute this community that can give rise to an action for group libel. Each reputation is
personal in character to every person. Together, the Muslims do not have a single common reputation that will give
them a common or general interest in the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,14 the United States Court of Appeals held that one guiding
principle of group libel is that defamation of a large group does not give rise to a cause of action on the part of an
individual unless it can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a person had allegedly committed libel against all
persons of the Jewish religion. The Court held that there could be no libel against an extensive community in common
law. In an English case, where libel consisted of allegations of immorality in a Catholic nunnery, the Court considered
that if the libel were on the whole Roman Catholic Church generally, then the defendant must be absolved.16 With
regard to the largest sectors in society, including religious groups, it may be generally concluded that no criminal
action at the behest of the state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed by the airing
of a national television broadcast of a film depicting the public execution of a Saudi Arabian princess accused of
adultery, and alleging that such film was "insulting and defamatory" to the Islamic religion.17 The United States
District Court of the Northern District of California concluded that the plaintiffs' prayer for $20 Billion in damages
arising from "an international conspiracy to insult, ridicule, discredit and abuse followers of Islam throughout the
world, Arabs and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the plaintiffs had failed to
demonstrate an actionable claim for defamation. The California Court stressed that the aim of the law on defamation
was to protect individuals; a group may be sufficiently large that a statement concerning it could not defame
individual group members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"19 discusses the inappropriateness of
any action for tortious libel involving large groups, and provides a succinct illustration:
There are groupings which may be finite enough so that a description of the body is a description of the
members. Here the problem is merely one of evaluation. Is the description of the member implicit in the
description of the body, or is there a possibility that a description of the body may consist of a variety of
persons, those included within the charge, and those excluded from it?
A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the
lawyers were shysters. A charge that the lawyers in a local point in a great city, such as Times Square in New
York City, were shysters would obviously not include all of the lawyers who practiced in that district; but a
statement that all of the lawyers who practiced in a particular building in that district were shysters would be
a specific charge, so that any lawyer having an office within that building could sue.
If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in
particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff
does not establish any personal reference to himself.20 At present, modern societal groups are both numerous and
complex. The same principle follows with these groups: as the size of these groups increases, the chances for
members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two
(2) important public policies: first, where the group referred to is large, the courts presume that no reasonable reader
would take the statements as so literally applying to each individual member; and second, the limitation on liability
would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound
compromise between the conflicting fundamental interests involved in libel cases.21
In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were
particularly defamed. The size of the group renders the reference as indeterminate and generic as a similar attack on
Catholics, Protestants, Buddhists or Mormons would do. The word "Muslim" is descriptive of those who are believers
of Islam, a religion divided into varying sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others
based upon political and theological distinctions. "Muslim" is a name which describes only a general segment of the
Philippine population, comprising a heterogeneous body whose construction is not so well defined as to render it
impossible for any representative identification.
The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist, Episcopalian,
Presbyterian, Lutheran, and other groups the essence of which may lie in an inspired charlatan, whose temple may be
a corner house in the fringes of the countryside. As with the Christian religion, so it is with other religions that
represent the nation's culturally diverse people and minister to each one's spiritual needs. The Muslim population may
be divided into smaller groups with varying agenda, from the prayerful conservative to the passionately radical. These
divisions in the Muslim population may still be too large and ambiguous to provide a reasonable inference to any
personality who can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the course of the
deliberations in this case. We extensively reproduce hereunder his comprehensive and penetrating discussion on group
libel —
Defamation is made up of the twin torts of libel and slander — the one being, in general, written, while the
other in general is oral. In either form, defamation is an invasion of the interest in reputation and good name.
This is a "relational interest" since it involves the opinion others in the community may have, or tend to have
of the plaintiff.
The law of defamation protects the interest in reputation — the interest in acquiring, retaining and enjoying
one's reputation as good as one's character and conduct warrant. The mere fact that the plaintiff's feelings and
sensibilities have been offended is not enough to create a cause of action for defamation. Defamation requires
that something be communicated to a third person that may affect the opinion others may have of the plaintiff.
The unprivileged communication must be shown of a statement that would tend to hurt plaintiff's reputation,
to impair plaintiff's standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action is
upon the allegedly defamatory statement itself and its predictable effect upon third persons. A statement is
ordinarily considered defamatory if it "tend[s] to expose one to public hatred, shame, obloquy, contumely,
odium, contempt, ridicule, aversion, ostracism, degradation or disgracex x x." The Restatement of Torts
defines a defamatory statement as one that "tends to so harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or dealing with him."
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima
faciecase that the defendant (1) published a statement that was (2) defamatory (3) of and concerning the
plaintiff.
The rule in libel is that the action must be brought by the person against whom the defamatory charge has
been made. In the American jurisdiction, no action lies by a third person for damages suffered by reason of
defamation of another person, even though the plaintiff suffers some injury therefrom. For recovery in
defamation cases, it is necessary that the publication be "of and concerning the plaintiff." Even when a
publication may be clearly defamatory as to somebody, if the words have no personal application to the
plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no one's
reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that the
plaintiff is the person with reference to whom the statement was made. This principle is of vital importance in
cases where a group or class is defamed since, usually, the larger the collective, the more difficult it is for an
individual member to show that he was the person at whom the defamation was directed.
If the defamatory statements were directed at a small, restricted group of persons, they applied to any member
of the group, and an individual member could maintain an action for defamation. When the defamatory
language was used toward a small group or class, including every member, it has been held that the
defamatory language referred to each member so that each could maintain an action. This small group or class
 may be a jury, persons engaged in certain businesses, professions or employments, a restricted subdivision of
a particular class, a society, a football team, a family, small groups of union officials, a board of public
officers, or engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and there is
nothing that points, or by proper colloquium or innuendo can be made to apply, to a particular member of the
class or group, no member has a right of action for libel or slander. Where the defamatory matter had no
special, personal application and was so general that no individual damages could be presumed, and where
the class referred to was so numerous that great vexation and oppression might grow out of the multiplicity of
suits, no private action could be maintained. This rule has been applied to defamatory publications concerning
groups or classes of persons engaged in a particular business, profession or employment, directed at
associations or groups of association officials, and to those directed at miscellaneous groups or classes of
persons.
Distinguishing a small group — which if defamed entitles all its members to sue from a large group — which
if defamed entitles no one to sue — is not always so simple. Some authorities have noted that in cases
permitting recovery, the group generally has twenty five (25) or fewer members. However, there is usually no
articulated limit on size. Suits have been permitted by members of fairly large groups when some
distinguishing characteristic of the individual or group increases the likelihood that the statement could be
interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma University
football team was permitted to sue when a writer accused the entire team of taking amphetamines to "hop up"
its performance; the individual was a fullback, i.e., a significant position on the team and had played in all but
two of the team's games.
A prime consideration, therefore, is the public perception of the size of the group and whether a statement will
be interpreted to refer to every member. The more organized and cohesive a group, the easier it is to tar all its
members with the same brush and the more likely a court will permit a suit from an individual even if the
group includes more than twenty five (25) members. At some point, however, increasing size may be seen to
dilute the harm to individuals and any resulting injury will fall beneath the threshold for a viable lawsuit.
x x x x There are many other groupings of men than those that are contained within the foregoing group
classifications. There are all the religions of the world, there are all the political and ideological beliefs; there
are the many colors of the human race. Group defamation has been a fertile and dangerous weapon of attack
on various racial, religious and political minorities. Some states, therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the United States by making it a crime to circulate insidious
rumors against racial and religious groups. Thus far, any civil remedy for such broadside defamation has been
lacking.
There have been numerous attempts by individual members to seek redress in the courts for libel on these
groups, but very few have succeeded because it felt that the groups are too large and poorly defined to support
a finding that the plaintiff was singled out for personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by petitioners in the instant case did not specifically identify
nor refer to any particular individuals who were purportedly the subject of the alleged libelous publication.
Respondents can scarcely claim to having been singled out for social censure pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is an intentional tortious act causing mental
distress and not an action for libel. That opinion invokes Chaplinsky v. New Hampshire22 where the U.S. Supreme
Court held that words heaping extreme profanity, intended merely to incite hostility, hatred or violence, have no social
value and do not enjoy constitutional protection; and Beauharnais v. Illinois23 where it was also ruled that hate speech
which denigrates a group of persons identified by their religion, race or ethnic origin defames that group and the law
may validly prohibit such speech on the same ground as defamation of an individual.
We do not agree to the contrary view articulated in the immediately preceding paragraph. Primarily, an "emotional
distress" tort action is personal in nature, i.e., it is a civil action filed by an individual24 to assuage the injuries to his
emotional tranquility due to personal attacks on his character. It has no application in the instant case since no
particular individual was identified in the disputed article of Bulgar. Also, the purported damage caused by the article,
assuming there was any, falls under the principle of relational harm — which includes harm to social relationships in
the community in the form of defamation; as distinguished from the principle of reactive harm — which includes
injuries to individual emotional tranquility in the form of an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their
activities in propagating their faith in Metro Manila and in other non-Muslim communities in the country.25 It is thus
beyond cavil that the present case falls within the application of the relational harm principle of tort actions for
defamation, rather than the reactive harm principle on which the concept of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the
plaintiff must show that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b)
The conduct was extreme and outrageous; (c) There was a causal connection between the defendant's conduct and the
plaintiff's mental distress; and, (d) The plaintiff's mental distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.
The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the
plaintiff.27 Generally, conduct will be found to be actionable where the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as his or
her reaction.28
"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation,
embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and
chagrin.29 "Severe emotional distress," in some jurisdictions, refers to any type of severe and disabling emotional or
mental condition which may be generally recognized and diagnosed by professionals trained to do so, including
posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia.30 The plaintiff is required to show,
among other things, that he or she has suffered emotional distress so severe that no reasonable person could be
expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages.31
Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment,
or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other
trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and
required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are
definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as
insulting, or will have his feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages on intentional infliction of
emotional distress. A parody appeared in Hustler magazine featuring the American fundamentalist preacher and
evangelist Reverend Jerry Falwell depicting him in an inebriated state having an incestuous, sexual liaison with his
mother in an outhouse. Falwell sued Hustler and its publisher Larry Flynt for damages. The United States District
Court for the Western District of Virginia ruled that the parody was not libelous, because no reasonable reader would
have understood it as a factual assertion that Falwell engaged in the act described. The jury, however, awarded
$200,000 in damages on a separate count of "intentional infliction of emotional distress," a cause of action that did not
require a false statement of fact to be made. The United States Supreme Court in a unanimous decision overturned the
jury verdict of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of
emotional distress. It was argued that the material might be deemed outrageous and may have been intended to cause
severe emotional distress, but these circumstances were not sufficient to overcome the free speech rights guaranteed
under the First Amendment of the United States Constitution. Simply stated, an intentional tort causing emotional
distress must necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he was
anindividual particularly singled out or identified in the parody appearing on Hustler magazine. Also, the emotional
distress allegedly suffered by Reverend Falwell involved a reactive interest — an emotional response to the parody
which supposedly injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was the emotional
distress allegedly suffered by respondents so severe that no reasonable person could be expected to endure it. There is
no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner34 —
There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity,
annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are
not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to
 afford a remedy in the form of tort damages for all intended mental disturbance. Liability of course cannot be
extended to every trivial indignity x x x x The plaintiff must necessarily be expected and required to be
hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind x x x
The plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:35
There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still
be freedom to express an unflattering opinion, and some safety valve must be left through which irascible
tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would
"open up a wide vista of litigation in the field of bad manners," an area in which a "toughening of the mental hide"
was thought to be a more appropriate remedy.36 Perhaps of greater concern were the questions of causation, proof,
and the ability to accurately assess damages for emotional harm, each of which continues to concern courts today.37
In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First
Amendment doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse
a theory, known as the Two-Class Theory, that treated certain types of expression as taboo forms of speech, beneath
the dignity of the First Amendment. The most celebrated statement of this view was expressed inChaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are
no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Today, however, the theory is no longer viable; modern First Amendment principles have passed it by. American
courts no longer accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or
otherwise vulgar or offensive.38 Cohen v. California39 is illustrative: Paul Robert Cohen wore a jacket bearing the
words "Fuck the Draft" in a Los Angeles courthouse in April 1968, which caused his eventual arrest. Cohen was
convicted for violating a California statute prohibiting any person from "disturb[ing] the peace x x x by offensive
conduct." The U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar," but it
concluded that his speech was nonetheless protected by the right to free speech. It was neither considered an
"incitement" to illegal action nor "obscenity." It did not constitute insulting or "fighting" words for it had not been
directed at a person who was likely to retaliate or at someone who could not avoid the message. In other words, no
one was present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal insult,
nor was there any danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The conviction could
only be justified by California's desire to exercise the broad power in preserving the cleanliness of discourse in the
public sphere, which the U.S. Supreme Court refused to grant to the State, holding that no objective distinctions can
be made between vulgar and nonvulgar speech, and that the emotive elements of speech are just as essential in the
exercise of this right as the purely cognitive. As Mr. Justice Harlan so eloquently wrote: "[O]ne man's vulgarity is
another man's lyric x x x words are often chosen as much for their emotive as their cognitive force."40 With Cohen,
the U.S. Supreme Court finally laid the Constitutional foundation for judicial protection of provocative and potentially
offensive speech.
Similarly, libelous speech is no longer outside the First Amendment protection. Only one small piece of the Two-Class
Theory in Chaplinsky survives — U.S. courts continue to treat "obscene" speech as not within the protection of the
First Amendment at all. With respect to the "fighting words" doctrine, while it remains alive it was modified by the
current rigorous clear and present danger test.41 Thus, in Cohen the U.S. Supreme Court in applying the test held that
there was no showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke imminent
violence; and that protecting the sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's
speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky. Indeed,
whenBeauharnais was decided in 1952, the Two-Class Theory was still flourishing. While concededly the U.S. High
Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence substantially
undercut Beauharnais and seriously undermined what is left of its vitality as a precedent. Among the cases that dealt a
crushing impact on Beauharnais and rendered it almost certainly a dead letter case law are Brandenburg v.
Ohio,42 and, again, Cohen v. California.43 These decisions recognize a much narrower set of permissible grounds for
restricting speech than did Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism
Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism
as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to
teach or advocate the doctrines of criminal syndicalism. Appellant challenged the statute and was sustained by the
U.S. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce such action.45 Except in unusual
instances, Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that "Brandenburgmust
be understood as overruling Beauharnais and eliminating the possibility of treating group libel under the same First
Amendment standards as individual libel."46 It may well be considered as one of the lynchpins of the modern doctrine
of free speech, which seeks to give special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out
by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In
determining the question of fair and adequate representation of members of a class, the court must consider (a)
whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the
proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing
on the ability of the named party to speak for the rest of the class.47
The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully
protect the interests of all concerned. In the present controversy, Islamic Da'wah Council of the Philippines, Inc.,
seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well.
Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they
been able to demonstrate the identity of their interests with those they seek to represent. Unless it can be shown that
there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its
magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to
satisfactorily prove the existence of the factual basis for the damages and its causal connection with the acts
complained of,49 and so it must be, as moral damages although incapable of pecuniary estimation are designed not to
impose a penalty but to compensate for injury sustained and actual damages suffered.50 Exemplary damages, on the
other hand, may only be awarded if claimant is able to establish his right to moral, temperate, liquidated or
compensatory damages.51 Unfortunately, neither of the requirements to sustain an award for either of these damages
would appear to have been adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about another individual's religion is as
commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of
religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as
fairly informative comments. The greater danger in our society is the possibility that it may encourage the frequency
of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This would
unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious
agenda.
It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither
does it have the authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast
asunder, for the validity of religious beliefs or values are outside the sphere of the judiciary. Such matters are better
left for the religious authorities to address what is rightfully within their doctrine and realm of influence. Courts must
be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights
under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the First Amendment — even those
ideas that are universally condemned and run counter to constitutional principles."52 Under the right to free speech,
"there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on
the conscience of judges and juries but on the competition of other ideas."53 Denying certiorari and affirming the
appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of
expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 27 August 1998 is
REVERSED and SET ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit,
is REINSTATED and AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C .J ., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Corona and Callejo, Sr., JJ ., concur.
Mendoza, J ., in the result.
Vitug, J ., see concurring opinion.
Panganiban, J ., joins the dissenting opinion of Justice A.T. Carpio.
Carpio, J ., see dissenting opinion.
Austria-Martinez, J ., see dissenting opinion.
Carpio-Morales, J ., joins the dissenting opinion of Justice A.T. Carpio.
Azcuna, J ., joins the dissenting opinion of Justice Austria-Martinez.

Separate Opinions
VITUG, J ., concurring:
The innate right of a person to an unimpaired reputation and good name is no less a constitutional imperative than that
which protects his life, liberty or property. Thus, the law imposes upon him who attacks another's reputation, by
slanderous words or libelous publication, a liability to make compensation for the injury done and the damages
sustained.1
Private respondent Islamic Da'wah Council of the Philippines, Inc., a federation of more than 70 Muslim religious
organizations in the country, and the other named respondents all claim, with understandable indignation, that they
have been defamed by an item published by petitioners in Bulgar, a tabloid, circulated in the Metro Manila area. The
article reads:
"ALAM BA NINYO?
"Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?
"Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa
tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
Private respondents, for themselves and in behalf of all Muslims, filed the complaint before the trial court against
petitioners, alleging that the published article was defamatory and an insult to respondents. The trial court dismissed
the complaint. On appeal, the Court of Appeals reversed the decision of the lower court and ordered petitioners to pay
damages to private respondents.
Aggrieved, petitioners are now before the Court to assail the findings of the Court of Appeals on the existence of the
elements of libel, the right of respondents to institute the class suit, and the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
The present controversy stems from a civil action for damages and not from a criminal complaint. The Civil Code
recognizes the possibility of such a civil action either pursuant to Article 26, paragraph (4), to the effect that although
it may not constitute a criminal offense, "vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition," can give rise to a cause of action for
damages, or consonantly with Article 33 which provides that in case of defamation, a civil complaint for damages,
entirely separate and distinct from the criminal case, may be brought by the injured party. Both civil actions are based
on tort liability under common law and require the plaintiff to establish that he has suffered personal damage or injury
as a direct consequence of the defendant's wrongful conduct. In fine, it must be shown that the act complained of is
vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latter's dignity
and honor.
Defined in simple terms, vexation is an act of annoyance or irritation that causes distress or agitation.2 Early American
cases have refused all remedy for mental injury, such as one caused by vexation, because of the difficulty of proof or
of measurement of damages.3 In comparatively recent times, however, the infliction of mental distress as a basis for
an independent tort action has been recognized. It is said that "one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional
distress."4 Nevertheless, it has also been often held that petty insult or indignity lacks, from its very nature, any
convincing assurance that the asserted emotional or mental distress is genuine, or that if genuine it is
serious.5 Accordingly, it is generally declared that there can be no recovery for insults,6 indignities or threats7which
are considered to amount to nothing more than mere annoyances or hurt feelings.8 At all events, it would be essential
to prove that personal damage is directly suffered by the plaintiff on account of the wrongful act of the defendant.
A kindred concept, albeit of greater degree of perversity, defamation, broadly defined, is an attack on the reputation of
another, the unprivileged publication of false statements which naturally and proximately result in injury to
another.9 It is that which tends to diminish the esteem, respect, goodwill or confidence in which a person is held, or to
excite adverse, derogatory or unpleasant feelings or opinions against him.10 Defamation is an invasion of a "relational
interest" since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.11 The
Revised Penal Code, although not the primary governing law in this instance, provides an instructive definition of
libel as being a form of defamation expressed in writing, print, pictures, or signs,12 to wit: "A libel is a public and
malicious imputation of a crime, or vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead."13
While arguably, the article subject of the complaint could be characterized as vexatious or defamatory and as
imparting an erroneous interpretation of a Muslim practice that tends to ridicule the Islamic faith, it is, however,
impersonal on its face, its language not being directed at any particular person but to a large segment of society. In
order that defamatory words can be actionable in court, it is essential that they are personal to the party maligned, an
ascertained or ascertainable individual.14 It is only then that plaintiff's emotions and/or reputation can be said to have
been injured; thus, the plaintiff, to recover, must show that he or she is the person to whom the statements are
directed.15 Declarations made about a large class of people cannot be interpreted to advert to an identified or
identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no
member of such class has a right of action16 without at all impairing the equally demanding right of free speech and
expression, as well as of the press, under the bill of rights.17
If an article, for instance, states that "judges in the Philippines are corrupt," such a general condemnation cannot
reasonably be interpreted to be pointing to each judge or to a certain judge in the Philippines. Thus, no particular
magistrate can claim to have been disgraced or to have sustained an impaired reputation because of that article. If, on
the other hand, the article proclaims that "judges in Metro Manila are corrupt," such statement of derogatory conduct
now refers to a relatively narrow group that might yet warrant its looking into in an appropriate suit. And if the article
accuses the "Justices of the Supreme Court" of corruption, then there is a specific derogatory statement about a
definite number of no more than fifteen persons.
Jurisprudence would appear to suggest that in cases permitting recovery, the group generally has 25 or fewer
members.18 When statements concern groups with larger composition, the individual members of that group would be
hardput to show that the statements are "of and concerning them."19 Although no precise limits can be set as to the
size of a group or class that would be sufficiently small, increasing size, at some point, would be seen to dilute the
harm to individuals and any resulting injury would fall beneath the threshold for a viable lawsuit.20 This principle is
said to embrace two important public policies: 1) where the group referred to is large, the courts presume that no
reasonable reader would take the statements as so literally applying to each individual member; and 2) the limitation
on liability would satisfactorily safeguard freedom of speech and expression, as well as of press, effecting a sound
compromise between the conflicting fundamental interests involved in libel cases.21
Thus, no recovery was allowed where the remarks complained of had been made about correspondence schools, one
school suing;22 or where there was imputation of criminality to a union, one member suing;23 or where an attack was
made on Catholic clergymen, one clergyman suing.24
In Newsweek, Inc., vs. Intermediate Appellate Court,25 this Court dismissed a class suit for scurrilous remarks filed by
four incorporated associations of sugar planters in Negros Occidental in behalf of all sugar planters in that province,
against Newsweek, Inc., on the ground, among other things, that the plaintiffs were not sufficiently ascribed to in the
article published by the defendant. And so also it was in an older case,26 where the Court ratiocinated that an article
directed at a class or group of persons in broad language would not be actionable by individuals composing the class
or group unless the statements were sweeping but, even then, it would be highly probable, said the Court, that no
action could lie "where the body is composed of so large a number of persons that common sense would tell those to
whom the publication was made that there was room for persons connected with the body to pursue an upright and
law abiding course and that it would be unreasonable and absurd to condemn all because of the actions of a part."
In the present case, the subject article relates to the entire Muslim population and not just to the Islamic Da'wah
Council of the Philippines or to any of the individual respondents. There is no direct reference or allusion to the
federation or any of its members, or to any of the individual complainants. Respondents scarcely can claim having
been singled out for social censure pointedly resulting in damages. Islamic Da'wah Council of the Philippines, Inc.,
itself, much like any other artificial being or juridical entity, having existence only in legal contemplation, would be
devoid of any such real feeling or emotion as ordinarily these terms are understood,27 and it cannot have that kind of
reputation that an individual has that could allow it to sue for damages based on impinged personal reputation.28
WHEREFORE, I vote to GRANT the petition and to SET ASIDE the assailed decision of the Court of Appeals,
REINSTATING thereby the order of dismissal rendered by the Regional Trial Court.

Dissenting Opinion
CARPIO, J ., dissenting:
I dissent not because the newspaper article in question is libelous, but because it constitutes an intentional tortious act
causing mental distress to those whom private respondent Islamic Da'wah Council of the Philippines; Inc. represents.
1. Nature of Action: Not a Libel but a Tort Case
Private respondents filed this class suit under Articles 19, 20, 21 and 26 of the Civil Code. Accordingly, private
respondents stated their case as follows:
"Statement of Case
The Civil Code of the Philippines provides:
'Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due and observe honesty and good faith.' [Art. 19]
'Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the
latter for the same.' [Art. 20]
'Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.' [Art. 21]
'Every person shall respect the dignity, personality, privacy and peace of mind of his neighbor and other
persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a
cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relation of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious belief, lowly station in life, place of
birth, physical defect, or other personal condition.' [Art. 26]
It is on account of the foregoing provisions of our Civil Code that plaintiffs brought to the court 'a quo' a civil
case for damages on account of a published article at the editorial section of the defendant newspaper x x x."1
Petitioners acknowledge that private respondents' principal cause of action is based on tortious conduct when
petitioners state in their Petition that "[p]laintiffs rely heavily on Article 26 of the Civil Code particularly par. 4
thereof." Petitioners, however, assert that the newspaper article in question has not caused mental anguish, wounded
feelings, moral shock, social humiliation or similar injury to private respondents.2
Clearly, the instant case is not about libel which requires the identification of the plaintiff in the libelous statement. If
this were a libel case under Article 303 of the Civil Code, which authorizes a separate civil action to recover civil
liability arising from a criminal offense, I would agree that the instant case could not prosper for want of identification
of the private respondents as the libeled persons. But private respondents do not anchor their action on Article 30 of
the Civil Code.
Private respondents insist that this case is principally about tortious conduct under Article 26 of the Civil Code. Unlike
the action in Article 30 of the Civil Code which must arise from a "criminal offense," the action under Article 26 "may
not constitute a criminal offense." Article 26, adopted from American jurisprudence, covers several kinds of
intentional torts. Paragraph 4 of Article 26, which refers to acts humiliating another for his religious beliefs, is
embraced in the tort known as intentional infliction of mental or emotional distress. This case must be decided on the
issue of whether there was such tortious conduct, and not whether there was defamation that satisfied the elements of
the crime of libel.
II. The Tortious Act in Question
The newspaper article in question published by petitioners states as follows:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim? Para sa
kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at
mawalan ng ulam sa tuwing sila kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw
ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
Private respondents claim that the newspaper article, which asserts that Muslims worship the pig as their god, was
published with intent to humiliate and disparage Muslims and cast insult on Islam as a religion in this country. The
publication is not only grossly false, but is also the complete opposite of what Muslims hold dear in their religion.
The trial court found that the newspaper article clearly imputes a disgraceful act on Muslims. However, the trial court
ruled that the article was not libelous because the article did not identify or name the plaintiffs. Declared the trial
court:
"There is no doubt that the subject article contains an imputation of a discreditable4 act when it portrayed the
Muslims to be worshipping the pig as their god. Likewise, there is no doubt that the subject article was
published, the newspaper 'Bulgar' containing the same having been circulated in Metro Manila and in other
parts of the country.
The defendants did not dispute these facts x x x However, x x x identity of the person is not present.
It must be noted that the persons allegedly defamed, the herein plaintiffs were not identified with specificity.
The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs. x x x
x."
In their appeal to the Court of Appeals, private respondents assailed the trial court for "deciding the case as a libel
case rather than a case for damages for violation of Articles 19, 20, 21 and 26 of the Civil Code." The Court of
Appeals reversed the decision of the trial court not on the basis of Articles 19, 20, 21 and 26, but on the ground that
the newspaper article was libelous. Thus, the Court of Appeals held:
"It is clear from the disputed article that the defamation was directed at all adherents of the Islamic faith. It
stated that pigs were sacred and idolized as god by members of the Muslim religion. This libelous imputation
undeniably applied to the plaintiffs-appellants who are Muslims sharing the same religious beliefs."
Thus, both the trial and appellate courts found the newspaper article in question insulting and humiliating to Muslims,
causing wounded feelings and mental anguish to believers of Islam. This is a finding of fact that the Court is duty
bound to respect.5 This finding of fact establishes that petitioners have inflicted on private respondents an intentional
wrongful act — humiliating persons because of their religious beliefs. Like the trial and appellate courts, we find the
newspaper article in question dripping with extreme profanity, grossly offensive and manifestly outrageous, and
devoid of any social value. The article evidently incites religious hatred, discrimination and hostility against Muslims.
Private respondents have certainly suffered humiliation and mental distress because of their religious beliefs. The only
question is whether the wrongful act committed by petitioners, which does not constitute the crime of libel, is a case
of damnum absque injuria or an actionable tort under paragraph 4, Article 26 of the Civil Code.
III. Why Article 26 of the Civil Code was Enacted
The Code Commission explained the inclusion of Article 26 in the Civil Code in this wise:
"The present laws, criminal or civil, do not adequately cope with interferences and vexations mentioned in
Article 26.
The privacy of one's home is an inviolable right. Yet the laws in force do not squarely and effectively protect
this right.
The acts referred to in No. 2 are multifarious, and yet many of them are not within the purview of the law in
force. Alienation of the affection of another's wife or husband, unless it constituted adultery or concubinage,
is not condemned by the law, much as it may shock society. There are numerous acts, short of criminal
unfaithfulness, whereby the husband or the wife breaks the marital vows, thus causing untold moral suffering
to the other spouse. Why should not these acts be the subject matter of a civil action for damages? In
American law, they are.
Again, there is meddling of so-called friends who poison the mind of one or more members of the family
against the other members. In this manner many a happy family is broken up or estranged. Why should not
the law try to stop this by creating a civil action for damages?
Of the same nature is that class of acts specified in No. 3: intriguing to cause another to be alienated from his
friends.
No less serious are the acts mentioned in No. 4: vexing, or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect or other personal condition. The penal laws against
defamation and unjust vexation are glaringly inadequate.
Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the
latter's religion.
Not a few of the rich people treat the poor with contempt because of the latter's lowly station in life. To a
certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit
somewhere, even when the penal laws against defamation and unjust vexation are not transgressed. In a
democracy, such a limit must be established. The courts will recognize it in each case. Social equality is not
sought by the legal provision under consideration, but due regard for decency and propriety.
Place of birth, of physical defect and other personal conditions are too often the pretext of humiliation cast
upon other persons. Such tampering with human personality, even though the penal laws are not violated,
should be the cause of civil action.
The article under study denounces "similar acts" which could readily be named, for they occur with
unpleasant frequency."6 (Emphasis supplied)
The intent of the Code Commission is quite clear: Article 26 specifically applies to intentional acts which fall short of
being criminal offenses. Article 24 itself expressly refers to tortious conduct which "may not constitute criminal
offenses." The purpose is precisely to fill a gap or lacuna in the law where a person who suffers injury because of a
wrongful act not constituting a crime is left without any redress. Under Article 26, the person responsible for such act
becomes liable for "damages, prevention and other relief." In short, to preserve peace and harmony in the family and
in the community, Article 26 seeks to eliminate cases of damnum absque injuria in human relations.
Consequently, the elements that qualify the same acts as criminal offenses do not apply in determining responsibility
for tortious conduct under Article 26. Where the tortious act humiliating another because of his religious beliefs is
published in a newspaper, the elements of the crime of libel need not be satisfied before the aggrieved person can
recover damages under Article 26. In intentional tort under Article 26, the offensive statements may not even be
published or broadcasted but merely hurled privately at the offended party.
In intentional infliction of mental distress, the gravamen of the tort is not the injury to plaintiff's reputation, but the
harm to plaintiff's mental and emotional state. In libel, the gist of the action is the injury to plaintiff's reputation.
Reputation is the community's opinion of what a person is.7 In intentional infliction of mental distress, the opinion of
the community is immaterial to the existence of the action although the court can consider it in awarding damages.
What is material is the disturbance on the-mental or emotional state of the plaintiff who is entitled to peace of mind.
The offensive act or statement need not identify specifically the plaintiff as the object of the humiliation. What is
important is that the plaintiff actually suffers mental or emotional distress because he saw the act or read the statement
and it alludes to an identifiable group to which he clearly belongs.
If one of the petitioners, without specifically naming private respondents, hurled the same statement in private
separately to each of the private respondents, the act would be actionable under Article 26 because it would cause
mental distress to each private respondent. The fact that the statement was made publicly in fact makes matters worse
because the mental or emotional distress caused on private respondents would even be aggravated by the publicity.
This merely illustrates that the requirements of libel have no application in intentional torts under Article 26 where the
impression of the public is immaterial while the impact on the mind or emotion of the offended party is all-important.
That is why in American jurisprudence the tort of intentional infliction of mental or emotional distress is completely
separate and distinct8 from the twin torts of libel and slander.9
The majority opinion, however, cites the U.S. Supreme Court decision in Hustler Magazine v. Falwell10 as authority
that a person "may not recover for intentional infliction of emotional distress arising from a publication unless the
publication contained a false statement of fact that was made with actual malice, that is, with a knowledge of falsity or
reckless disregard for the truth." The majority opinion's reliance on Hustler is misplaced. The doctrine
in Hustlerapplies only to public figures, and the U.S. Supreme Court found that "respondent Falwell is a 'public figure'
for purposes of First Amendment law." The U.S. Supreme Court held in Hustler that —
"We conclude that public figures and public officials may not recover for the tort of intentional infliction of
emotional distress by reason of publication such as the one here at issue without 'a showing in addition that
the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge
that the statement was false or with reckless disregard as to whether or not it was true. x x x." (Emphasis
supplied)
Evidently, Hustler allows recovery for intentional infliction of emotional distress if the aggrieved party is a private
person and not a public figure even if there is no showing that the false statement was made with actual malice. In the
instant case, private respondents are not public figures or public officials but ordinary private individuals represented
by private respondent Islamic Da'wah Council of the Philippines, Inc.
IV. Constitutional Guarantee of 'Full Respect for Human Rights'
The 1987 Constitution provides that "[t]he State values the dignity of every human person and guarantees full respect
for human rights."11 The Constitution created a Commission on Human Rights with the function, among others, to
"[M]onitor the Philippine Government's compliance with international treaty obligations on human rights."12 The
framers of the Constitution made it clear that the term "human rights" as used in the Constitution referred to the civil
and political rights embodied in the International Covenant on Civil and Political Rights13 to which the Philippines is
a signatory. This is clear from the following exchange in the deliberations of the Constitutional Commission:
"MR. GARCIA: But it does not mean that we will refer to each and every specific article therein, but only to
those that pertain to the civil and politically related, as we understand it in this Commission on Human
Rights.
MR. GUINGONA: Madam President, I am not clear as to the distinction between social and civil rights.
MR. GARCIA: There are two international covenants: the International Covenant (on) Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights. The second covenant
contains all the different rights — the rights of labor to organize, the right to education, housing, shelter,
etcetera.
MR. GUINGONA: So we are just limiting at the moment the sense of the committee to those the Gentleman
has specified.
MR. GARCIA: Yes, to civil and political rights.
MR. GUINGONA: Thank you."14 (Emphasis supplied)
Article 20 (2) of the International Covenant on Civil and Political Rights provides that "[a]ny advocacy of x x
xreligious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." The
Human Rights Committee created under the Covenant, in its 1983 Nineteenth Session, reported to member states that:
"1. x x x In view of the nature of article 20, States parties are obliged to adopt the necessary legislative
measures prohibiting the actions referred to therein. However, the reports have shown that in some States
 such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them.
Further, many reports failed to give sufficient information concerning the relevant national legislation and
practice.
2. x x x For article 20 to become fully effective there ought to be a law making it clear that propaganda and
advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case
of violation. x x x ."15
The Covenant, being an international treaty to which the Philippines is a signatory, is part of the country's municipal
law.16 The Covenant carries great weight in the interpretation of the scope and meaning of the term "human rights" as
used in the Constitution. Unquestionably, the framers of the Constitution intentionally referred to the civil and
political rights embraced in the Covenant in describing the term "human rights." The Constitution even mandates the
independent Commission on Human Rights to monitor the compliance of the Philippine Government, which includes
the judiciary, with its treaty obligations under the Covenant.
Paragraph 4, Article 26 of the Civil Code makes civilly liable any person who humiliates another because of his
religious beliefs. This is just a soft prohibition of advocacy of religious hatred that incites discrimination, hostility or
violence, the act the Covenant seeks to curb and which the Philippine Government has undertaken to declare
unlawful. Other countries that signed the Covenant have criminalized the acts prohibited under the Covenant. Since
our ratification of the Covenant in 1986, the Philippines has not enacted any special legislation to enforce the
provisions of the Covenant, on the ground that existing laws are adequate to meet the requirements of the Covenant.
There is no other law, except paragraph 4, Article 26 of the Civil Code, that can provide a sanction against intentional
conduct, falling short of a criminal act, advocating religious hatred that incites hostility between Muslims and
Christians in this country.
If we are to comply in good faith with our treaty obligations under the Covenant, as the Constitution expressly
mandates the Philippine Government, we must give redress under Article 26 to the outrageous profanity suffered by
private respondents. Our Constitution adopts the generally accepted principles of international law as part of the law
of the land. Pacta sunt servanda — every treaty in force binds the parties who must comply with the treaty in good
faith17 — is one such principle. Thus, if we refuse to apply Article 26 to the instant case, then we admit that we have
no law to enforce the Covenant. In effect, we admit non-compliance with the Covenant.
The Supreme Court of Canada, in interpreting Canada's obligation under the Covenant, explained in R. v. Keegstra:18
"C.E.R.D. (Convention on the Elimination of All Forms of Racial Discrimination) and I.C.C.P.R.
(International Covenant on Civil and Political Rights) demonstrate that the prohibition of hate promoting
expression is considered to be not only compatible with a signatory nation's guarantee of human rights, but is
as well an obligatory aspect of this guarantee. Decisions under the European Convention for the Protection of
Human Rights and Fundamental Freedoms are also of aid in illustrating the tenor of the international
community's approach to hate propaganda and free expression. This is not to deny that finding the correct
balance between prohibiting hate propaganda and ensuring freedom of expression has been a source of debate
internationally (see, e.g., Nathan Lerner, The U.N. Convention on the Elimination of All Forms of Racial
Discrimination (1980), at pp. 43-54). But despite debate Canada, along with other members of the
international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this
court must have regard to that commitment in investigating the nature of the government objective behind s.
319(2) of the Criminal Code. That the international community has collectively acted to condemn hate
propaganda, and to oblige State Parties to C.E.R.D. and I.C.C.P.R. to prohibit such expression, thus
emphasizes the importance of the objective behind s. 319(2) and the principles of equality and the inherent
dignity of all persons that infuse both international human rights and the Charter."
As a signatory to the Covenant, the Philippines is, like, Canada, obligated under international law and the 1987
Constitution to protect the inherent dignity and human rights of all its citizens.
V. Freedom of Expression and Profane Utterances
The blatant profanity contained in the newspaper article in question is not the speech that is protected by the
constitutional guarantee of freedom of expression. Words that heap extreme profanity, intended merely to incite
hostility, hatred or violence, have no social value and do not enjoy constitutional protection. As explained by the
United States Supreme Court in the landmark case of Chaplinsky v. New Hampshire:19
 "Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances. There are
certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has
never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or
personal abuse is not in any proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question under that instrument." (Emphasis
supplied)
Chaplinsky expressly includes profane utterances as belonging to the narrowly limited classes of speech that
arenot constitutionally protected. Profane utterances, like asserting that Muslims worship the pig as their God, have no
social value meriting constitutional protection. Black's Law Dictionary (6th Ed.) defines the words "profane" and
"profanity" as follows:
"Profane. Irreverence toward God or holy things. Writing, speaking, or acting, in manifest or implied
contempt of sacred things. Town of Torrington v. Taylor, 59 Wyo. 109, 137 P.2d 621, 624; Duncan v. U.S.,
C.C.A. Or., 48 F.2d 128, 133. That which has not been consecrated."
"Profanity. Irreverence towards sacred things; particularly, an irreverent and blasphemous use of the name of
God. Vulgar, irreverent, or coarse language. It is a federal offense to utter an obscene, indecent, or profane
language on radio. 18 U.S.C.A. § 1464. See also Obscenity."
The majority opinion states that the doctrine in Chaplinsky "had largely been superseded by subsequent First
Amendment doctrines." The majority opinion then cites the 1971 case of Cohen v. California 20 as an "illustrative"
case that "American courts no longer accept the view that speech may be proscribed merely because it is 'lewd,'
'profane,' 'insulting' or otherwise vulgar or offensive." However, Hustler Magazine v. Falwell,21 a 1988 case which the
majority opinion also cites, clearly explains the state of American law on this matter, thus:
"Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations.
We recognized in Pacifica Foundation that speech that is 'vulgar, offensive, and shocking' is 'not entitled to
absolute constitutional protection under all circumstances.' In Chaplinsky v. New Hampshire, we held that that
a State could lawfully punish an individual for the use of insulting 'fighting words' — those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace.' These limitations are but
recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472 U.S. 749 (1985) that
this Court has 'long recognized that not all speech is of equal First Amendment importance.' x x x ." [other
citations omitted] x x x."
Indeed, while democratic societies maintain a deep commitment to the principle that debate on public issues should be
uninhibited, robust and wide open, this free debate has never been meant to include libelous, obscene or profane
utterances against private individuals.22 Clearly, the newspaper article in question, dripping with extreme profanity,
does not enjoy the protection of the constitutional guarantee of freedom of speech.
VI. Court's Duty and Power to Enforce Constitutional Rights
The 1987 Constitution has conferred on the Court the power to "[p]romulgate rules concerning the protection and
enforcement of constitutional rights." This is an innovation in the 1987 Constitution to insure, in the words of former
Chief Justice Roberto R. Concepcion, one of the framers of the Constitution, that "the protection and enforcement of
these constitutional rights is something that the courts have to consider in the exercise of their judicial power.23 This
provision stresses that constitutional rights, whether found in the Bill of Rights or in other provisions of the
Constitution like in the Declaration of Principles and State Policies, are "not merely declaratory but are also
enforceable."24
One such right, the enforcement and protection of which is expressly guaranteed by the State under the Constitution,
is the right to "full respect for human rights." The trial and appellate courts have found that private respondents'
religious beliefs and practices have been twisted, ridiculed and vilified by petitioners. This is a clear violation of the
human rights of private respondents under the Constitution and the International Covenant on Civil and Political
Rights. It now becomes the duty of the Court, as the guardian of the fundamental rights of the people, to exercise its
power to protect and enforce the constitutional rights of private respondents.
The Court, pursuant to its rule making power, can require that in actions like the instant case, the plaintiffs must bring
a class suit. This will avoid multiplicity of suits considering the numerous potential plaintiffs all over the country. A
judgment in a class suit, whether favorable or unfavorable to the class, is binding under the res judicataprinciple on all
members of the class whether or not they were before the court.25 This rule will address the fear that cases will
swamp the courts all over the country if profanities against religious groups are made actionable under Article 26.
VII. The Special Circumstance of Muslim Secession in the South
Limitations on freedom of expression have always been rooted on special circumstances confronting a society in its
historical development. In the 1950s, faced with rising racial tension in American society, the U.S Supreme Court
ruled in Beauharnais v. Illinois26 that hate speech which denigrates a group of persons defined by their religion, race
or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of
an individual. This was the only time that the U.S. Supreme Court upheld group libel, and since then, there has been a
consistent retreat from this doctrine as blacks and other ethnic groups became more assimilated into the mainstream of
American society. Beauharnais expressly acknowledged that race riots and massive immigration of unassimilated
ethnic groups justified the legislature in "punishing x x x libels directed at designated collectives and flagrantly
disseminated."
The majority opinion states also that Beauharnais has been superseded by Brandenburg v. Ohio."27 The majority
opinion explains that Brandenburg, a 1969 decision, ruled that "advocacy of illegal action becomes punishable only if
such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action." While Beauharnais has been apparently weakened by subsequent decisions of the U.S. Supreme Court, it was
not overturned in Brandenburg which did not even cite or mention Beauharnais. What Brandenburgoverturned
was Whitney v. California,28 thus —
"Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to
punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to
advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth
Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision
is therefore overruled." (Emphasis supplied)
In any event, Brandenburg involved the constitutionality of a criminal statute which sought to punish the mere
advocacy of violence as a means to accomplish industrial or political reform. This is distinctly different from the
instant case, which involves profane utterances that have long been recognized as devoid of social value and outside
the purview of constitutionally protected speech.29
In 1990, the Canadian Supreme Court, in R. v. Keegstra,30 upheld a law criminalizing hate speech toward any section
of the public distinguished by color, race, religion or ethnic origin. The Canadian Supreme Court rejected the clear and
present danger test of the U.S. Supreme Court, stating that it did not address the psychological trauma hate
propaganda causes and the subtle and incremental way hate propaganda works. The Canadian Supreme Court found
the U.S. Supreme Court's Beauharnais decision more reflective of Canadian values rather than later U.S. decisions
that weakened Beauharnais. The Canadian Supreme Court handed down Keegstra at a time when Canada was
becoming a multi-racial society following the influx of immigrants of different color, ethnic origin and religion. The
following passages in Keegstra are instructive:
"A myriad of sources — both judicial and academic — offer reviews of First Amendment jurisprudence as it
pertains to hate propaganda. Central to most discussions is the 1952 case of Beauharnais v. Illinois, where the
Supreme Court of the United States upheld as constitutional a criminal statute forbidding certain types of
group defamation. Though never overruled, Beauharnais appears to have been weakened by later
pronouncements of the Supreme Court (see, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v.
Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254 1964); Brandenburg v. Ohio,
395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15 (1971)). The trend reflected in many of these
pronouncements is to protect offensive, public invective as long as the speaker has not knowingly lied and
there exists no clear and present danger of violence or insurrection.
xxx xxx xxx
 The question that concerns us in this appeal is not, of course, what the law is or should be in the United
States. But it is important to be explicit as to the reasons why or why not American jurisprudence may be
useful in the s. 1 analysis of s. 319(2) of the Criminal Code. In the United States, a collection of fundamental
rights has been constitutionally protected for over 200 years. The resulting practical and theoretical
experience is immense, and should not be overlooked by Canadian courts. On the other hand, we must
examine American constitutional law with a critical eye, and in this respect La Forest J. has noted in R. v.
Rahey, (1987) 1 S.C.R. 588 at 639:
'While it is natural and even desirable for Canadian courts to refer to American constitutional
jurisprudence in seeking to elucidate the meaning of Charter guarantees that have counterparts in the
United States Constitution, they should be wary of drawing too ready a parallel between constitutions
born to different countries in different ages and in very different circumstances. . .'
Canada and the United States are not alike in every way, nor have the documents entrenching human rights in
our two countries arisen in the same context. It is only common sense to recognize that, just as similarities
will justify borrowing from the American experience, differences may require that Canada's constitutional
vision depart from that endorsed in the United States." (Other citations omitted)
xxx xxx xxx
First, it is not entirely clear that Beauharnais must conflict with existing First Amendment doctrine. Credible
arguments have been made that later Supreme Court cases do not necessarily erode its legitimacy (see, e.g.,
Kenneth Lasson, "Racial Defamation as Free Speech: Abusing the First Amendment" (1985), 17 Colum.
Human Rights L. Rev. 11). Indeed, there exists a growing body of academic writing in the United States
which evinces a stronger focus upon the way in which hate propaganda can undermine the very values which
free speech is said to protect. This body of writing is receptive to the idea that, were the issue addressed from
this new perspective, First Amendment doctrine might be able to accommodate statutes prohibiting hate
propaganda (see, e.g., Richard Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and
Name-Calling" (1982), 17 Harv. C.R.-C.L. Law Rev. 133; Irving Horowitz, "Skokie, the ACLU and the
Endurance of Democratic Theory" (1979), 43 Law & Contemp. Prob. 328; Lasson, op. cit., at pp. 20–30;
Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," (1989), 87 Mich. L. Rev.
2320, at p. 2348; "Doe v. University of Michigan: First Amendment — Racist and Sexist Expression on
Campus — Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397)."
In deciding Keegstra, the Canadian Supreme Court also relied on Canada's treaty obligations under the United Nations
International Covenant on Civil and Political Rights which requires signatory states to prohibit any "advocacy of x x x
religious hatred that constitutes incitement to discrimination, hostility or violence." During the negotiations of the
Covenant, the United States objected to this provision on free speech grounds. When it finally ratified the Covenant,
the United States made a reservation rejecting this provision insofar as it conflicts with U.S. constitutional
protections.31 The Covenant opened for ratification on December 19, 1966 and entered into force on March 23, 1976.
The Philippines ratified the Covenant in 1986 without any reservation, just like Canada. The 1987 Constitution of the
Philippines even created a Commission on Human Rights to "[M]onitor the Philippine Government's compliance with
international treaty obligations on human rights." Obviously, Canada and the Philippines are alike in their obligations
under the Covenant, but the United States is differently situated.32
In our country, there has been a long festering and bloody Muslim secessionist movement in the South, fueled not
only by poverty but also by the palpable feeling among Muslims that the Christian majority is not treating Muslims
fairly. Private respondents in the instant case, despite the outrageous profanity hurled at them by petitioners, chose not
to join their secessionist brethren in the armed struggle but instead decided to petition our courts for legal redress of
their grievance. They could have easily retaliated by flinging their own blasphemous invectives against the Christian
religion. They did not, realizing perhaps that answering profanity with more profanity would mean answering hatred
with more hatred, further dividing rather than unifying the Filipino nation.
Just last November of 2002, a Christian newspaper in Nigeria where the Miss World contest was being held opined
that the Prophet Mohammed would have approved of the beauty contest. The newspaper stated: "What would
Mohammed think? In all honesty, he would have probably chosen a wife from one of them." These words provoked
bloody rioting in Nigeria among Muslims who felt insulted by the article. Hundreds died in the religious riots. Yet the
offensive article in the Nigerian newspaper pales in comparison to the utterly profane newspaper article in the instant
case.
Indeed, private respondent Islamic Da'wah Council of the Philippines, a federation of more than 70 Muslim religious
organizations in the Philippines, deserves commendation for bringing this case before our courts for a peaceful and
legal resolution of the issue. Private respondents have placed their trust and faith in our courts, knowing and insisting
that they are entitled to a just remedy under paragraph 4, Article 26 of the Civil Code. It is time to breathe life to this
long dormant provision of the Civil Code, to give even just a token redress to religious minorities who suffer mental
and emotional distress from mindless profanity committed by irresponsible persons belonging to the religious
majority. In the process we will contribute in avoiding a further cleavage in the fabric of our nation, and demonstrate
to our Muslim brothers that their grievances can be redressed under the rule of law.
The instant case does not even call for a re-examination of the clear and present danger test which we have adopted in
this jurisdiction in determining the constitutionality of legislation that impinges on civil liberties.33 Even under the
clear and present danger test, profane utterances are not constitutionally protected at least with respect to profanities
directed against private individuals. The special circumstance involving the Muslim secessionist movement in the
South should make us more sensitive to the grievances of our Muslim brothers who continue to have faith in the rule
of law in this country.
Since the peace of mind of private respondents has been violated by the publication of the profane article in question,
Article 26 of the Civil Code mandates that the tortious conduct "shall produce a cause of action for damages,
prevention and other relief." Article 2219 of the same Code provides that "[M]oral damages may be recovered in x x x
actions referred to in Articles 21, 26 x x x ." Private respondents are entitled to moral damages because, as duly
established by the testimonies of prominent Muslims,34 private respondents suffered emotional distress which was
evidently the proximate result of the petitioners' wrongful publication of the article in question.35
VII. Conclusion
Almost thirty years ago, I had occasion to write about Article 26 in this wise:
"At the time Article 26 was lifted by the Code Commission from American jurisprudence, many of the rights
embodied therein were not yet widely accepted by American courts, and in fact even now at least one, the
right to privacy, is still struggling to gain recognition in some states. While we have been quick to leapfrog
American state decisions in recognizing such rights, we have, however, been painfully slow in galvanizing the
same in actual cases. To date Article 26 stands almost as a mere decorative provision in our statutes; but it
may be harnessed fruitfully anytime."36
Now is the time to apply this provision of law since the instant case falls clearly within paragraph 4 of Article 26.
Applying Article 26 will not undermine freedom of speech since the profane publication in question belongs to the
class of speech that clearly does not enjoy constitutional protection. Applying Article 26 demonstrates good faith
compliance with our treaty obligations under the International Covenant on Civil and Political Rights. Applying
Article 26 implements the constitutional policy that the "State values the dignity of every human person and
guarantees full respect for human rights." Applying Article 26 constitutes compliance by the Court of its constitutional
duty to protect and enforce constitutional rights. Applying Article 26 will help bind the wounds that mindless
profanities inflict on religious minorities in violation of their human rights.
Accordingly, I vote to dismiss the petition and affirm the award by the Court of Appeals of P50,000.00 moral
damages, P10,000.00 exemplary damages, and P10,000.00 attorney's fees to respondent Islamic Da'wah Council of
the Philippines, Inc. based on paragraph 4, Article 26 of the Civil Code.

Dissenting Opinion
AUSTRIA-MARTINEZ, J., dissenting:
I vote to affirm the assailed decision of the Court of Appeals with certain modifications.
For a proper perspective of the issues involved in the present petition, it must be emphasized that the portion of the
subject article which alludes to the Muslims as not eating pork because it is dirty is not the bone of contention of
respondents, because admittedly, the Muslims may eat pork if driven by necessity, as expressed in the Quran, to wit:
"Allah has forbidden you only what dies of itself and blood and the flesh of swine and that over which any
other (name) than (that of) Allah has been invoked. Then, whoever is driven by necessity, not desiring, nor
exceeding the limit, no sin is upon him."1
The focal point of private respondents' claim for damages is the insult heaped upon them because of the malicious
publication that the Muslims worship the pig as their God which is absolutely contrary to their basic belief as Muslims
that there is only one God they call Allah, and, that the greatest sin in Islam is to worship things or persons other than
Allah.2
Petitioners are liable for damages both under Articles 33 and 26(4) of the Civil Code. The instances that can be
brought under Article 26 may also be subject to an action for defamation under Article 33. In such a case, the action
brought under Article 26 is an alternative remedy, and the plaintiff can proceed upon either theory, or both, although
he can have but one recovery for a single instance of publicity.3
Article 33 of the Civil Code provides:
"Article 33. In cases of defamation, fraud and physical injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence." (Emphasis
supplied)
Necessarily, Article 353 of the Revised Penal Code comes into play. In the present civil case, it is necessary that
respondents are able to establish by preponderance of evidence the following elements of defamation:
"1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance.
"2. That the imputation must be made publicly.
"3. That it must be malicious.
"4. That the imputation must be directed at a natural or juridical person, or one who is dead.
"5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed."4
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or
defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit
or put him in contempt, or which tends to blacken the memory of one who is dead.5
As a general rule, words, written or printed, are libelous per se if they tend to expose a person to public hatred,
contempt, ridicule, aversion, or disgrace, induce an evil opinion of him in the minds of right thinking persons, and
deprive him of their friendly intercourse in society, regardless of whether they actually produce such
results.6Otherwise stated; words published are libelous if they discredit plaintiff in the minds of any considerable and
respectable class in the community, taking into consideration the emotions, prejudices, and intolerance of mankind.7 It
has been held that it is not necessary that the published statements make all or even a majority of those who read them
think any less of the person defamed, but it is enough if a noticeable part of those who do read the statements are
made to hate, despise, scorn or be contemptuous of the person concerning whom the false statements are published.8
Thus, in order to be libelous per se, the defamatory words must be of such a nature that the court can presume as a
matter of law that they will tend to disgrace and degrade the person or hold him up to public hatred, contempt, ridicule
or cause him to be shunned and avoided; in other words, they must reflect on his integrity, his character, and his good
name and standing in the community, and tend to expose him to public hatred, contempt, or disgrace.9 The imputation
must be one which tends to affect plaintiff in a class of society whose standard of opinion the court can recognize.10 It
is not sufficient, standing alone, that the language is unpleasant and annoys or irks plaintiff, and subjects him to jests
or banter, so as to affect his feelings.11
In the present case, it is evident that the subject article attributes a discreditable or dishonorable act or condition to all
Muslims in general, a derision of the religious beliefs of the Muslims and of the objectives of respondent Council to
herald the truth about Islam, in particular. The portion of the assailed article which declares that the Muslims worship
the pigs as God is obnoxiously contrary to the basic belief of the Muslims.
Thus, the article is not only an imputation of irreligious conduct but also a downright misrepresentation of the
religious beliefs of Muslims. It has been held that scandalous matter is not necessary to make a libel; it is enough if
the defendant induces an ill opinion to be held of the plaintiff, or to make him contemptible or ridiculous; 12 or that
the imputation tends to cause dishonor, discredit or contempt of the offended party.13
Petitioners' stance that the article "Alam Ba Ninyo?" is but an expression of belief or opinion does not justify said
publication. It cannot be considered as a mere information being disseminated. Petitioners' defense that the article
itself was merely a contribution of a reader, or that the writer was soliciting opinion from the readers, does not hold
water, since the article did not in any way refer to such circumstance. Verily, the article, read as a whole with the other
paragraphs, calls the attention of the readers to a statement of fact, not fiction, and that the writer speaks with
authority on the subject matter. Bulgar in fact prides itself as being the "Pahayagan Ng Katotohanan".
Significantly, liability for libel does not depend on the intention of the defamer, but on the fact of the defamation. 14In
matters of libel, the question is not what the writer of an alleged libel means, but what is the meaning of the words he
has used.15 The meaning of the writer is quite immaterial. The question is, not what the writer meant, but what he
conveyed to those who heard or read.16
In other words, it is not the intention of the speaker or writer, or the understanding of the plaintiff or of any particular
hearer or reader, by which the actionable quality of the words is to be determined. It is the meaning that the words in
fact conveyed, rather than the effect which the language complained of was fairly calculated to produce and would
naturally produce on the minds of persons of reasonable understanding, discretion, and candor, taking into
consideration accompanying explanations and surrounding circumstances which were known to the hearer or reader.
The alleged defamatory statement should be construed not only as to the expression used but also with respect to the
whole scope and apparent object of the writer.17
Want of intention to vilify does not render an objectionable publication any the less a libel and a publication is not
excused by the publisher's ignorance that it contains libelous matter.18 The state of mind of the person who publishes
a libel is immaterial in determining liability. The law looks at the tendency and consequences of the publication rather
than the motive or intention of the writer or publisher.19 It does not signify what the motive of the person publishing
the libel was, or whether he intended it to have a libelous meaning or not.20 The defendant may not have intended to
injure the plaintiff's reputation at all and he may have published the words by mistake or inadvertence,21 or in jest, or
without intending to refer, or knowing that he was referring, to the plaintiff, or any existing person, or again he may
have been actuated by the best motives in publishing the words, but such facts will usually afford the defendant no
defense, though they may be urged in mitigation of damages.22
Tested with the foregoing principles of law, there is no doubt that the article in question is defamatory under Article 33
of the Civil Code. If the imputation is defamatory,23 the Court has held that malice is presumed and the burden of
overcoming the presumption of malice by mere preponderance of evidence rested on the petitioners.
A careful examination of the records of the case does not reveal any cogent reason that would set aside the
presumption of malice. In fact, there is convincing evidence that the publication of the assailed article was malicious,
as more extensively discussed in the latter portion of herein opinion.
Furthermore, there is no showing that the instant case falls under any of the exceptions provided for in Article 354 of
the Revised Penal Code, to wit:
"Art. 354. Requirement of publicity. — Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
"1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
"2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by public officers in the exercise of their functions."
Consequently, there is no compelling reason to disregard the findings of the Court of Appeals that no evidence was
presented to overcome said presumption of malice.
On the matter of publication, there is no dispute that the same is present, as the subject article was admittedly
published in the newspaper "Bulgar" which was circulated in Metro Manila and in other parts of the country.
It must be emphasized that not only did both the trial court and the appellate court find that the subject article was
published, they also held that the subject article contains an imputation of a discreditable act when it portrayed the
Muslims to be worshipping the pig as their god.
But the trial court and the appellate court differed as to the presence of the element of the identity of the persons
defamed. While the trial court held that the libelous article does not identify the personalities of the persons defamed
and therefore respondents had no cause of action, the Court of Appeals ruled that the Muslims were the defamed
persons and respondent IDCP has the requisite personality to sue for damages. The appellate court is right.
Specific identity of the person defamed means that the third person who read or learned about the libelous article must
know that it referred to the plaintiff.24 In order to maintain a libel suit, it is essential that the victim is identifiable
although it is not necessary that he be named; it is likewise not sufficient that the offended party recognized himself as
the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the
libelous publication.25
It cannot be refuted that the obvious victims in the article in question are specifically identified — the Muslims. The
principle laid down in Newsweek, Inc. vs. Intermediate Appellate Court,26 that "where the defamation is alleged to
have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to
apply to every individual in that class or group, or sufficiently specific so that each individual in that class or group
can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need
be," obviously applies to the present case. Certainly, the defamatory imputation contained in the subject article is a
sweeping statement affecting a common or general interest of all Muslims, that is, their religious belief in Allah as the
one and only God. The publication was directed against all Muslims without exceptions and it is not necessary to
name each one of them as they could only have one cause of action which is the damage suffered by them caused by
the insult inflicted on their basic religious tenets.
All premises considered, petitioners are indeed liable for damages under Article 33 of the Civil Code.
Significantly, the respondents brought to the attention of the Court of Appeals the failure of the trial court to
appreciate Article 26(4) of the Civil Code, but the appellate court simply delved exclusively on the applicability of
libel and the existence of its elements.
Ordinarily, the Court may only pass upon errors assigned.27 However, this rule is not without exceptions. The Court
has ruled that an appellate court is accorded a broad discretionary power to consider errors not assigned, involving,
among others, (1) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal
justice; (2) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record
having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; and (3)
matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is
dependent.28 Evidently, all three exceptions apply to the present case.
Necessarily, the Court has to dwell on the applicability of Article 26 (4) of the Civil Code in support of respondents'
claim for damages.
Before proceeding any further, a distinction must first be made between a cause of action based on libel or
defamation, whether in a criminal or civil case, and one based on Article 26. In libel, the gravamen of the claim is
reputational harm; whereas, under Article 26, it can be the embarrassment, emotional harm or mental distress caused
upon a person.29 In libel cases, its four (4) constitutive elements, to wit: (a) defamatory imputation; (b) malice; (c)
publication; and (d) identifiability of the victim,30 must be established, by mere preponderance of evidence in a civil
case which herein petitioners have done in the present case. Said elements, however, are not essential in a cause of
action based on tort under Article 26, wherein one is liable for personal injury, whether administered intentionally,
wantonly or by negligence.31 Personal injury herein refers not only to reputation but also encompasses character,
conduct, manner, and habits of a person.32
American Tort Law, on the basis of which, Philippine Tort Law was patterned, has recognized that if the plaintiff is
shown to have suffered a wrong, the mere paucity of cases or absence of any precedent does not constitute sufficient
reason for refusing relief if a sound principle of law can be found which governs, or which by analogy ought to
govern.33 The fact that a case is novel does not operate to defeat recovery, if it can be brought within the general rules
of law applicable to torts.34 Neither is the fact that a tort action does not fit into a nicely defined or established
"cubbyhole" of the law has been said not to warrant, in itself, the denial of relief to one who is injured.35 Thus, to
ignore the application of the proper provision of law in the instant case would be an abdication of the judiciary's
primordial objective, which is, the just resolution of disputes.
Article 26 is an integral part of the Chapter in the Civil Code on human relations, "designed to indicate certain norms
that spring from the fountain of good conscience. These guides for human conduct should run as golden threads
through society, to the end that law may approach its supreme ideal, which is the sway and dominance of
justice."36 Article 26, which enhances and preserves human dignity and personality, provides:
"Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief.
"(1) Prying into the privacy of another's residence;
"(2) Meddling with or disturbing the private life or family relations of another;
"(3) Intriguing to cause another to be alienated from his friends;
"(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of
birth, physical defect, or other personal condition." (Emphasis supplied)
The raison d'être for the foregoing statutory provision, as stated by the Code Commission in its Report, is worth
setting forth verbatim:
"The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone
of every system of laws, of the culture and civilization of every country, is how far it dignifies man. If in
legislation, inadequate regard is observed for human life and safety; if the laws do not sufficiently forestall
human suffering, or do not try effectively to curb those factors or influences that wound the noblest
sentiments; if the statutes insufficiently protect persons from being unjustly humiliated, in short, if human
personality is not properly exalted — then the laws are indeed defective. Sad to say, such is to some "degree
the present state of legislation in the Philippines. To remedy this grave fault in the laws is one of the principal
aims of the Project of Civil Code. Instances will now be specified.
"The present laws, criminal and civil, do not adequately cope with the interferences and vexations mentioned
in Article 26."37 (Emphasis supplied)
Thus, Article 26 provides aggrieved individuals with a legal remedy against violations of human personality, even
though such do not amount to violations of penal laws. Social equality is not sought, but simply due regard for
decency and propriety.38
Among the rights covered by Article 26 are: (a) personal dignity, (b) personal security; (c) family relations, (d) social
intercourse, (e) privacy and (f) peace of mind.39 However, it has been held that the violations mentioned in the Article
26 are not exclusive but are merely examples and do not preclude other similar acts. 40 Thus, disturbing or offensive
utterances, such as threats, false statements, or insulting, humiliating, scandalous, or abusive language,41 may give
rise to an action in tort where such language causes mental or emotional disturbance, as in this case, or bodily injury
or illness resulting therefrom.42
Paragraph 4 of Article 26 which makes one liable for vexing or humiliating another on account of his religious beliefs
finds proper application in the case at bar. The Code Commission stressed in no uncertain terms that religious freedom
does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter's religion.43
In support of respondents' claim for damages, Professor Abdul Rafih Sayedy, Dean of the Institute of Islamic Affairs
of the University of the Philippines, testified in this wise:
"WITNESS:
"A: First, I understood that this tabloid is the voice of katotohanan but regarding this article it is not
'katotohanan'. To the Muslim it is a blasphemy. It is an abuse and desecration and belief of the Muslims and
the Muslims are commanded by God to worship no other than Him. So how could the publisher publish that
the Muslims are worshipping pigs, that Muslims in his mind do not eat animals while they are also eating
slaughtered chicken, cow and carabao and other non-prohibited animals. So to the Muslims this is an insult,
not only to the Muslims in Mindanao but to the whole Muslim community. This is a blasphemy to the
Muslims.
"Q As a Muslim, Professor Sayedy, how do you feel about this article?
 "A I feel insulted and I feel that the beliefs of the Muslims are over abused by the publisher and it is a
defamation and desecration on the religion of the Islam.
"Q What is the concept of God insofar as the religion of Islam is concerned?
"A The concept of God is that God is the only God, He was not begotten and He is to be worshipped and
no other to be worshipped aside from him, He has no beginning and has no end, He is the creator of all
creatures and He should be honored by all creatures."44
Clearly therefrom, the assailed article is vexatious and humiliating to Muslims as they adore only one God, they call
Allah. Muslims are called Muslims because they sincerely believe in the Quran and the Hadith (the Saying and the
Conduct of the Prophet). It cannot be over-stressed that Muslims do not eat pork because it is forbidden in the Quran
for being unclean not because they hold pigs as sacred and worship them; and that to the Muslims, the greatest sin in
Islam is to worship persons or things other than Allah.45
Petitioner Myla C. Aguja, who testified as Myla Tabora, admitted in open court that she: wrote the subject article; was
a graduate of "Mass Com"; based the said article on her interpretation of what she recalled she had read in Reader's
Digest while she was still in high school; and did not verify if what she recalled was true46 . Such shocking
irresponsible attitude on her part who at that time was an Assistant Editor of Bulgar is utterly malicious, in the same
degree as the failure of the rest of the petitioners (except Binegas, Jr.)47 to verify the truthfulness of the subject article,
for which they should be held liable for damages.
The freedom of expression and the right of speech and of the press are, to be sure, among the most zealously protected
rights in the Constitution. But the constitutional right of freedom of expression may not be availed of to broadcast lies
or half-truths nor may it be used to insult others, for such would be contrary to the plain mandate of the Civil Code for
each person "to respect the dignity, personality, privacy and peace of mind of his neighbors and other persons." The
freedom of speech does not require a journalist to guarantee the truth of what he says or publishes but it does prohibit
publishing or circulating statements in reckless disregard without any bona fide effort to ascertain the truth thereof.48
By causing the assailed article to be published in reckless disregard of the truth thereof, petitioners publisher MVRS,
Editor-in-Chief Mars C. Laconsay, Assistant Editor and writer Myla C. Aguja (Myla Tabora) exhibited utter
irresponsibility and acted contrary to the Code of Ethics adopted by the journalism profession in the Philippines, for
which they deserve condemnation. The assailed article has falsely portrayed all Muslims as worshippers of pig or
swine and thus, perverted their religious beliefs and demeaned the Muslims as a segment of human society. It belittled
the Muslims by inverting the relative importance of their religious beliefs and practice, thereby disgracing the ideals
and aspirations of the Muslim people. Such amounts to a violation of their personal dignity and peace of mind, which
are the very rights affirmed by Article 26.
Petitioner Binegas should be absolved from liability. It is not refuted that the principal function of petitioner Binegas,
Jr., as Circulation Manager of Bulgar, was to supervise the delivery and the distribution of the paper, monitor the
accounts of the agents and schedule the circulation personnel. It is likewise unrebutted that petitioner Binegas, Jr. was
never consulted on what articles are to be published; that he had no authority to decide whether or not a certain
publication of Bulgar shall be circulated; and that his only duty was to distribute the issue after its printing.49 As such,
his duty being ministerial in character, petitioner Binegas, Jr., should have been exonerated from liability.
Now, do plaintiffs-respondents IDCP and its officers have the requisite personality to institute the suit? The answer is
in the affirmative. Respondents IDCP and its officers have the requisite personality to institute the suit inasmuch as
the action is properly a class suit.
The concept of a "true" class suit has been elucidated upon in Re: Request of the Heirs of the Passengers of
Doña Paz,50 thus:
"What makes a situation a proper case for a class suit is the circumstance that there is only one right or cause
of action pertaining or belonging in common to many persons, not separately or severally to distinct
individuals.
'The 'true' class action, which is the invention of equity, is one which involves the enforcement of a
right which is joint, common, or secondary or derivative. x x (It) is a suit wherein, but for the class
action device, the joinder of all interested parties would be essential.
'A 'true class action' — as distinguished from the so-called hybrid and the spurious class action in
U.S. Federal Practice — 'involves principles of compulsory joinder, since x x (were it not) for the
 numerosity of the class members all should x x (be) before the court. Included within the true class
suit x x (are) the shareholders' derivative suit and a class action by or against an unincorporated
association x x. A judgment in a true class suit, whether favorable or unfavorable to the class, is
binding under res judicata principles upon all the members of the class, whether or not they were
before the court. It is the nondivisible nature of the right sued on which determines both the
membership of the class and the res judicata effect of the final determination of the right.'
"The object of the suit is to obtain relief for or against numerous persons as a group or as an integral entity,
and not as separate, distinct individuals whose rights or liabilities are separate from and independent of those
affecting the others." (Emphasis supplied)
In order that a class suit may prosper, Section 12, Rule 3 of the Rules of Court requires the concurrence of three (3)
essential elements, namely: (1) that the subject matter of the controversy is one of common or general interest to many
persons; (2) that the parties are so numerous that it is impracticable to bring them all before the court; and (3) that the
action be maintained by parties who will fairly and adequately represent the class.
Under the first requisite, the person who sues must have an interest in the controversy, common with those for whom
he sues, and there must be that unity of interest between him and all such other persons which would entitle them to
maintain the action if suit was brought by them jointly.51
As to what constitutes common interest in the subject matter of the controversy has been explained in Sulo ng Bayan,
Inc. vs. Araneta, Inc.,52 thus:
"The interest that will allow parties to join in a bill of complaint, or that will enable the court to dispense with
the presence of all the parties, when numerous, except a determinate number, is not only an interest in the
question, but one in common in the subject matter of the suit, x x x a community of interest growing out of the
nature and condition of the right in dispute; for, although there may not be any privity between the numerous
parties, there is a common title out of which the question arises, and which lies at the foundation of the
proceedings x x x [here] the only matter in common among the plaintiffs, or between them and the
defendants, is an interest in the question involved, which alone cannot lay a foundation for the joinder of
parties. There is scarcely a suit at law, or in equity, which settles a principle or applies a principle to a given
state of facts or in which a general statute is interpreted, that does not involve a question in which other
parties are interested x x x."
It has further been held that in order to maintain a class action there must be an ascertainable class as well as a
community of interest among the members of that class in questions of law and fact involved.53 The class must be
cognizable and manageable, and must be defined at the outset of the action. There must be a cognizable class beyond
the general strains which can be conceived to create a class of any superficially resembling parties, but it is not
necessary that the exact number comprising the class be specified or that the members be identified.54
The first element is present in this case. The class spoken of in the assailed article that segregates them from the other
members of the general populace is the Muslim people, and their common interest, undoubtedly, is their religious
belief in adoring Allah as the one and only God and that the greatest sin is to worship persons or things other than
Allah. The article is an outrageous misrepresentation, inflicting stark insult on the religious beliefs of the Muslims.
Concerning the second element, i.e., numerosity of parties — one must bear in mind that the purpose. of the rule
permitting class actions is to furnish a mode of obtaining a complete determination of the rights of the parties in such
cases, when the number is so great as to preclude involvement by actual service. In this class of cases, one is allowed
to sue for all as a matter of convenience in the administration of justice. A class action is particularly proper in an
action wherein the persons are so multitudinous as vexatiously to prolong and probably altogether prevent a full
hearing.55
Judicial notice may be taken of the fact that Muslims in this country comprise a lot of the population, thus, it is highly
impractical to make them all parties or bring them all before the court. It is beyond contradiction that the Muslims
affected by the assailed article are multitudinous, and therefore, the second element is present in the instant case.
With regards to the third element, that the action be maintained by one who fairly and adequately represents the class,
it is essential that the relief sought must be beneficial to the class members, the party must represent the entire class
asserted, and be a member of the class he claims to represent, in addition to having an interest in the controversy
common with those for whom he sues.56 For adequate representation, it is sufficient that there are persons before the
court who have the same interest as the absent persons and are equally certain to bring forward the entire merits of the
question and thus give such interest effective protection.57 It has also been held that whether the class members are
adequately represented by the named plaintiffs depends on the quality of representation rather than on the number of
representative parties as compared with the total membership of the class.58 Thus, even one member of a large class
can provide the kind of representation for all that is contemplated by the class suit.59
Respondent IDCP, as a religious organization, being a federation or umbrella organization of more than seventy (70)
Muslim religious organizations in the Philippines, and its officers who are individual respondents as well, carry the
requisite personality to file a case for damages in behalf of all Muslims. Unequivocally, they properly represent the
Muslims who are similarly situated and affected by the assailed article.
Respondent officers of IDCP namely, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and
Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih Sayedy, not only testified on how the assailed
article emotionally, as well as psychologically, affected each of them, but also as to how the said article received the
condemnation and contempt of other Muslims, further evidenced by the letter dated September 21, 1992 from thirty-
one (31) students of the Islamic University Madinah Al-Mukarramah, K.S.A.,60 and the seething letter of one Abdil T.
Arafat of South Cotabato province, dated September 29, 1992.61
Moreover, an officer may sue in his own behalf if the defamation affects him as well as the corporation62 , or where
the defamation against the officer has a direct relation to the corporation's trade or business and it causes injury63.
Thus, without a shred of doubt, respondents IDCP and the individual respondents, and all Muslims they represent,
have interest so identical that the motive and inducement to protect and preserve may be assumed to be the same in
each.64 By instituting the suit, the respondents necessarily represent all Muslims.65
Under Article 2217 of the Civil Code, moral damages which include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury, although
incapable of pecuniary computation, may be recovered for acts and actions based on Article 26.66
Individual Muslim plaintiffs-respondents, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman,
and Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih Sayedy, as proper representatives of the class
action testified on the despair, mental anguish, social humiliation and inferior feeling experienced by the Muslims as a
result of the vexatious article.67 Thus, the award of moral damages is justified.
The award of exemplary damages and attorney's fees is likewise warranted and the amount is in accordance with
Articles 222968 and 220869 of the Civil Code.
However, damages awarded to individual respondents should be deleted inasmuch as the instant case is considered as
a class suit and they merely acted as officers and members of the principal plaintiff-respondent IDCP.
One last point. There should be no room for apprehension on future litigations relating to the assailed article in view
of the fact that the instant suit is a class suit. In a class suit, each member of the class for whose benefit the action is
brought is a party plaintiff; the persons represented are quasi parties or parties by representation. A suit brought in
behalf of others in a class gives the court jurisdiction of the whole subject matter, and of all the parties, such that the
judgment will be binding on all persons belonging to the class represented.70
In other words, a judgment in a class action concludes upon all members of the class, whether formally joined as
parties or not. 71 The class action has preclusive effect against one who was not named representative of the class, as
long as he was a member of the class which was a party to the judgment.72
Thus, in the case at bar, the Muslims, who are parties represented by respondent IDCP and its officers, are thereby
precluded from instituting separate or individual suits for damages against MVRS Publications, Inc., et al., as they are
bound by the judgment in this class action, which amounts to res judicata.
In the light of all the foregoing, I am constrained to dissent from the majority opinion.

G.R. No. 146848 October 17, 2006

GMA NETWORK, INC. (formerly known as "REPUBLIC BROADCASTING SYSTEM, INC.") and REY
VIDAL,petitioners,
vs.
JESUS G. BUSTOS, M.D., TEODORA R. OCAMPO, M.D., VICTOR V. BUENCAMINO, M.D., CESAR F.
VILLAFUERTE, M.D., ARTEMIO T. ORDINARIO, M.D., and VIRGILIO C. BASILIO, M.D., respondents.
 DECISION

GARCIA, J.:
Assailed and sought to be set aside in this petition for review1 under Rule 45 of the Rules of Court is the
decision2dated January 25, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 52240 which reversed and set aside
an earlier decision3 of the Regional Trial Court (RTC) of Makati City, Branch 64, in Civil Case No. 88-1952, an
action for damages thereat commenced by the herein respondents Jesus G. Bustos, Teodora R. Ocampo, Victor V.
Buencamino, Cesar F. Villafuerte, Artemio T. Ordinario and Virgilio C. Basilio, all physicians by profession and the
former chairman and members, respectively, of the Board of Medicine, against the herein petitioners GMA Network,
Inc. (formerly Republic Broadcasting System, Inc.) and Rey Vidal.
The facts:
In August 1987, the Board of Medicine of the Professional Regulation Commission (PRC) conducted the physicians’
licensure examinations. Out of the total two thousand eight hundred thirty-five (2,835) examinees who took the
examinations, nine hundred forty-one (941) failed.
On February 10, 1988, a certain Abello and over two hundred other unsuccessful examinees filed a Petition for
Mandamus before the RTC of Manila to compel the PRC and the board of medical examiners to re-check and
reevaluate the test papers. As alleged, mistakes in the counting of the total scores and erroneous checking of answers
to test questions vitiated the results of the examinations.
As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news from courts, among other beats,
its co-petitioner Rey Vidal covered the filing of the mandamus petition. After securing a copy of the petition, Vidal
composed and narrated the news coverage for the ten o’clock evening news edition of GMA’s Channel 7 Headline
News.
The text of the news report,4 as drafted and narrated by Vidal and which GMA Network, Inc. aired and televised on
February 10, 1988, runs:
Some 227 examinees in the last August Physician Licensure Examinations today asked the Manila [RTC] to
compel the [PRC] and the Medical Board of Examiners to recheck the August 1987 test papers. The
petitioners [examinees] today went to the Presiding Judge to also ask for a special raffling of the case
considering that the next physicians examinations have been scheduled for February [1988] …. They said that
the gross, massive, haphazard, whimsical and capricious checking that must have been going on for years
should now be stopped once and for all.
The last examination was conducted last August … at the PRC central offices, the Far Eastern University and
the Araullo High School, the exams on multiple choice or matching type involve 12 subjects including
general medicine, biochemistry, surgery and obstetrics and gynecology.
21 schools participated in the examination represented by some 2,835 medical student graduates, 1,894
passed and 141 failed.
The results of the exams were released December 9 and were published the following day in metropolitan
papers last years (sic).
A group of failing examinees enlisted the help of the Offices of the President and the Vice President and as a
result were allowed by PRC … to obtain the official set of test questions. The students then researched … and
produced the key answers to the key questions.
The petitioners were also allowed to see their own test papers, most of them copying the papers ….
With these copies, they were able to match the scores and the correct answers in the examinations. They
found that the errors in checking were so material that they actually lowered the scores that formed the
individual ratings of the examinees in the various subjects.
Examples of the discrepancies are to be found in identical answers being rated as incorrect in one examinee’s
paper but correct in another. There is also the case of two different answers being rated as correct. There are
 indications of wrong counting of total scores per subject so that the totals are either short by two up to four
points.
Finally, there are raw scores that have been transmuted incorrectly so that a passing score was rendered a
failure. The petitioners said that the haphazard and whimsical and capricious checking should now be stopped
once and for all. They said that the nine years formal studies and the one year internship not to mention the
expenses and the blood, sweat, and tears of the students and their families will have been rendered nugatory.
The petitioners also noted that Com. Francia had promised last January 12 to rectify the errors in the checking
and yet they have not received the appropriate action promised whereas the next exams have been set for Feb.
20, 21, 27 and 28. (Words in bracket added.)
Stung by what they claim to be a false, malicious and one-sided report filed and narrated by a remorseless reporter, the
herein respondents instituted on September 21, 1988 with the RTC of Makati City a damage suit against Vidal and
GMA Network, Inc., then known as the Republic Broadcasting System, Inc. In their complaint,5docketed as Civil
Case No. 88-1952 and raffled to Branch 64 of the court, the respondents, as plaintiffs a quo, alleged, among other
things, that then defendants Vidal and GMA Network, Inc., in reckless disregard for the truth, defamed them by word
of mouth and simultaneous visual presentation on GMA Network, Inc.’s Channel 7. They added that, as a measure to
make a forceful impact on their audience, the defendants made use of an unrelated and old footage (showing
physicians wearing black armbands) to make it appear that other doctors were supporting and sympathizing with the
complaining unsuccessful examinees. According to the plaintiffs, the video footage in question actually related to a
1982 demonstration staged by doctors and personnel of the Philippine General Hospital (PGH) regarding wage and
economic dispute with hospital management.
In their answer with counterclaim, the defendants denied any wrongdoing, maintaining that their February 10, 1988
late evening telecast on the filing of the mandamus petition was contextually a concise and objective narration of a
matter of public concern. They also alleged that the press freedom guarantee covered the telecast in question,
undertaken as it was to inform, without malice, the viewing public on the conduct of public officials. And vis-à-vis the
particular allegation on the film footages of the PGH demonstration, defendants tagged such footages as "neutral."
Pressing the point, defendants hastened to add that the footages were accompanied, when shown, by an appropriate
voiceover, thus negating the idea conjured by the plaintiffs to create an effect beyond an obligation to report.
In the course of trial, the plaintiffs presented testimonial evidence to prove their allegations about the Vidal report
having exposed them, as professionals, to hatred, contempt and ridicule. And in a bid to establish malice and bad faith
on the part of the defendants, the plaintiffs adduced evidence tending to show that the former exerted no effort toward
presenting their (plaintiffs’) side in subsequent telecasts.
In a decision6 dated October 17, 1995, the trial court found for the herein petitioners, as defendants a quo, on the
postulate that the Vidal telecast report in question is privileged. Dispositively, the decision reads:
WHEREFORE, in view of the foregoing considerations, plaintiffs’ complaint for damages against defendants
Republic Broadcasting System Incorporated and Rey Vidal is hereby DISMISSED.
The defendants’ counterclaim for damages is likewise dismissed.
SO ORDERED.
Following the denial of their motion for reconsideration,7 herein respondents went on appeal to the CA in CA-G.R.
CV No. 52240. As stated at the threshold hereof, the appellate court, in its decision8 of January 25, 2001, reversed and
set aside that of the trial court, to wit:
WHEREFORE, the Decision dated October 17, 1995 is hereby REVERSED and SET ASIDE and
[petitioners] are hereby ordered to pay, in solidum, the following:
a) the amount of P100,000.00 for each of the [respondents] as moral damages;
b) the amount of P100,000.00 for each of the [respondents] as exemplary damages;
c) the amount of P20,000.00 as attorney’s fee;
d) and cost of suit.
SO ORDERED. (Words in brackets added.)
Hence, petitioners’ present recourse, submitting for the Court’s consideration the following questions:
 A.
WHETHER OR NOT THE CA, AFTER DECLARING THE NEWS TELECAST OF FEBRUARY 10, 1988
AS QUALIFIEDLY PRIVILEGED COMMUNICATION, COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION IN INJECTING ACTUAL MALICE TO THE NEWS TELECAST OF
FEBRUARY 10, 1988 JUST SO THAT RESPONDENT BOARD OF MEDICINE COULD RECOVER
MORAL AND EXEMPLARY DAMAGES.
B.
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION
IN COMPLETELY REJECTING PETITIONERS’ EVIDENCE THAT THE CHARACTER GENERATED
WORDS ‘FILE VIDEO’ WERE INDICATED ON SCREEN TO IDENTIFY THE SHOWING OF THE OLD
FILM FOOTAGE IN THE NEWS TELECAST OF FEBRUARY 10, 1988.
C.
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR … IN IMPUTING MALICE UPON
PETITIONERS FOR NOT PRESENTING A TAPE COPY OF THE NEWS TELECAST OF FEBRUARY 10,
1988 ON THE GRATUITOUS DECLARATION THAT A TAPE COPY COULD BE EASILY SECURED
FROM THE NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) WHICH ALLEGEDLY
KEEPS FILE COPIES OF ALL SHOWS FOR A CERTAIN PERIOD OF TIME.
D.
WHETHER OR NOT RESPONDENT BOARD OF MEDICINE CHAIRMAN AND MEMBERS THEREOF,
WHO NEVER QUESTIONED THE COURT OF APPEALS’ DECISION DATED JANUARY 25, 2001 IN A
SEPARATE AND INDEPENDENT PETITION BEFORE THE HONORABLE COURT, CAN ASK FOR AN
INCREASED AWARD IN DAMAGES FROM THE HONORABLE COURT UNDER THEIR COMMENT
DATED 7 MAY 2001.
Summed up, the issues tendered in this petition boil down to the following: (1) whether or not the televised news
report in question on the filing of the petition for mandamus against the respondents is libelous; and (2) whether or not
the insertion of the old film footage depicting the doctors and personnel of PGH in their 1982 demonstrations
constitutes malice to warrant the award of damages to the respondents.
It bears to stress, at the outset, that the trial court found the disputed news report not actionable under the law on libel,
hence no damages may be recovered. Wrote that court:
This Court finds the telecast of February 10, 1988 aired over Channel 7 by [petitioner] Rey Vidal as a straight
news report of the acts and conduct of the members of the Medical Board of Examiners who are public
officers, devoid of comment or remarks, and thus privileged, and recognized under the 1987 Constitution.
A comparative examination of the telecast of the disputed news report with the Petition for Mandamus
entitled Abello, et al., vs. Professional Regulation Commission … filed before the [RTC] by the medical
examinees reveals that the disputed news report is but a narration of the allegations contained in and
circumstances attending the filing of the said Petition for Mandamus. In the case of Cuenco vs. Cuenco, G.R.
No. L-29560, March 31, 1976 …, [it was] … held that the correct rule is that a fair and true report of a
complaint filed in Court without remarks nor comments even before an answer is filed or a decision
promulgated should be covered by the privilege. xxx. This Court adopts the ruling [in Cuenco] to support its
finding of fact that the disputed news report consists merely of a summary of the allegations in the said
Petition for Mandamus, filed by the medical examinees, thus the same falls within the protected ambit of
privileged communication.
xxx xxx xxx
Thus, [petitioners], in consideration of the foregoing observations … cannot be held liable for damages
claimed by [respondents] for simply bringing to fore information on subjects of public concern.9 (Words in
brackets supplied.)
The CA, too, regarded the text of the news telecast as not libelous and as a qualifiedly privileged communication, "[it
having been] merely lifted or quoted from the contents and allegations in the said petition [for mandamus]."10But
unlike the trial court, the CA saw fit to award damages to the respondents, it being its posture that the insertion to the
news telecast of the unrelated 1982 PGH picket film footage is evidence of malice. Without quite saying so, the CA
viewed the footage insertion as giving a televised news report otherwise privileged a libelous dimension. In the
precise words of the appellate court:
While it is the duty of the media to report to the public matters of public concern and interest, the report
should be a fair, accurate and true report of the proceedings. The subject telecast failed in this aspect. The
insertion of the film footage showing the doctors’ demonstration at the PGH several times during the
news report on the petition filed by the board flunkers undoubtedly created an impression that the said
demonstration was related to the filing of the case by the board flunkers. The insertion of the film
footage without the words ‘file video’, and which had no connection whatsoever to the petition, was
done with the knowledge of the [petitioners], thus, in wanton and reckless disregard of their duty to the
public to render a fair, accurate and true report of the same.
xxx xxx xxx
The findings of malice on the part of the [petitioners] should not be construed as a censure to the freedom of
the press since their right to render a news on matters of public concern was not the issue but rather the
misrepresentation made when they inserted a film footage of the doctors’ demonstration which created a
wrong impression of the real situation. Unquestionably, the news reporting, interview and the showing of [the
flunkers] filing the case were fair reporting. At this point, that would have been sufficient to inform the public
of what really happened. However, for reasons only known to [petitioners], they inserted the questioned
film footage which had no relation to the news being reported. There is no other conclusion that there
was motive to create an impression that the issue also affected the doctors which forced them to
demonstrate. xxx. (Words in brackets supplied).
With the view we take of this case, given the parallel unchallenged determination of the two courts below that what
petitioner Vidal reported was privileged, the award of damages is untenable as it is paradoxical.
An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation
or libel, which, in turn, presupposes malice. Libel is the public and malicious imputation to another of a discreditable
act or condition tending to cause the dishonor, discredit, or contempt of a natural or juridical person.11 Liability for
libel attaches present the following elements: (a) an allegation or imputation of a discreditable act or condition
concerning another; (b) publication of the imputation; (c) identity of the person defamed; and (d) existence of
malice.12
Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of
the imputation (malice in law). Malice, as we wrote in Brillante v. Court of Appeals,13 is a term used to indicate the
fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure
the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present
when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false
or with reckless disregard as to the truth or falsity thereof.
In the instant case, there can be no quibbling that what petitioner corporation aired in its Channel 7 in the February 10,
1988 late evening newscast was basically a narration of the contents of the aforementioned petition for mandamus.
This is borne by the records of the case and was likewise the finding of the trial court. And the narration had for its
subject nothing more than the purported mistakes in paper checking and the errors in the counting and tallying of the
scores in the August 1987 physicians’ licensure examinations attributable to the then chairman and members of the
Board of Medicine.
Conceding hypothetically that some failing specifically against the respondents had been ascribed in that news
telecast, it bears to stress that not all imputations of some discreditable act or omission, if there be any, are considered
malicious thus supplying the ground for actionable libel. For, although every defamatory imputation is presumed to be
malicious, the presumption does not exist in matters considered privileged. In fine, the privilege destroys the
presumption.
Privileged matters may be absolute or qualified.14 Absolutely privileged matters are not actionable regardless of the
existence of malice in fact. In absolutely privileged communications, the mala or bona fides of the author is of no
moment as the occasion provides an absolute bar to the action. Examples of these are speeches or debates made by
Congressmen or Senators in the Congress or in any of its committees. On the other hand, in qualifiedly or
conditionally privileged communications, the freedom from liability for an otherwise defamatory utterance is
conditioned on the absence of express malice or malice in fact. The second kind of privilege, in fine, renders the
writer or author susceptible to a suit or finding of libel provided the prosecution established the presence of bad faith
or malice in fact. To this genre belongs "private communications" and "fair and true report without any comments or
remarks" falling under and described as exceptions in Article 354 of the Revised Penal Code.15
To be sure, the enumeration under the aforecited Article 354 is not an exclusive list of conditional privilege
communications as the constitutional guarantee of freedom of the speech and of the press has expanded the privilege
to include fair commentaries on matters of public interest.16 .
In the case at bench, the news telecast in question clearly falls under the second kind of privileged matter, the same
being the product of a simple narration of the allegations set forth in the mandamus petition of examinees Abello, et
al., devoid of any comment or remark. Both the CA and the trial court in fact found the narration to be without
accompanying distortive or defamatory comments or remarks. What at bottom petitioners Vidal and GMA Network,
Inc., then did was simply to inform the public of the mandamus petition filed against the respondent doctors who were
admittedly the then chairman and members of the Board of Medicine. It was clearly within petitioner Vidal’s job as
news writer and reporter assigned to cover government institutions to keep the public abreast of recent developments
therein. It must be reiterated that the courts a quo had determined the news report in question to be qualifiedly
privileged communication protected under the 1987 Constitution.
This brings us to the more important question of whether or not the complaining respondents, in their effort to remove
the protection accorded by the privilege, succeeded in establishing ill-will and malice on the part of the petitioners in
their televised presentation of the news report in dispute, thus committing libel.
The CA, adopting the respondents’ line on the matter of malice, resolved the question in the affirmative. As the CA
noted, the insertion of an old film footage showing doctors wearing black armbands and demonstrating at the PGH,
without the accompanying character-generated words "file video," created the impression that other doctors were
supporting and sympathizing with the unsuccessful examinees.
The Court disagrees.
Contrary to the CA’s findings, the identifying character-generated words "file video" appeared to have been
superimposed on screen, doubtless to disabuse the minds of televiewers of the idea that a particular footage is current.
In the words of the trial court, the phrase "file video" was "indicated on screen purposely to prevent misrepresentation
so as not to confuse the viewing public."17 The trial court added the observation that "the use of file footage in TV
news reporting is a standard practice."18 At any rate, the absence of the accompanying character-generated words "file
video" would not change the legal situation insofar as the privileged nature of the audio-video publication complained
of is concerned. For, with the view we take of the state of things, the video footage was not libel in disguise; standing
without accompanying sounds or voices, it was meaningless, or, at least, conveyed nothing derogatory in nature.
And lest it be overlooked, personal hurt or embarrassment or offense, even if real, is not automatically equivalent to
defamation. The law against defamation protects one’s interest in acquiring, retaining and enjoying a reputation "as
good as one’s character and conduct warrant" in the community.19 Clearly then, it is the community, not personal
standards, which shall be taken into account in evaluating any allegations of libel and any claims for damages on
account thereof.
So it is that in Bulletin Publishing Corp. v. Noel,20 we held:
The term "community" may of course be drawn as narrowly or as broadly as the user of the term and his
purposes may require. The reason why for purposes of the law on libel the more general meaning of
community must be adopted in the ascertainment of relevant standards, is rooted deep in our constitutional
law. That reason relates to the fundamental public interest in the protection and promotion of free speech and
expression, an interest shared by all members of the body politic and territorial community. A newspaper …
should be free to report on events and developments in which the public has a legitimate interest, wherever
they may take place within the nation and as well in the outside world, with minimum fear of being hauled to
court by one group or another (however defined in scope) on criminal or civil charges for libel, so long as the
newspaper respects and keep within the general community. Any other rule on defamation, in a national
community like ours with many, diverse cultural, social, religious an other groupings, is likely to produce an
unwholesome "chilling effect" upon the constitutionally protected operations of the press and other
instruments of information and education.
It cannot be over-emphasized furthermore that the showing of the 1982 film footage, assuming for argument that it
contained demeaning features, was actually accompanied or simultaneously voiced over by the narration of the news
report lifted from the filing of the mandamus petition. As aptly put by the petitioners without controversion from the
respondents, there was nothing in the news report to indicate an intent to utilize such old footages to create another
news story beyond what was reported.21
To be sure, actual malice, as a concept in libel, cannot plausibly be deduced from the fact of petitioners having dubbed
in their February 10, 1988 telecast an old unrelated video footage. As it were, nothing in the said footage, be it taken
in isolation or in relation to the narrated Vidal report, can be viewed as reputation impeaching; it did not contain an
attack, let alone a false one, on the honesty, character or integrity or like personal qualities of any of the respondents,
who were not even named or specifically identified in the telecast. It has been said that if the matter is not per
se libelous, malice cannot be inferred from the mere fact of publication.22 And as records tend to indicate, the
petitioners, particularly Vidal, do not personally know or had dealings with any of the respondents. The Court thus
perceives no reason or motive on the part of either petitioner for malice. The respondents too had failed to substantiate
by preponderant evidence that petitioners were animated by a desire to inflict them unjustifiable harm or at least to
place them in a discomforting light.
Surely, the petitioners’ failure, perhaps even their indisposition, to obtain and telecast the respondents’ side is not an
indicia of malice. Even the CA, by remaining mum on this point, agrees with this proposition and with the petitioners’
proffered defense on the matter. As petitioner Vidal said while on the witness box, his business as a reporter is to
report what the public has the right to know, not to comment on news and events, obviously taking a cue from the
pronouncement of the US Fifth Circuit Court of Appeals in New York Times Co. v. Connor23 that "a reporter … may
rely on statements made by a single source even though they reflect only one side of the story without fear of libel
prosecution by a public official."
What is more, none of the herein respondents ever made a claim or pretence that he or all of them collectively was or
were among the demonstrating PGH doctors in the 1982 video footage. It thus puzzles the mind how they could claim
to have been besmirched by the use of the same video in the subject news telecast.
Given the foregoing considerations, the propriety of the award by the CA of moral and exemplary damages need not
detain us long. Suffice it to state that moral damages may be recovered only if the existence of the factual and legal
bases for the claim and their causal connection to the acts complained of are satisfactorily proven.24 Sadly, the
required quantum of proof is miserably wanting in this case. This is as it should be. For, moral damages, albeit
incapable of pecuniary estimation, are designed not to impose a penalty but to compensate one for injury sustained
and actual damages suffered.25 Exemplary damages, on the other hand, may only be awarded if the claimants,
respondents in this case, were able to establish their right to moral, temperate, liquidated or compensatory
damages.26 Not being entitled to moral damages, neither may the respondents lay claim for exemplary damages.
In all, the Court holds and so rules that the subject news report was clearly a fair and true report, a simple narration of
the allegations contained in and circumstances surrounding the filing by the unsuccessful examinees of the petition for
mandamus before the court, and made without malice. Thus, we find the petitioners entitled to the protection and
immunity of the rule on privileged matters under Article 354 (2) of the Revised Penal Code. It follows that they too
cannot be held liable for damages sought by the respondents, who, during the period material, were holding public
office.
We close this ponencia with the following oft-quoted excerpts from an old but still very much applicable holding of
the Court on how public men should deport themselves in the face of criticism:
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 by the balm of clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his officials acts. Only thus can the intelligence and dignity
of the individual be exalted. xxx.27
IN VIEW WHEREOF, the petition is GRANTED. Accordingly, the assailed decision dated January 25, 2001 of the
appellate court in CA-G.R. CV No. 52240 is REVERSED and SET ASIDE and that of the trial court
is REINSTATEDand AFFIRMED in toto.
No pronouncement as to costs.
SO ORDERED.
Puno, J., Chairperson, Sandoval-Gutierrez, Corona, and Azcuna, JJ., concur.

=======================================================================

G.R. No. 126466 January 14, 1999

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.

BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of
man, the issue of the right of free expression be stirs and presents itself time and again, in cyclic occurrence, to
inveigle, nay, challenge the courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted
moors and valleys and finally redefine the metes and bounds of its controversial domain. This, prominently, is one
such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his
right to freely and openly express his views. Blackstone's pontifical comment that "where blasphemous, immoral,
treasonable, schismatical, seditious, or scandalous libels are punished by English law ... the liberty of the press,
properly understood, is by no means infringed or violated," found kindred expression in the landmark opinion of
England's Star Chamber in the Libelis Famosis case in 1603. 1 That case established two major propositions in the
prosecution of defamatory remarks: first, that libel against a public person is a greater offense than one directed
against an ordinary man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the
venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability under the clear
and present danger rule, to the other end of the spectrum in defense of the constitutionally protected status of
unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication technology, libel principles
formulated at one time or another have waxed and waned through the years in the constant ebb and flow of judicial
review. At the very least, these principles have lost much of their flavor, drowned and swamped as they have been by
the ceaseless cacophony and din of thought and discourse emanating from just about every source and direction, aided
no less by an increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and sensibility on what
may be considered as criminal illegitimate encroachments on the right of persons to enjoy a good, honorable and
reputable name. This may explain the imperceptible demise of criminal prosecutions for libel and the trend to rely
instead on indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo Borjal and
Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven
are solidarily liable for damages for writing and publishing certain articles claimed to be derogatory and offensive to
private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now
PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner
Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the
regular writers of The Philippine Star is Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and
journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the
House of Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House Sub-
Committee on Industrial Policy, those who attended agreed to organize the First National Conference on Land
Transportation (FNCLT) to be participated in by the private sector in the transport industry and government agencies
concerned in order to find ways and means to solve the transportation crisis. More importantly, the objective of the
FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy for presentation to
Congress. The conference which, according to private respondent, was estimated to cost around P1,815,000.00 would
be funded through solicitations from various sponsors such as government agencies, private organizations, transport
firms, and individual delegates or participants.2
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao was
elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the support
of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in his
column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of a conference" without
naming or identifying private respondent. Neither did it refer to the FNCLT as the conference therein mentioned.
Quoted hereunder are excerpts from the articles of petitioner together with the dates they were published. 3
31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around organizing "seminars and
conferences" for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The
"hero" has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual
straightforward style, Transportation Secretary Rainerio "Ray" Reyes, asked that his name, be
stricken off from the letterheads the "hero" has been using to implement one of his pet "seminars."
Reyes said: "I would like to reiterate my request that you delete my name." Note that Ray Reyes is an
honest man who would confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of the names of
President Aquino and Secretary Ray Reyes. The conference program being circulated claims that
President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and
to almost all government agencies. And the letterheads carried the names of Reyes and Periquet.
Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out front Reyes
himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund solicitation
letter in the waste basket. Now, if the 3,000 persons and agencies approached by the organizer shelled
out 1,000 each, that's easily P3 million to a project that seems so unsophisticated. But note that one
garment company gave P100,000, after which the Garments Regulatory Board headed by Trade and
Industry Undersecretary Gloria Macapagal-Arroyo was approached by the organizer to expedite the
garment license application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of trash tucked inside his
closet. The Jaywalker continues to receive information about the man's dubious deals. His notoriety,
in according to reliable sources, has reached the Premier Guest House where his name is spoken like
dung.
xxx xxx xxx
The first information says that the "organizer" tried to mulct half a million pesos from a garment
producer and exporter who was being investigated for violation of the rules of the Garments, Textile,
Embroidery and Apparel Board. The "organizer" told the garment exporter that the case could be
fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter told him:
 "If I have that amount. I will hire the best lawyers, not you." The organizer left in a huff, his thick
face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker more "dope" on the
"organizer." It seems that he was not only indiscreet; he even failed to cover his tracks. You will be
hearing more of the "organizer's" exploits from this corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been spreading his wings too
far. A congressional source has informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on economic affairs. The first thing the
"organizer" did was to initiate hearings and round-the-table discussions with people from the
business, export and — his favorite — the garments sector.
xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant" had nothing but the
good of these sectors in mind. It was only later that he realized that the "consultant" was acting with a
burst of energy "in aid of extortion." The "consultant" was fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate
under a guise of a well-meaning, reformist. He has intellectual pretensions — and sometimes he
succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive
newspaper people. He has been turning out a lot of funny-looking advice on investments, export
growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-
peddlers from entering the premises of his department. But the Cabinet man might not get his wish.
There is one "organizer" who, even if physically banned, call still concoct ways of doing his thing.
Without a tinge of remorse, the "organizer" could fill up his letterheads with, names of Cabinet
members, congressmen, and reputable people from the private sector to shore up his shady reputation
and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very poor and the few
who participated in, the affair were mostly leaders of jeepney drivers' groups. None of the
government officials involved in regulating public transportation was there. The big names in the
industry also did not participate. With such a poor attendance, one wonders why the conference
organizers went ahead with the affair and tried so hard to convince 3,000 companies and individuals
to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The personalities who count in the
field of transpiration refused to attend the affair or withdrew their support after finding out the
background of the organizer of the conference. How could a conference on transportation succeed
without the participation of the big names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the "organizer"
alluded to in petitioner Borjal's columns.4 In a subsequent letter to The Philippine Star, private respondent refuted the
matters contained in petitioner Borjal's columns and openly challenged him in this manner —
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to relinquish this
position in case it is found that I have misappropriated even one peso of FNCLT money. On the other
hand, if I can prove that Borjal has used his column as a "hammer" to get clients for his PR Firm, AA
Borjal Associates, he should resign from the STAR and never again write a column. Is it a deal?5
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal for
unethical conduct. He accused petitioner Borjal of using his column as a form of leverage to obtain contracts for his
public relations firm, AA Borjal Associates.6 In turn, petitioner Borjal published a rejoinder to the challenge of private
respondent not only to protect his name and honor but also to refute the claim that he was using his column for
character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel against
petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor
handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the
Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject
of the instant case.8 In their answer, petitioners interposed compulsory counterclaims for actual, moral and exemplary
damages, plus attorney's fees and costs. After due consideration, the trial court decided in favor of private respondent
Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and
compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages,
P200,000.00 for attorney's fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award to
P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a 20-page
Decision promulgated 25 March 1996, the appellate court ruled inter alia that private respondent was sufficiently
identifiable, although not named, in the questioned articles; that private respondent was in fact defamed by petitioner
Borjal by describing him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals
who has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioner's claim
of privilege communication was unavailing since the privileged character of the articles was lost by their publication
in a newspaper of general circulation; that petitioner could have performed his officer as a newspaperman without
necessarily transgressing the rights of Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against contributing to a conference that,
according to his perception, lacked the univocal indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and, that when he
imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions to Wenceslao,
petitioner Borjal crossed the thin but clear line that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate court's decision which reduced the
amount of damages awarded him by filing with this Court a Petition for Extension of Time to File Petition and a
Motion for Suspension of Time to File Petition.9 However, in a Resolution dated 27 May 1996, the Second Division
denied both motions: the first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to the Second Division,
there was no longer any case thereat with which to consolidate this case since G.R. No. 124396 had already been
disposed of by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its
Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of
Appeals erred: (a) in ruling that private respondent Wenceslao was sufficiently identified by petitioner Borjal in the
questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of Justice and the
Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned articles, this
notwithstanding that the degree of proof required in a preliminary investigation is merely prima facieevidence which
is significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the subject articles do
not constitute qualifiedly privileged communication; (d) in refusing to apply the "public official doctrine" laid down in
New York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of action for
libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors of the City of
Manila, the Department of Justice, and eventually, the Office of the President, had already resolved that there was no
sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be held liable, in
adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate court's
ruling, the dismissal of the complaint against them for lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable
although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the
libelous publication.10 Regrettably, these requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified
Wenceslao as the "conference organizer." It cited the First National Conference on Land Transportation, the
letterheads used listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference
to the '"organizer of the conference" — the very same appellation employed in all the column items — as having
sufficiently established the identity of private respondent Wenceslao for those who knew about the FNCLT who were
present at its inception, and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by
Borjal do not identify private respondent Wenceslao as the organizer of the conference. The first of
theJaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that
private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions of
"heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and
conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National
Conference on Land Transportation whose principal organizers are not specified" (emphasis supplied). 11Neither did
the FNCLT letterheads12 disclose the identity of the conference organizer since these contained only an enumeration
of names where private respondent Francisco Wenceslao was described as Executive Director and Spokesman and not
as a conference organizer. 13 The printout 14 and tentative program 15 of the conference were devoid of any indication
of Wenceslao as organizer. The printout which contained an article entitled "Who Organized the NCLT?" did not even
mention private respondent's name, while the tentative program only denominated private respondent as "Vice
Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and that he was only a part of
the organization, thus —
I would like to clarify for the record that I was only a part of the organization. I was invited then
because I was the head of the technical panel of the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional hearings.16
Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's columns. The
former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject
articles. 17 His letter to the editor published in the 4 June 1989 issue of The Philippine Star even showed private
respondent Wenceslao's uncertainty —
Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National
Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31
column . . . 18
Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of
the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from petitioner
Borjal but from private respondent himself; when he supplied the information through his 4 June 1989 letter to the
editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles,
the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of
identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been
sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve the other issues and
pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed
articles constitute privileged communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in
character under the provisions of Art. 354 of The Revised Penal Code which state —
 Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:
1) A private communication made by any person to another in the performance of any legal, moral or
social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any judicial or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.
Respondent court explained that the writings in question did not fall under any of the exceptions described in the
above-quoted article since these were neither "private communications" nor "fair and true report . . . without any
comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the author has acted in bad faith. An example is found in
Sec. 11, Art.VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate
in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing
defamatory imputations are not actionable unless found to have been made without good intention justifiable motive.
To this genre belong "private communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The Revised Penal
Code for, as correctly observed by the appellate court, they are neither private communications nor fair and true report
without any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure,
the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its
genesis not in the nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and
of the press. 19 As early as 1918, in United States v. Cañete,20 this Court ruled that publications which are privileged
for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right
cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v.
Gutierrez21and reiterated in Santos v. Court of Appeals22 —
To be more specific, no culpability could be imputed to petitioners for the alleged offending
publication without doing violence to the concept of privileged communications implicit in the
freedom of the press. As was so well put by Justice Malcolm in Bustos: "Public policy, the welfare of
society, and the orderly administration of government have demanded protection of public opinion.
The inevitable and incontestable result has been the development and adoption of the doctrine of
privilege."
The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be
protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective
self-determination and eschews the strictly libertarian view that it is protective solely of self-expression which, in the
words of Yale Sterling Professor Owen Fiss,23 makes its appeal to the individualistic ethos that so dominates our
popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on
the penal provision exempting from liability only private communications and fair and true report without comments
or remarks defeats, rather than promotes, the objective of the rule on privileged communications, sadly contriving as it
does, to suppress the healthy effloresence of public debate and opinion as shining linchpins of truly democratic
societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action
for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly
made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in
his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may
be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is
an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts.21
There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private
respondent spelled out the objectives of the conference thus —
. . . The principal conference objective is to come up with a draft of an Omnibus Bill that will
embody a long term land transportation policy for presentation to Congress in its next regular session
in July. Since last January, the National Conference on Land Transportation (NCLT), the conference
secretariat, has been enlisting support from all sectors to ensure the success of the project.25
Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in this
seminar of the First National Conference on Land Transportation, you will need
around One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants.26
The declared objective of the conference, the composition of its members and participants, and the manner by which it
was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An
organization such as the FNCLT aiming to reinvent and reshape the transportation laws of the country and seeking to
source its funds for the project from the public at large cannot dissociate itself from the public character of its mission.
As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose
of the activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan27 which the appellate court failed to consider or, for
that matter, to heed. It insisted that private respondent was not, properly speaking, a "public official" nor a "public
figure," which is why the defamatory imputations against him had nothing to do with his task of organizing the
FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of the bloody rioting in
the American South over racial segregation. The then City Commissioner L. B. Sullivan of Montgomery, Alabama,
sued New York Times for publishing a paid political advertisement espousing racial equality and describing police
atrocities committed against students inside a college campus. As commissioner having charge over police actions
Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New
York Times on the basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that
honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The
guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.
The raison d' être for the New York Times doctrine was that to require critics of official conduct to guarantee the truth
of all their factual assertions on pain of libel judgments would lead to self-censorship, since would be critics would be
deterred from, voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt
whether it could be proved or because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At
any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong29 as —
. . . . a person who, by his accomplishments, fame, mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs and his character, has
become a "public personage." He is, in other words, a celebrity. Obviously to be included in this
category are those who have achieved some degree of reputation by appearing before the public, as in
the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is,
 however, broader than this. It includes public officers, famous inventors and explorers, war heroes
and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of
the lodge. It includes, in short, anyone who has arrived at a position where the public attention is
focused upon him as a person.
The FNCLT was air undertaking infused with public interest. It was promoted as a joint project of the government and
the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted
media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its
Executive Director and spokesman, private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would
not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public
comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a
public issue. If a matter is a subject of public or general interest, it cannot suddenly became less so merely because a
private individual is involved or because in some sense the individual did not voluntarily choose to become involved.
The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect
and significance of the conduct, not the participant's prior anonymity or notoriety.30
There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of
petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct
and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which
included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the
conference, and the management and coordination of the various activities of the conference demanded from him
utmost honesty, integrity and competence. These are matters about which the public has the right to be informed,
taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the
conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of
the "wild blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances
appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice
Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and
that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public
officials. 31
The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the
absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of
a communication destroys the presumption of malice. 32 The onus of proving actual malice then lies on plaintiff,
private respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of
malice as the true motive of his conduct.33
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person
defamed, and implies an intention to do ulterior and unjustifiable harm.34 Malice is bad faith or bad motive.35 It is the
essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner
Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire
to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or
justifiable ends. On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic
duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived
to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name
and reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused his press
freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published
with the knowledge that they are false or in reckless disregard of whether they are false or not. 37 "Reckless disregard
of what is false or not" means that the defendant entertains serious doubt as to the truth of the publication, 38 or that he
possesses a high degree of awareness of their probable falsity.39
The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or
in reckless disregard of what is false or not. This is not to say however that the very serious allegations of petitioner
Borjal assumed by private respondent to be directed against him are true. But we nevertheless find these at least to
have been based on reasonable grounds formed after the columnist conducted several personal interviews and after
considering the varied documentary evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of the Garments
and Textile Export Board (GTEB), to expedite the processing and release of the import approval and certificate of
availability of a garment firm in exchange for the monetary contribution of Juliano Lim, which necessitated a reply
from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and
clarifying that all applicants were treated
equally;40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT
notwithstanding that he had previously declined the offer;41 and, (c) that despite the fact that then President Aquino
and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest speakers in the conference, their
names were still included in the, printout of the FNCLT. 42 Added to these are the admissions of private respondent
that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in exchange for monetary
contributions to the FNCLT; 43 (b) he included the name of then Secretary of Transportation Rainerio Reyes in the
promotional materials of the conference notwithstanding the latter's refusal to lend his name to and participate in the
FNCLT;44 and, (c) he used different letterheads and telephone numbers.45
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent
with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as
critical agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel47we held -
A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to
court by one group or another on criminal or civil charges for libel, so long as the newspaper respects
and keeps within the standards of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules
governing liability for injury to reputation are required to allow an adequate margin of error by protecting some
inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person
making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed
in U.S. v. Bustos, 48 that "the interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and
unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too
thin-skinned with reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no
necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached
to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech
and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities
inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable
Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute
"unrestraint" in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and
action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the press, ought
there not also be freedom from the press? It is in this sense that self-regulation as distinguished from self-censorship
becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a powerful instrument of injustice." 49
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and
operates. For we have always strongly maintained, as we do now, that freedom of expression is man's birthright -
constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its "defensor
fidei" in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the
master, of the citizenry, and its freedom does not carry with it an restricted hunting license to prey on the ordinary
citizen. 50
On petitioners' counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private
respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the
press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within his rights to
protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the
institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could not have meant to impose a penalty on the
right to litigate, nor should counsel's fees be awarded every time a party wins a suit.51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co.52 —
Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral
with his fleet, a general with his army, a judge with his jury; we are, all of us, the subject of public
discussion. The view of our court has been thus stated: "It is only in despotisms that one must
speaksub rosa, or in whispers, with bated breath, around the corner, or in the dark on a subject
touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain
the golden mean between defamation, on one hand, and a healthy and robust right of free public
discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its Resolution
of 12 September 1996 denying reconsideration are, REVERSED and SET ASIDE, and the complaint for damages
against petitioners is DISMISSED. Petitioners' counterclaim for damages is likewise DISMISSED for lack of merit.
No costs. 1âwphi1.nêt

SO ORDERED.
Puno, Mendoza, Martinez and Buena, JJ., concur.

.R. No. 141994 January 17, 2005

FILIPINAS BROADCASTING NETWORK, INC., petitioner,
vs.
AGO MEDICAL AND EDUCATIONAL CENTER-BICOL CHRISTIAN COLLEGE OF MEDICINE,
(AMEC-BCCM) and ANGELITA F. AGO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 4 January 1999 Decision2 and 26 January 2000 Resolution of the Court of
Appeals in CA-G.R. CV No. 40151. The Court of Appeals affirmed with modification the 14 December 1992
Decision3 of the Regional Trial Court of Legazpi City, Branch 10, in Civil Case No. 8236. The Court of Appeals held
Filipinas Broadcasting Network, Inc. and its broadcasters Hermogenes Alegre and Carmelo Rima liable for libel and
ordered them to solidarily pay Ago Medical and Educational Center-Bicol Christian College of Medicine moral
damages, attorney’s fees and costs of suit.
The Antecedents
"Exposé" is a radio documentary4 program hosted by Carmelo ‘Mel’ Rima ("Rima") and Hermogenes ‘Jun’ Alegre
("Alegre").5 Exposé is aired every morning over DZRC-AM which is owned by Filipinas Broadcasting Network, Inc.
("FBNI"). "Exposé" is heard over Legazpi City, the Albay municipalities and other Bicol areas.6
In the morning of 14 and 15 December 1989, Rima and Alegre exposed various alleged complaints from students,
teachers and parents against Ago Medical and Educational Center-Bicol Christian College of Medicine ("AMEC") and
its administrators. Claiming that the broadcasts were defamatory, AMEC and Angelita Ago ("Ago"), as Dean of
AMEC’s College of Medicine, filed a complaint for damages7 against FBNI, Rima and Alegre on 27 February 1990.
Quoted are portions of the allegedly libelous broadcasts:
JUN ALEGRE:
Let us begin with the less burdensome: if you have children taking medical course at AMEC-BCCM, advise them
to pass all subjects because if they fail in any subject they will repeat their year level, taking up all subjects
including those they have passed already. Several students had approached me stating that they had consulted with
the DECS which told them that there is no such regulation. If [there] is no such regulation why is AMEC doing the
same?
xxx
Second: Earlier AMEC students in Physical Therapy had complained that the course is not recognized by
DECS. xxx
Third: Students are required to take and pay for the subject even if the subject does not have an instructor -
such greed for money on the part of AMEC’s administration. Take the subject Anatomy: students would pay for
the subject upon enrolment because it is offered by the school. However there would be no instructor for such subject.
Students would be informed that course would be moved to a later date because the school is still searching for the
appropriate instructor.
xxx
It is a public knowledge that the Ago Medical and Educational Center has survived and has been surviving for the past
few years since its inception because of funds support from foreign foundations. If you will take a look at the AMEC
premises you’ll find out that the names of the buildings there are foreign soundings. There is a McDonald Hall. Why
not Jose Rizal or Bonifacio Hall? That is a very concrete and undeniable evidence that the support of foreign
foundations for AMEC is substantial, isn’t it? With the report which is the basis of the expose in DZRC today, it
would be very easy for detractors and enemies of the Ago family to stop the flow of support of foreign foundations
who assist the medical school on the basis of the latter’s purpose. But if the purpose of the institution (AMEC) is to
deceive students at cross purpose with its reason for being it is possible for these foreign foundations to lift or suspend
their donations temporarily.8
xxx
On the other hand, the administrators of AMEC-BCCM, AMEC Science High School and the AMEC-Institute
of Mass Communication in their effort to minimize expenses in terms of salary are absorbing or continues to
accept "rejects". For example how many teachers in AMEC are former teachers of Aquinas University but were
removed because of immorality? Does it mean that the present administration of AMEC have the total definite moral
foundation from catholic administrator of Aquinas University. I will prove to you my friends, that AMEC is a
dumping ground, garbage, not merely of moral and physical misfits. Probably they only qualify in terms of
intellect. The Dean of Student Affairs of AMEC is Justita Lola, as the family name implies. She is too old to work,
being an old woman. Is the AMEC administration exploiting the very [e]nterprising or compromising and
undemanding Lola? Could it be that AMEC is just patiently making use of Dean Justita Lola were if she is very old.
As in atmospheric situation – zero visibility – the plane cannot land, meaning she is very old, low pay follows. By the
way, Dean Justita Lola is also the chairman of the committee on scholarship in AMEC. She had retired from Bicol
University a long time ago but AMEC has patiently made use of her.
xxx
MEL RIMA:
xxx My friends based on the expose, AMEC is a dumping ground for moral and physically misfit people. What does
this mean? Immoral and physically misfits as teachers.
May I say I’m sorry to Dean Justita Lola. But this is the truth. The truth is this, that your are no longer fit to teach. You
are too old. As an aviation, your case is zero visibility. Don’t insist.
xxx Why did AMEC still absorb her as a teacher, a dean, and chairman of the scholarship committee at that. The
reason is practical cost saving in salaries, because an old person is not fastidious, so long as she has money to buy the
ingredient of beetle juice. The elderly can get by – that’s why she (Lola) was taken in as Dean.
xxx
xxx On our end our task is to attend to the interests of students. It is likely that the students would be influenced by
evil. When they become members of society outside of campus will be liabilities rather than assets.What do you
expect from a doctor who while studying at AMEC is so much burdened with unreasonable imposition? What do you
expect from a student who aside from peculiar problems – because not all students are rich – in their struggle to
improve their social status are even more burdened with false regulations. xxx9(Emphasis supplied)
The complaint further alleged that AMEC is a reputable learning institution. With the supposed exposés, FBNI, Rima
and Alegre "transmitted malicious imputations, and as such, destroyed plaintiffs’ (AMEC and Ago) reputation."
AMEC and Ago included FBNI as defendant for allegedly failing to exercise due diligence in the selection and
supervision of its employees, particularly Rima and Alegre.
On 18 June 1990, FBNI, Rima and Alegre, through Atty. Rozil Lozares, filed an Answer10 alleging that the broadcasts
against AMEC were fair and true. FBNI, Rima and Alegre claimed that they were plainly impelled by a sense of
public duty to report the "goings-on in AMEC, [which is] an institution imbued with public interest."
Thereafter, trial ensued. During the presentation of the evidence for the defense, Atty. Edmundo Cea, collaborating
counsel of Atty. Lozares, filed a Motion to Dismiss11 on FBNI’s behalf. The trial court denied the motion to dismiss.
Consequently, FBNI filed a separate Answer claiming that it exercised due diligence in the selection and supervision
of Rima and Alegre. FBNI claimed that before hiring a broadcaster, the broadcaster should (1) file an application; (2)
be interviewed; and (3) undergo an apprenticeship and training program after passing the interview. FBNI likewise
claimed that it always reminds its broadcasters to "observe truth, fairness and objectivity in their broadcasts and to
refrain from using libelous and indecent language." Moreover, FBNI requires all broadcasters to pass the Kapisanan
ng mga Brodkaster sa Pilipinas ("KBP") accreditation test and to secure a KBP permit.
On 14 December 1992, the trial court rendered a Decision12 finding FBNI and Alegre liable for libel except Rima.
The trial court held that the broadcasts are libelous per se. The trial court rejected the broadcasters’ claim that their
utterances were the result of straight reporting because it had no factual basis. The broadcasters did not even verify
their reports before airing them to show good faith. In holding FBNI liable for libel, the trial court found that FBNI
failed to exercise diligence in the selection and supervision of its employees.
In absolving Rima from the charge, the trial court ruled that Rima’s only participation was when he agreed with
Alegre’s exposé. The trial court found Rima’s statement within the "bounds of freedom of speech, expression, and of
the press." The dispositive portion of the decision reads:
WHEREFORE, premises considered, this court finds for the plaintiff. Considering the degree of damages caused by
the controversial utterances, which are not found by this court to be really very serious and damaging, and
there being no showing that indeed the enrollment of plaintiff school dropped,defendants Hermogenes "Jun"
Alegre, Jr. and Filipinas Broadcasting Network (owner of the radio station DZRC), are hereby jointly and severally
ordered to pay plaintiff Ago Medical and Educational Center-Bicol Christian College of Medicine (AMEC-BCCM)
the amount of ₱300,000.00 moral damages, plus ₱30,000.00 reimbursement of attorney’s fees, and to pay the costs of
suit.
SO ORDERED. 13 (Emphasis supplied)
Both parties, namely, FBNI, Rima and Alegre, on one hand, and AMEC and Ago, on the other, appealed the decision
to the Court of Appeals. The Court of Appeals affirmed the trial court’s judgment with modification. The appellate
court made Rima solidarily liable with FBNI and Alegre. The appellate court denied Ago’s claim for damages and
attorney’s fees because the broadcasts were directed against AMEC, and not against her. The dispositive portion of the
Court of Appeals’ decision reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the modification that broadcaster Mel
Rima is SOLIDARILY ADJUDGED liable with FBN[I] and Hermo[g]enes Alegre.
SO ORDERED.14
FBNI, Rima and Alegre filed a motion for reconsideration which the Court of Appeals denied in its 26 January 2000
Resolution.
Hence, FBNI filed this petition.15
The Ruling of the Court of Appeals
The Court of Appeals upheld the trial court’s ruling that the questioned broadcasts are libelous per se and that FBNI,
Rima and Alegre failed to overcome the legal presumption of malice. The Court of Appeals found Rima and Alegre’s
claim that they were actuated by their moral and social duty to inform the public of the students’ gripes as insufficient
to justify the utterance of the defamatory remarks.
Finding no factual basis for the imputations against AMEC’s administrators, the Court of Appeals ruled that the
broadcasts were made "with reckless disregard as to whether they were true or false." The appellate court pointed out
that FBNI, Rima and Alegre failed to present in court any of the students who allegedly complained against AMEC.
Rima and Alegre merely gave a single name when asked to identify the students. According to the Court of Appeals,
these circumstances cast doubt on the veracity of the broadcasters’ claim that they were "impelled by their moral and
social duty to inform the public about the students’ gripes."
The Court of Appeals found Rima also liable for libel since he remarked that "(1) AMEC-BCCM is a dumping ground
for morally and physically misfit teachers; (2) AMEC obtained the services of Dean Justita Lola to minimize expenses
on its employees’ salaries; and (3) AMEC burdened the students with unreasonable imposition and false
regulations."16
The Court of Appeals held that FBNI failed to exercise due diligence in the selection and supervision of its employees
for allowing Rima and Alegre to make the radio broadcasts without the proper KBP accreditation. The Court of
Appeals denied Ago’s claim for damages and attorney’s fees because the libelous remarks were directed against
AMEC, and not against her. The Court of Appeals adjudged FBNI, Rima and Alegre solidarily liable to pay AMEC
moral damages, attorney’s fees and costs of suit. 1awphi1.nét

Issues
FBNI raises the following issues for resolution:
I. WHETHER THE BROADCASTS ARE LIBELOUS;
II. WHETHER AMEC IS ENTITLED TO MORAL DAMAGES;
III. WHETHER THE AWARD OF ATTORNEY’S FEES IS PROPER; and
IV. WHETHER FBNI IS SOLIDARILY LIABLE WITH RIMA AND ALEGRE FOR PAYMENT OF
MORAL DAMAGES, ATTORNEY’S FEES AND COSTS OF SUIT.
The Court’s Ruling
We deny the petition.
This is a civil action for damages as a result of the allegedly defamatory remarks of Rima and Alegre against
AMEC.17 While AMEC did not point out clearly the legal basis for its complaint, a reading of the complaint reveals
that AMEC’s cause of action is based on Articles 30 and 33 of the Civil Code. Article 3018 authorizes a separate civil
action to recover civil liability arising from a criminal offense. On the other hand, Article 3319 particularly provides
that the injured party may bring a separate civil action for damages in cases of defamation, fraud, and physical
injuries. AMEC also invokes Article 1920 of the Civil Code to justify its claim for damages. AMEC cites Articles
217621 and 218022 of the Civil Code to hold FBNI solidarily liable with Rima and Alegre.
I.
Whether the broadcasts are libelous
A libel23 is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or
omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.24
There is no question that the broadcasts were made public and imputed to AMEC defects or circumstances tending to
cause it dishonor, discredit and contempt. Rima and Alegre’s remarks such as "greed for money on the part of
AMEC’s administrators"; "AMEC is a dumping ground, garbage of xxx moral and physical misfits"; and AMEC
students who graduate "will be liabilities rather than assets" of the society are libelous per se. Taken as a whole, the
broadcasts suggest that AMEC is a money-making institution where physically and morally unfit teachers abound.
However, FBNI contends that the broadcasts are not malicious. FBNI claims that Rima and Alegre were plainly
impelled by their civic duty to air the students’ gripes. FBNI alleges that there is no evidence that ill will or spite
motivated Rima and Alegre in making the broadcasts. FBNI further points out that Rima and Alegre exerted efforts to
obtain AMEC’s side and gave Ago the opportunity to defend AMEC and its administrators. FBNI concludes that since
there is no malice, there is no libel.
FBNI’s contentions are untenable.
Every defamatory imputation is presumed malicious.25 Rima and Alegre failed to show adequately their good
intention and justifiable motive in airing the supposed gripes of the students. As hosts of a documentary or public
affairs program, Rima and Alegre should have presented the public issues "free from inaccurate and misleading
information."26 Hearing the students’ alleged complaints a month before the exposé,27 they had sufficient time to
verify their sources and information. However, Rima and Alegre hardly made a thorough investigation of the students’
alleged gripes. Neither did they inquire about nor confirm the purported irregularities in AMEC from the Department
of Education, Culture and Sports. Alegre testified that he merely went to AMEC to verify his report from an alleged
AMEC official who refused to disclose any information. Alegre simply relied on the words of the students "because
they were many and not because there is proof that what they are saying is true."28 This plainly shows Rima and
Alegre’s reckless disregard of whether their report was true or not.
Contrary to FBNI’s claim, the broadcasts were not "the result of straight reporting." Significantly, some courts in the
United States apply the privilege of "neutral reportage" in libel cases involving matters of public interest or public
figures. Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements
made against public figures is shielded from liability, regardless of the republisher’s subjective awareness of the truth
or falsity of the accusation.29 Rima and Alegre cannot invoke the privilege of neutral reportage because unfounded
comments abound in the broadcasts. Moreover, there is no existing controversy involving AMEC when the broadcasts
were made. The privilege of neutral reportage applies where the defamed person is a public figure who is involved in
an existing controversy, and a party to that controversy makes the defamatory statement.30
However, FBNI argues vigorously that malice in law does not apply to this case. Citing Borjal v. Court of
Appeals,31 FBNI contends that the broadcasts "fall within the coverage of qualifiedly privileged communications" for
being commentaries on matters of public interest. Such being the case, AMEC should prove malice in fact or actual
malice. Since AMEC allegedly failed to prove actual malice, there is no libel.
FBNI’s reliance on Borjal is misplaced. In Borjal, the Court elucidated on the "doctrine of fair comment," thus:
[F]air commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation
is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment
is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be
mistaken, as long as it might reasonably be inferred from the facts.32(Emphasis supplied)
True, AMEC is a private learning institution whose business of educating students is "genuinely imbued with public
interest." The welfare of the youth in general and AMEC’s students in particular is a matter which the public has the
right to know. Thus, similar to the newspaper articles in Borjal, the subject broadcasts dealt with matters of public
interest. However, unlike in Borjal, the questioned broadcasts are not based on established facts. The record supports
the following findings of the trial court:
xxx Although defendants claim that they were motivated by consistent reports of students and parents against plaintiff,
yet, defendants have not presented in court, nor even gave name of a single student who made the complaint to them,
much less present written complaint or petition to that effect. To accept this defense of defendants is too dangerous
because it could easily give license to the media to malign people and establishments based on flimsy excuses that
there were reports to them although they could not satisfactorily establish it. Such laxity would encourage careless and
irresponsible broadcasting which is inimical to public interests.
Secondly, there is reason to believe that defendant radio broadcasters, contrary to the mandates of their duties, did not
verify and analyze the truth of the reports before they aired it, in order to prove that they are in good faith.
Alegre contended that plaintiff school had no permit and is not accredited to offer Physical Therapy courses. Yet,
plaintiff produced a certificate coming from DECS that as of Sept. 22, 1987 or more than 2 years before the
controversial broadcast, accreditation to offer Physical Therapy course had already been given the plaintiff, which
certificate is signed by no less than the Secretary of Education and Culture herself, Lourdes R. Quisumbing (Exh. C-
rebuttal). Defendants could have easily known this were they careful enough to verify. And yet, defendants were very
categorical and sounded too positive when they made the erroneous report that plaintiff had no permit to offer
Physical Therapy courses which they were offering.
The allegation that plaintiff was getting tremendous aids from foreign foundations like Mcdonald Foundation prove
not to be true also. The truth is there is no Mcdonald Foundation existing. Although a big building of plaintiff school
was given the name Mcdonald building, that was only in order to honor the first missionary in Bicol of plaintiffs’
religion, as explained by Dr. Lita Ago. Contrary to the claim of defendants over the air, not a single centavo appears to
be received by plaintiff school from the aforementioned McDonald Foundation which does not exist.
Defendants did not even also bother to prove their claim, though denied by Dra. Ago, that when medical students fail
in one subject, they are made to repeat all the other subject[s], even those they have already passed, nor their claim
that the school charges laboratory fees even if there are no laboratories in the school. No evidence was presented to
prove the bases for these claims, at least in order to give semblance of good faith.
As for the allegation that plaintiff is the dumping ground for misfits, and immoral teachers, defendant[s] singled out
Dean Justita Lola who is said to be so old, with zero visibility already. Dean Lola testified in court last Jan. 21, 1991,
and was found to be 75 years old. xxx Even older people prove to be effective teachers like Supreme Court Justices
who are still very much in demand as law professors in their late years. Counsel for defendants is past 75 but is found
by this court to be still very sharp and effective. So is plaintiffs’ counsel.
l^vv phi1. net

Dr. Lola was observed by this court not to be physically decrepit yet, nor mentally infirmed, but is still alert and
docile.
The contention that plaintiffs’ graduates become liabilities rather than assets of our society is a mere conclusion.
Being from the place himself, this court is aware that majority of the medical graduates of plaintiffs pass the board
examination easily and become prosperous and responsible professionals.33
Had the comments been an expression of opinion based on established facts, it is immaterial that the opinion happens
to be mistaken, as long as it might reasonably be inferred from the facts.34 However, the comments of Rima and
Alegre were not backed up by facts. Therefore, the broadcasts are not privileged and remain libelousper se.
The broadcasts also violate the Radio Code35 of the Kapisanan ng mga Brodkaster sa Pilipinas, Ink. ("Radio Code").
Item I(B) of the Radio Code provides:
B. PUBLIC AFFAIRS, PUBLIC ISSUES AND COMMENTARIES
1. x x x
4. Public affairs program shall present public issues free from personal bias, prejudice andinaccurate and
misleading information. x x x Furthermore, the station shall strive to present balanced discussion of issues. x
x x.
xxx
7. The station shall be responsible at all times in the supervision of public affairs, public issues and
commentary programs so that they conform to the provisions and standards of this code.
8. It shall be the responsibility of the newscaster, commentator, host and announcer to protect public interest,
general welfare and good order in the presentation of public affairs and public issues.36 (Emphasis supplied)
The broadcasts fail to meet the standards prescribed in the Radio Code, which lays down the code of ethical conduct
governing practitioners in the radio broadcast industry. The Radio Code is a voluntary code of conduct imposed by the
radio broadcast industry on its own members. The Radio Code is a public warranty by the radio broadcast industry
that radio broadcast practitioners are subject to a code by which their conduct are measured for lapses, liability and
sanctions.
The public has a right to expect and demand that radio broadcast practitioners live up to the code of conduct of their
profession, just like other professionals. A professional code of conduct provides the standards for determining
whether a person has acted justly, honestly and with good faith in the exercise of his rights and performance of his
duties as required by Article 1937 of the Civil Code. A professional code of conduct also provides the standards for
determining whether a person who willfully causes loss or injury to another has acted in a manner contrary to morals
or good customs under Article 2138 of the Civil Code.
II.
Whether AMEC is entitled to moral damages
FBNI contends that AMEC is not entitled to moral damages because it is a corporation.39
A juridical person is generally not entitled to moral damages because, unlike a natural person, it cannot experience
physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock.40 The
Court of Appeals cites Mambulao Lumber Co. v. PNB, et al.41 to justify the award of moral damages. However, the
Court’s statement in Mambulao that "a corporation may have a good reputation which, if besmirched, may also be a
ground for the award of moral damages" is an obiter dictum.42
Nevertheless, AMEC’s claim for moral damages falls under item 7 of Article 221943 of the Civil Code. This provision
expressly authorizes the recovery of moral damages in cases of libel, slander or any other form of defamation. Article
2219(7) does not qualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a
corporation can validly complain for libel or any other form of defamation and claim for moral damages.44
Moreover, where the broadcast is libelous per se, the law implies damages.45 In such a case, evidence of an honest
mistake or the want of character or reputation of the party libeled goes only in mitigation of damages.46Neither in
such a case is the plaintiff required to introduce evidence of actual damages as a condition precedent to the recovery
of some damages.47 In this case, the broadcasts are libelous per se. Thus, AMEC is entitled to moral damages.
However, we find the award of ₱300,000 moral damages unreasonable. The record shows that even though the
broadcasts were libelous per se, AMEC has not suffered any substantial or material damage to its reputation.
Therefore, we reduce the award of moral damages from ₱300,000 to ₱150,000.
III.
Whether the award of attorney’s fees is proper
FBNI contends that since AMEC is not entitled to moral damages, there is no basis for the award of attorney’s fees.
FBNI adds that the instant case does not fall under the enumeration in Article 220848 of the Civil Code.
The award of attorney’s fees is not proper because AMEC failed to justify satisfactorily its claim for attorney’s fees.
AMEC did not adduce evidence to warrant the award of attorney’s fees. Moreover, both the trial and appellate courts
failed to explicitly state in their respective decisions the rationale for the award of attorney’s fees.49 In Inter-Asia
Investment Industries, Inc. v. Court of Appeals ,50 we held that:
[I]t is an accepted doctrine that the award thereof as an item of damages is the exception rather than the rule, and
counsel’s fees are not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees
under Article 2208 of the Civil Code demands factual, legal and equitable justification, without which the
award is a conclusion without a premise, its basis being improperly left to speculation and conjecture. In all
events, the court must explicitly state in the text of the decision, and not only in the decretal portion thereof, the legal
reason for the award of attorney’s fees.51 (Emphasis supplied)
While it mentioned about the award of attorney’s fees by stating that it "lies within the discretion of the court and
depends upon the circumstances of each case," the Court of Appeals failed to point out any circumstance to justify the
award.
IV.
Whether FBNI is solidarily liable with Rima and Alegre for moral damages, attorney’s fees and costs of suit
FBNI contends that it is not solidarily liable with Rima and Alegre for the payment of damages and attorney’s fees
because it exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre.
FBNI maintains that its broadcasters, including Rima and Alegre, undergo a "very regimented process" before they are
allowed to go on air. "Those who apply for broadcaster are subjected to interviews, examinations and an
apprenticeship program."
FBNI further argues that Alegre’s age and lack of training are irrelevant to his competence as a broadcaster. FBNI
points out that the "minor deficiencies in the KBP accreditation of Rima and Alegre do not in any way prove that
FBNI did not exercise the diligence of a good father of a family in selecting and supervising them." Rima’s
accreditation lapsed due to his non-payment of the KBP annual fees while Alegre’s accreditation card was delayed
allegedly for reasons attributable to the KBP Manila Office. FBNI claims that membership in the KBP is merely
voluntary and not required by any law or government regulation.
FBNI’s arguments do not persuade us.
The basis of the present action is a tort. Joint tort feasors are jointly and severally liable for the tort which they
commit.52 Joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance,
cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their
benefit.53 Thus, AMEC correctly anchored its cause of action against FBNI on Articles 2176 and 2180 of the Civil
Code. 1a\^/phi1.net

As operator of DZRC-AM and employer of Rima and Alegre, FBNI is solidarily liable to pay for damages arising
from the libelous broadcasts. As stated by the Court of Appeals, "recovery for defamatory statements published by
radio or television may be had from the owner of the station, a licensee, the operator of the station, or a person who
procures, or participates in, the making of the defamatory statements."54 An employer and employee are solidarily
liable for a defamatory statement by the employee within the course and scope of his or her employment, at least
when the employer authorizes or ratifies the defamation.55 In this case, Rima and Alegre were clearly performing their
official duties as hosts of FBNI’s radio program Exposé when they aired the broadcasts. FBNI neither alleged nor
proved that Rima and Alegre went beyond the scope of their work at that time. There was likewise no showing that
FBNI did not authorize and ratify the defamatory broadcasts.
Moreover, there is insufficient evidence on record that FBNI exercised due diligence in
the selection andsupervision of its employees, particularly Rima and Alegre. FBNI merely showed that it exercised
diligence in theselection of its broadcasters without introducing any evidence to prove that it observed the same
diligence in thesupervision of Rima and Alegre. FBNI did not show how it exercised diligence in supervising its
broadcasters. FBNI’s alleged constant reminder to its broadcasters to "observe truth, fairness and objectivity and to
refrain from using libelous and indecent language" is not enough to prove due diligence in the supervision of its
broadcasters. Adequate training of the broadcasters on the industry’s code of conduct, sufficient information on libel
laws, and continuous evaluation of the broadcasters’ performance are but a few of the many ways of showing
diligence in the supervision of broadcasters.
FBNI claims that it "has taken all the precaution in the selection of Rima and Alegre as broadcasters, bearing in mind
their qualifications." However, no clear and convincing evidence shows that Rima and Alegre underwent FBNI’s
"regimented process" of application. Furthermore, FBNI admits that Rima and Alegre had deficiencies in their KBP
accreditation,56 which is one of FBNI’s requirements before it hires a broadcaster. Significantly, membership in the
KBP, while voluntary, indicates the broadcaster’s strong commitment to observe the broadcast industry’s rules and
regulations. Clearly, these circumstances show FBNI’s lack of diligence in selecting andsupervising Rima and Alegre.
Hence, FBNI is solidarily liable to pay damages together with Rima and Alegre.
WHEREFORE, we DENY the instant petition. We AFFIRM the Decision of 4 January 1999 and Resolution of 26
January 2000 of the Court of Appeals in CA-G.R. CV No. 40151 with the MODIFICATION that the award of moral
damages is reduced from ₱300,000 to ₱150,000 and the award of attorney’s fees is deleted. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati,
Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1envisioned, sometime in 1987,
the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners
discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos
and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and
Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his
approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the
projected motion picture enclosing a synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern
history that-made possible the Peaceful revolution in the Philippines in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history
Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the
revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from
the country.
These character stories have been woven through the real events to help our huge international
audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects
the average American attitude to the Phihppinence —once a colony, now the home of crucially
important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for
him, there appears to be no alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in
the events as it becomes dear that the time has come for a change. Through Angle and her
relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the
developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to
Defense Minister Enrile, and ultimately their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who
despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters,
Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl,
politically moderate and very much in love with Tony. Ultimately, she must choose between her love
and the revolution.
Through the interviews and experiences of these central characters, we show the complex nature of
Filipino society, and thintertwining series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters and experience directly dramatic
recreation of the revolution. The story incorporates actual documentary footage filmed during the
period which we hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays to his
credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for some 18
 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts
the complex issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA
revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as
background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use,
appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any
cinema or television production, film or other medium for advertising or commercial exploitation" and further advised
petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to
any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the
movie script, and petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and
Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof,
seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that
petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an
obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining
Order and set for hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction
contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and
that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been
completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners,
the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons
and entities employed or under contract with them, including actors, actresses and members of the
production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and
desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from
making any reference whatsoever to plaintiff or his family and from creating any fictitious character
in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or
similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if
the Court should finally decide that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988
with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-
82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer
for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a
consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially
enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary
Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected
mini-series which do not make any reference to private respondent or his family or to any fictitious character based on
or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.
I
The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in
producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected
under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the
production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is
entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this
freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to
diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of
communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and entertainment. In Gonzales v.
Katigbak,3 former Chief Justice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas and the
expression of the artistic impulse. Their effect on the perception by our people of issues and public
officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There
is no clear dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free expression. ...4
This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies.
Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield
monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in
many other countries, media facilities are owned either by the government or the private sector but the private sector-
owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing
activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to
exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of
expression can only result in the drastic contraction of such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then
Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law,
however, to mark out the precise scope and content of this right in differing types of particular situations. The right of
privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into
a person's privacy has long been regarded as permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him constitute of apublic character. 7Succinctly put, the right
of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to
be protected by the right of privacy is the right to be free from unwarrantedpublicity, from the wrongful publicizing of
the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context
which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as
licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right
to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for
the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder,
Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the
judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion
picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of,
or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and
 authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his
mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to
preventa violation of their own rights in the character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the life of Moises
Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does
not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person,
no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU
549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life
Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech
and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and
expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the
consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's
claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on
the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla
without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in
Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in given situation or type
of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by respondent and the
right of freedom of expression invoked by petitioner. taking into account the interplay of those
interests, we hold that under the particular circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant
Petitions, the Court believes that a different conclusion must here be reached: The production and filming by
petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case,
constitute an unlawful intrusion upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of
the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has
restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in
Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and
exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of
invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability
may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge
should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a
complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected
motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear
and present danger" of any violation of any right to privacy that private respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at
Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly,
such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The
subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having
passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of
mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate
to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad,
which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have
here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day
Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to
be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the
change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the
production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as
is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that
of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film
were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a
position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to privacy. Three
reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it; that their personalities and their
affairs has already public, and could no longer be regarded as their own private business; and that
the press had a privilege, under the Constitution, to inform the public about those who have become
legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was
held that there was no liability when they were given additional publicity, as to matters legitimately
within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held to arise out of
the desire and the right of the public to know what is going on in the world, and the freedom of the
press and other agencies of information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of
information which arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance
of one supposed to have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.
 The privilege of enlightening the public was not, however, limited, to the dissemination of news in the
scene of current events. It extended also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human
activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of censorship over
what the public may be permitted to read; and they were understandably liberal in allowing the
benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the
culminating events of the change of government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of
an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to
be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was
directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the
Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and
of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture
must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or
reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must,
further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice
Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four
Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those
events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even
without a license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining
Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions,
Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from
further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors
and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151.
Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the
same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was
substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil
Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated,
deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private
respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a
component of the cause of action is understandable considering that court pleadings are public records; that private
respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose
from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the
cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not
identical.
For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or
not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal
processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited
any right the might have had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial
court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of
respondent Judge's Order of 16 March 1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari
with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory
jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to
DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order
dated 25 March 1988 and any Preliminary Injunction that may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento,
Cortes and Griño-Aquino, JJ., concur.

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S.
YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE,
and DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List,
LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and
JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA,
JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE,
JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications Technology Office, NONNATUS CAESAR R.
ROJAS, Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government,Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE
(PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION
TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK
RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL
O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC.
PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR
PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of
Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA
M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine
National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE
FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by
Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR.,
LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE
DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can
connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade
houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has a
legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to prevent
these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended the
original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in determining
the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools
and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical
hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who come into
an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the search,
the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free card."6Since the
ethical hacker does his job with prior permission from the client, such permission would insulate him from the
coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed
freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms.
There is no freedom to destroy other people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to
intimidate the free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if
no damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its existence as
early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court explained
in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of
these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and seizures,
which is the basis of the right to be let alone, and (b) the right to privacy of communication and correspondence.17 In
assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data. 19 The law
punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender,
and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news reporting or social
investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required by
this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear that
private communications of sexual character between husband and wife or consenting adults, which are not regarded as
crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In common
usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or "a token of
love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a
proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity to some."23 The understanding of those
who drew up the cybercrime law is that the element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse
or lascivious conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other purpose
than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of individuals
against the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed.
Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.30The
Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet
the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies
to the tweet could be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information in
any part of the message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited
ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters
is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients
always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same
level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:
 1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or
both, in addition to the civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice" from
the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme
negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such element is required
to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available
where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and
Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a
stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a public
figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as
there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and
for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.48Indeed,
the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special duties
and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be
provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or
article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted.
The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a world
apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-
click reply options offered by the networking site as well as by the speed with which such reactions are disseminated
down the line to other internet users. Whether these reactions to defamatory statement posted on the internet constitute
aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times
sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea
of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace
use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a
year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update their
profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or
to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is
just reposting or republishing another person’s tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog; and
f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com
(blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends
of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it
interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing
by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical
world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or
Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern
for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises
special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional protection. That danger provides further
reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect
on those who express themselves through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the
cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of the Court on
the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these
doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-
protected freedom of expression of the great masses that use it. In this case, the particularly complex web of
interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively
enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography
and facilitates the completion of transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography crimes? 68 Byars highlights a feature
in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a
plain user of interactive computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or
not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In
this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal
prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet
users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section
4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom
of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5 that
punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username
and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section
4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission
of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant provisions
of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses
arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the
determination of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses,
one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that
online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4)
merely establishes the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding
One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with
the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate to
the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have been
connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the
above-stated information.
The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision itself
is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of
the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on
Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or
record "traffic data, in real time, associated with specified communications."83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located
nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation of
privacy must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one another.
Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is broken
up into packets and around each of these packets is a wrapper or header. This header contains the traffic data:
information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice call,
video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits
together with other packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient, only their coded
internet protocol (IP) addresses. The packets travel from one computer system to another where their contents are
pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are refitted
together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service
provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also
reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same
basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users
in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to complete a
call. That Court ruled that even if there is an expectation that phone numbers one dials should remain private, such
expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s close
associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond what
the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing
with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General suggests
that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court cannot
draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of
a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a
general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their
sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out, the
thing to be searched stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that
the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations must
be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern
terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and
a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written
with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing
to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to
preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken
the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal property
in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic data that
essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are to
be considered private communications. But it is not clear that a service provider has an obligation to indefinitely keep
a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law now
requires service providers to keep traffic data and subscriber information relating to communication services for at
least six months from the date of the transaction and those relating to content data for at least six months from receipt
of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an
order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively
a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
 (e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of
the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable,
the necessary information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On
its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant.
The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15
does not appear to supersede existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon
the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service provider’s
storage systems and prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the user
has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in its
storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data
or received it. He could also request the service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the
freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one
of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each
and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still
be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not
struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned
agencies and for the formulation and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of the
1avvphi1

delegate’s authority and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber environment and organization and user’s assets.104 This
definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are
likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access
to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in
bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve
traffic data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;
 k. Section 15 that authorizes the search, seizure, and examination of computer data under a
court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwph i1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA
and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred
right to expression of the electorate during political contests no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates — during elections.
Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and
temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove
Campaign Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of
the present case.4 This tarpaulin contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH)
Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH Law.6Those
who voted for the passing of the law were classified by petitioners as comprising "Team Patay," while those who
voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan

Party List Bayan Muna

Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate.
Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians
who helped in the passage of the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City,
issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups with the following names and
messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of the
said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election propaganda material, otherwise, we
shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with application for preliminary injunction and temporary
restraining order.14 They question respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013.
They pray that: (1) the petition be given due course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned
orders of respondents as unconstitutional and void, and permanently restraining respondents from enforcing them or
any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under
Rule 65 of the Rules of Court filed before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its
mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10
days or by April 1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE

AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC
DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS
NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,

WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE
SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES
THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders, decisions,
rulings, or judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers, reviewable via
Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise objections
relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to review
is "limited only to final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the assailed notice and letter are reviewable
only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to
decide all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest.32At
issue was the validity of the promulgation of a COMELEC Division resolution.33 No motion for reconsideration was
filed to raise this issue before the COMELEC En Banc. This court declared that it did not have jurisdiction and
clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and decisionsof the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division.The
Supreme Court has no power to review viacertiorari, an interlocutory order or even a final resolution of a Division of
the Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general
rule. Repolwas another election protest case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First Division issued a status quo ante order against the
Regional Trial Court executing its decision pending appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a COMELEC
Division.38However, consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration]
may be glossed over to prevent miscarriage of justice, when the issue involves the principle of social justice or the
protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests — despite
not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the COMELEC
Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving candidates for
the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari against
an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main election
protest case.43 Sorianoapplied the general rule that only final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty
candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner could not qualify for the
2007 elections due to the findings in an administrative case that he engaged in vote buying in the 1995 elections.46 No
motion for reconsideration was filed before the COMELEC En Banc. This court, however, took cognizance of this
case applying one of the exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty candidates
of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance.49 This court clarified the general rule and refused to take
cognizance of the review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled
that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this
court from taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their
fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or quasi-
judicial power. This case pertains to acts of COMELEC in the implementation of its regulatory powers. When it
issued the notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the "chilling effect"
caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to freedom of expression and violate the
principle of separation of church and state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter
jurisdiction is defined as the authority "to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the court and defines its
powers."55 Definitely, the subject matter in this case is different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the restrictions imposed by COMELEC. Political
speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with which we protect this kind of speech
does not depend on our evaluation of the cogency of the message. Neither do we assess whether we should protect
speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation
in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty of this case,it could result in a "chilling effect" that would
affect other citizens who want their voices heard on issues during the elections. Other citizens who wish to express
their views regarding the election and other related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s expanded
exercise of certiorari as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions affectingelections. Article
IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the
number and location of polling places, appointment of election officials and inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused
it. We are confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts
threatening imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free speech. This
does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this provision
cannot be interpreted to mean that COMELEC has the exclusive power to decide any and allquestions that arise
during elections. COMELEC’s constitutional competencies during elections should not operate to divest this court of
its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This provision
provides for this court’s original jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from COMELEC is within this court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with
unconstitutionality on the part of any government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court’s constitutional mandate to protect the people against government’s infringement of their
fundamental rights. This constitutional mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their
petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent jurisdiction is
sufficient ground for the dismissal of their petition.57 They add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while there are exceptions to
the general rule on hierarchy of courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling reasons, or [by] the nature and importance of the issues raised.
. . ."61 Petitioners submit that there are "exceptional and compelling reasons to justify a direct resort [with] this
Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not
to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to
deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal
with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on
petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when
serious and important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition, and
mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals
or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the
judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law
which may include the validity of an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before them. In many
instances, the facts occur within their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The consequences, of course, would be national in scope. There
are, however, some cases where resort to courts at their level would not be practical considering their decisions could
still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made
by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the
trial court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the light of new
circumstances or in the light of some confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in
order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect constitutional rights
when these become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and specifically raised in the petition."70 As
correctly pointed out by petitioners,71 we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be addressed
at the most immediate time. A direct resort to this court includes availing of the remedies of certiorari and prohibition
toassail the constitutionality of actions of both legislative and executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of expression in the
present case, but also of others in future similar cases. The case before this court involves an active effort on the part
of the electorate to reform the political landscape. This has become a rare occasion when private citizens actively
engage the public in political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an
age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined
by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited.
It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to
realize his full potentialities.It spurns the alternative of a society that is tyrannical, conformist, irrational and
stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political decision-
making is recognized. It deserves the highest protection the courts may provide, as public participation in nation-
building isa fundamental principle in our Constitution. As such, their right to engage in free expression of ideas must
be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In these cases, the imminence and
clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when
clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the context of elections. The right to suffrage
not only includes the right to vote for one’s chosen candidate, but also the right to vocalize that choice to the public in
general, in the hope of influencing their votes. It may be said that in an election year, the right to vote necessarily
includes the right to free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no jurisprudence yet
exists that will guide the lower courts on this matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it
best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there
is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of
suffrage includes the right of freedom of expression. This is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgmentof this Court
in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and
with the concurrence of the majority of those who participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether
COMELEC committed grave abuse of discretion or performed acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election period.
Although the elections have already been concluded, future cases may be filed that necessitate urgency in its
resolution. Exigency in certain situations would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to disregard, suspend, or contradict any order of
the Commission on Elections: that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts,
any ruling on their part would not have been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the powers and duties imposed upon
COMELEC. Hence, a ruling by this court would be in the best interest of respondents, in order that their actions may
be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of
law that could free them from the injurious effects of respondents’ acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling
reason to justify the direct resort to this court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past, questions similar to these which this court
ruled on immediately despite the doctrine of hierarchy of courts included citizens’ right to bear arms,83government
contracts involving modernization of voters’ registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this
court. While generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions and,
as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the
ambit of this court’s power of review. They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to support
their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." I see
neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of general application, must yield to
the specific demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the "weak" in our
society but it is to me a genuine attempt on the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be equally perceived as giving real life to the
candidates’ right of free expression rather than being viewed as an undue restriction of that freedom. The wisdom in
the enactment of the law, i.e., that which the legislature deems to be best in giving life to the Constitutional mandate,
is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their right to freedom of expression. This case concerns the right
of petitioners, who are non-candidates, to post the tarpaulin in their private property, asan exercise of their right of free
expression. Despite the invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political
forums, particularly the legislature, the creation of the textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for general application by the executive branch. Thus, the creation
of the law is not limited by particular and specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-case
basis, where parties affected by the legal provision seek the courts’ understanding of the law.
The complementary nature of the political and judicial branches of government is essential in order to ensure that the
rights of the general public are upheld at all times. In order to preserve this balance, branches of government must
afford due respectand deference for the duties and functions constitutionally delegated to the other. Courts cannot rush
to invalidate a law or rule. Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no political question. It can
be acted upon by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of
the Constitution.
A political question arises in constitutional issues relating to the powers or competence of different agencies and
departments of the executive or those of the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies,
as provided by the Constitution or the law. In such situation, presumptively, this court should act with deference. It
will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave
abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an evolution since the timethat it
had been first invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context of
the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend
was followed in cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution
involving the removal of petitioners from the Commission on Appointments. In times past, this would have involved a
quint essentially political question as it related to the dominance of political parties in Congress. However, in these
cases, this court exercised its power of judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a constitutional duty or power was
exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa political
question did not bar an examination of whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of discretion in the President’s use of his
power to call out the armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President resigned was not a
political question even if the consequences would be to ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional
issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of
judicial review expanding on principles that may avert catastrophe or resolve social conflict.
This court’s understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary
Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised
or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline
to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of
the President, nor does it constitute interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was discussed most extensively in
Francisco v. HRET.99 In this case, the House of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario Davide was a political question beyond the
ambit of this court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring and dissenting
opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution
which expanded the definition of judicial power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of political question. He opined that the language luminously
suggests that this duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the original, citations
omitted)
Francisco also provides the cases which show the evolution of the political question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution
limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover,
as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the
rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability
of the principle in appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even
if we were to assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable question lies in
the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the
government properly acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed
limits on powers or functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right may
be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative remedies. Respondents insist
that petitioners should have first brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law."103 They add that the proper venue to assail the
validity of the assailed issuances was in the course of an administrative hearing to be conducted by COMELEC.104 In
the event that an election offense is filed against petitioners for posting the tarpaulin, they claim that petitioners should
resort to the remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something had by then been accomplished or performed by either
branch [or in this case, organ of government] before a court may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable relevance
especially during the elections. COMELEC’s letter threatening the filing of the election offense against petitioners is
already an actionable infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings
prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v. Gonzales,107 Justice Carpio in
a separate opinion emphasized: "[i]f everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections
would be at the top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is
within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial action may be
validly resorted to immediately: (a) when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (d)
when there is estoppel on the part ofthe administrative agency concerned; (e) when there is irreparable injury; (f)
when the respondent is a department secretary whose acts as analter ego of the President bear the implied and
assumed approval of the latter; (g) when to require exhaustion of administrative remedies would be unreasonable; (h)
when it would amount to a nullification of a claim; (i) when the subject matter is a private land in land case
proceedings; (j) whenthe rule does not provide a plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat the assailed
issuances violated their right to freedom of expression and the principle of separation of church and state. This is a
purely legal question. Second, the circumstances of the present case indicate the urgency of judicial intervention
considering the issue then on the RH Law as well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to except a case from their
operation when compelling reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat
constitutes [as] good and sufficient cause that will merit suspension of the rules is discretionary upon the
court".112Certainly, this case of first impression where COMELEC has threatenedto prosecute private parties who seek
to participate in the elections by calling attention to issues they want debated by the publicin the manner they feel
would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to regulate
the tarpaulin.113 However, all of these provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do theybelong to any political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from
covering plebiscite issues on the day before and on plebiscite day.117 Sanidad argued that the prohibition was a
violation of the "constitutional guarantees of the freedom of expression and of the press. . . ."118 We held that the "evil
sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the
candidates[,]"120 thus, their right to expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) Based on the enumeration made on actsthat may be
penalized, it will be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed bythe
assailed letter regarding the "election propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect
common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay
centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size ofthe
poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no
political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the
size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair Election
Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or limitations set forth in
the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas and those
enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It will be presumed that the candidates and
parties caused the posting of campaign materials outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the Election Officer of the city or municipality where the
unlawful election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act, and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the
posting of campaign materials only apply to candidates and political parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political parties maintain
within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin regarding its posting. On the other hand, petitioners posted
the tarpaulin as part of their advocacy against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the Constitution, to some extent, set a limit on the right to
free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and time for political advertisements,
limiting political advertisements to COMELEC-designated space and time. This case was brought by representatives
of mass media and two candidates for office in the 1992 elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this case does
not apply as most of the petitioners were electoral candidates, unlike petitioners in the instant case. Moreover, the
subject matter of National Press Club, Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of
media such as newspapers, radio broadcasting, or television.130 Justice Feliciano emphasized that the provision did not
infringe upon the right of reporters or broadcasters to air their commentaries and opinions regarding the candidates,
their qualifications, and program for government. Compared to Sanidadwherein the columnists lost their ability to
give their commentary on the issues involving the plebiscite, National Press Clubdoes not involve the same
infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013 national elections
because of the COMELEC notice and letter. It was not merelya regulation on the campaigns of candidates vying for
public office. Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an"election
campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of
any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of
any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a
forthcoming electionor on attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election campaign or partisan political
activity contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the candidates and political parties themselves.
The focus of the definition is that the act must be "designed to promote the election or defeat of a particular candidate
or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or
criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental right to
freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation
pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter
ordering itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this court
has applied Article III, Section 4 of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of
Manila for the public meeting and assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s
permit for the use of streets and public places for purposes such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the Mayor’s refusal to issue a permit for the holding of
petitioner’s public meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for mandamus to
compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this case and, consequently, the assailed
resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against regulation. The primary and incidental burden on speech must
be weighed against a compelling state interest clearly allowed in the Constitution. The test depends on the relevant
theory of speech implicit in the kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of
speech and of the press provided in the US Constitution. The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it says: "No
law shall be passed abridging the freedom of speech." I would like to recommend to the Committee the change of the
word "speech" to EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech," because it is
more expansive, it has a wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none; the amendment
is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech, expression
or of the press . . . ."141 Speech may be said to be inextricably linked to freedom itself as "[t]he right to think is the
beginning of freedom, and speech must be protected from the government because speech is the beginning of
thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication exists when "(1) a speaker, seeking to
signal others, uses conventional actions because he orshe reasonably believes that such actions will be taken by the
audience in the manner intended; and (2) the audience so takes the actions."144 "[I]n communicative action[,] the
hearer may respond to the claims by . . . either accepting the speech act’s claims or opposing them with criticism or
requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as
‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of
expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct
enacted, and even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the religious sect
Jehovah’s Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and
recite the patriotic pledge.149 In his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of
communication and a valid form of expression.150 He adds that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the
individual the liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind.
The salute is a symbolic manner of communication that conveys its messageas clearly as the written or spoken word.
As a valid form of expression, it cannot be compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the
bizarre or eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular views as inthis case. The conscientious
objections of the petitioners, no less than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this court has
applied its precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the motion picture
"Kapit sa Patalim" as "For Adults Only." They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression."153 This court recognized that "[m]otion pictures are
important both as a medium for the communication of ideas and the expression of the artistic impulse."154 It adds that
"every writer,actor, or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that there were not enough votes for a ruling
of grave abuse of discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the expression. The
present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its
messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving vehicles
to read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser time to view the
content of a tarpaulin. The larger the fonts and images, the greater the probability that it will catch their attention and,
thus, the greater the possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary
person’s perspective, those who post their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the speakers, in this case petitioners, to
their cause is also part of the message. The effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger segments of the public may tend to be
more convinced of the point made by authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers might want to communicate. Rather than simply placing the
names and images of political candidates and an expression of support, larger spaces can allow for brief but
memorable presentations of the candidates’ platforms for governance. Larger spaces allow for more precise inceptions
of ideas, catalyze reactions to advocacies, and contribute more to a more educated and reasoned electorate. A more
educated electorate will increase the possibilities of both good governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates or the political parties, that speaks. Too
often, the terms of public discussion during elections are framed and kept hostage by brief and catchy but meaningless
sound bites extolling the character of the candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech, government should in fact encourage it.
Between the candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to avoid difficult
political standpoints and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of
expression.
First, this relates to the right ofthe people to participate in public affairs, including the right to criticize government
actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue
isa critical, and indeed defining, feature of a good polity."159 This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will beaffected by the decision."160It anchors
on the principle that the cornerstone of every democracy is that sovereignty resides in the people.161 To ensure order in
running the state’s affairs, sovereign powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes the right of the people to criticize acts
made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should thus be
protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a
full discussion of public affairs."163 This court has, thus, adopted the principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."164
Second, free speech should be encouraged under the concept of a market place of ideas. This theory was articulated by
Justice Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas
- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that
truth is the only ground upon which their wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new ones. This promotes both
stability and change where recurring points may crystallize and weak ones may develop. Of course, free speech is
more than the right to approve existing political beliefs and economic arrangements as it includes, "[t]o paraphrase
Justice Holmes, [the] freedom for the thought that we hate, no less than for the thought that agrees with us."168 In fact,
free speech may "best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard against any
curtailment of the people’s right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to
man's enjoyment of his life, to his happiness and to his full and complete fulfillment.Thru these freedoms the citizens
can participate not merely in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an] important
democratic role [in providing] forums for the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any] governmental interference."173 They also
"provide a buffer between individuals and the state - a free space for the development of individual personality,
distinct group identity, and dissident ideas - and a potential source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and shared values and ideals, to join together and forward
common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of democratic governance]."175 Federalist framers led by James Madison
were concerned about two potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized
or plundered by despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the
society against the injustice of the other part."178 We should strive to ensure that free speech is protected especially in
light of any potential oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent manifestations of
dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a menacing
flood of sullen anger behind the walls of restriction’"181 has been used to describe the effect of repressing nonviolent
outlets.182 In order to avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free expression and political participation"183 in that they can
"vote for candidates who share their views, petition their legislatures to [make or] change laws, . . . distribute literature
alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must,
thus, be protected as a peaceful means of achieving one’s goal, considering the possibility that repression of
nonviolent dissent may spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents argue that the
tarpaulinis election propaganda, being petitioners’ way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to
draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views and beliefs
about issues and candidates."188 They argue that the tarpaulin was their statement of approval and appreciation of the
named public officials’ act of voting against the RH Law, and their criticism toward those who voted in its favor.189 It
was "part of their advocacy campaign against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression
should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court discussed the
preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities, ofthe influential and powerful, and of
oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and political institutions; and such priority "gives these liberties
the sanctity and the sanction not permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice Barredo’s concurring and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy thrives
only where the power and right of the people toelect the men to whom they would entrust the privilege to run the
affairs of the state exist. In the language of the declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines is a republic because and solely because the
people in it can be governed only by officials whom they themselves have placed in office by their votes. And in it is
on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and peaceful assembly and
redress of grievances are being exercised in relation to suffrage or asa means to enjoy the inalienable right of the
qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be worthwhile, the
conduct of public affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power in our government must be ready to undergo exposure
any moment of the day or night, from January to December every year, as it is only in this way that he can rightfully
gain the confidence of the people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain periods of time. I consider the freedoms of
speech, press and peaceful assembly and redress of grievances, when exercised in the name of suffrage, as the very
means by which the right itself to vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself
would be next to useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of speech may be
subject to regulation:
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. 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. Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe
permissible scope of restrictions on various categories of speech. 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.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to speech "both intended and received
as a contribution to public deliberation about some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech has been defined as speech that does "no more than propose a
commercial transaction."202 The expression resulting from the content of the tarpaulin is, however, definitely political
speech. In Justice Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of
its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that
"[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue converted
the non-election issue into a live election one hence, Team Buhay and Team Patay and the plea to support one and
oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by
any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations implementing
Republic Act No. 9006 as an aid to interpret the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to
draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be deemed
narrowly tailored only in relation to the facts and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize the conduct of public men:
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 official dom. 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.206
Subsequent jurisprudence developed the right to petition the government for redress of grievances, allowing for
criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted every citizen’s
privilege to criticize his or her government, provided it is "specific and therefore constructive, reasoned or tempered,
and not a contemptuous condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters or circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente adds that he would "dislike very muchto see this decision
made the vehicle for the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be something worth hearing from the dissenter [and] [t]hat is to
ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their government contributes to every
society’s goal for development. It puts forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the COMELEC, to be a democracy-enhancing measure.216This
court mentioned how "discussion of public issues and debate on the qualifications of candidates in an election are
essential to the proper functioning of the government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of elections when the
free exercise thereof informs the people what the issues are, and who are supporting what issues."218 At the heart of
democracy is every advocate’s right to make known what the people need to know,219 while the meaningful exercise
of one’s right of suffrage includes the right of every voter to know what they need to know in order to make their
choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest
essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may
be curtailed is the dissemination of information to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and even
government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still subjectto
some restrictions. The degree of restriction may depend on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based on the viewpoint of the speaker or the subject of the
expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made
simply because petitioners failed to comply with the maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner regulation, it’s still unconstitutional for lack of a clear and
reasonable nexus with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless, the disposition
of this case will be the same. Generally, compared with other forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to
posters and tarpaulins that may affect the elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use their resources to be able to raise public issues that should
be tackled by the candidates as what has happened in this case. COMELEC’s discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily divorced
from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present danger
rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, 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 imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious and the degree
of imminence extremely high.’"230 "Only when the challenged act has overcome the clear and present danger rule will
it pass constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or
speech."232 In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v.
Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion only to determine the public places
that may be used for the procession ormeeting, but not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free speech and peaceful assembly are "not absolute for it may be
so regulated that it shall not beinjurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at specific hours.238 This court similarly discussed police power
in that the assailed rules carry outthe legislative policy that "aims to promote safe transit upon and avoid obstructions
on national roads, in the interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow which
include informing the licensing authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if there would be valid objections,
provided that the clear and present danger test is the standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as the
Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006 case
of Bayan v. Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply
regulates their time, place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be
heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from the
size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins are content-
neutral regulations as these "restrict the mannerby which speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is required for its validity,"250 and it is subject only
to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A content-neutral
government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial
governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the
incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of
that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners who are non-candidates. On the second requirement, not only
must the governmental interest be important or substantial, it must also be compelling as to justify the restrictions
made.
Compelling governmental interest would include constitutionally declared principles. We have held, for example, that
"the welfare of children and the State’s mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure equality of public
information campaigns among candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates with more money and/or with deep-
pocket supporters at an undue advantage against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen] to freely
express his choice and exercise his right of free speech."258 In any case, faced with both rights to freedom of speech
and equality, a prudent course would be to "try to resolve the tension in a way that protects the right of
participation."259
Second, the pertinent election lawsrelated to private property only require that the private property owner’s consent be
obtained when posting election propaganda in the property.260 This is consistent with the fundamental right against
deprivation of property without due process of law.261 The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective measures to minimize election
spending. Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’) size limitation
under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that provides
for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged and not curtailed. As petitioners pointed out,
the size limitation will not serve the objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the restriction,
but more so at the effects of such restriction, if implemented. The restriction must not be narrowly tailored to achieve
the purpose. It must be demonstrable. It must allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners’ message and violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when exercised to make more meaningful the equally important
right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral
regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given the stature of
petitioners and their message, there are indicators that this will cause a "chilling effect" on robust discussion during
elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the medium is
the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the materials on which
words were written down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals for the endorsement of their
electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins, posters,
or media advertisements are made ostensibly by "friends" but in reality are really paid for by the candidate or political
party. This skirts the constitutional value that provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us. In
such cases, it will simply be a matter for investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political candidate should not
be held hostage by the possibility of abuse by those seeking to be elected. It is true that there can be underhanded,
covert, or illicit dealings so as to hide the candidate’s real levels of expenditures. However, labelling all expressions of
private parties that tend to have an effect on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this evil, better and more effective
enforcement will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will spend their own resources
in order to lend support for the campaigns. This may be without agreement between the speaker and the candidate or
his or her political party. In lieu of donating funds to the campaign, they will instead use their resources directly in a
way that the candidate or political party would have doneso. This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political parties will carry in their
election posters or media ads. The message of petitioner, taken as a whole, is an advocacy of a social issue that it
deeply believes. Through rhetorical devices, it communicates the desire of Diocese that the positions of those who run
for a political position on this social issue be determinative of how the public will vote. It primarily advocates a stand
on a social issue; only secondarily — even almost incidentally — will cause the election or non-election of a
candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such devices as
sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate a greater purpose, often used for "political
and social criticism"269 "because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is
more thoroughly democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown
in this literary field, claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense
of the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses exaggeration, analogy, and
other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the Archbishop
of the Diocese of Bacolod have intended it to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the intention of those in the list. Furthermore, the
list of "Team Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z],
Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of censorship or subsequent
punishment that entails evaluation of the speaker’s viewpoint or the content of one’s speech. This is especially true
when the expression involved has political consequences. In this case, it hopes to affect the type of deliberation that
happens during elections. A becoming humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has
always been a libertarian virtue whose version is embedded in our Billof Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given us pause. The unforgiving but insistent
nuance that the majority surely and comfortably disregards provides us with the checks upon reality that may soon
evolve into creative solutions to grave social problems. This is the utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions which, taken
together with the guarantee of free expression, enhances each other’s value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that separate at the point of giving
priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows the government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically
subdued within society’s ideological ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to participate in the self
determination of one’s communities is not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination."275 In his view, any improvement "in the
normal course of events" within an unequal society, without subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not
taken in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series
of synthetic judgments. It stipulates the ability to determine one’s own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a human being who is capable of
being free with the others. And the problem of making possible such a harmony between every individual liberty and
the other is not that of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society in which man is
no longer enslaved by institutions which vitiate self-determination from the beginning. In other words, freedom is still
to be created even for the freest of the existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people —
"implies a necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on this basis, their evaluation must be the
result of autonomous thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by
those who determine the national and the individual interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use extralegal means if the legal
ones have proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he refers to as
"repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when taken together, produce bases for a system
of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that "public
discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection.285 He defined political speech as "both intended and
received as a contribution to public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair access to opportunity is
suggested to mean substantive equality and not mere formal equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for expression and some guarantee that
efforts to express views on matters of common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech with more speech."289 This view moves away
from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression
as the preferred strategy for addressing them."290 However, in some cases, the idea of more speech may not be
enough. Professor Laurence Tribe observed the need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only mean more speech from the few who are
dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the Commission on Elections."294 This court explained that
this provision only regulates the time and manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions mandating political equality:296 Article
IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that protect and enhance the right of
all the people to human dignity, reducesocial, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
(Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties
as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive expressive freedoms
that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or equality inthe ability of
citizens as speakers should not have a bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic
or redistributive reasons . . . [thus,] ideas are best left to a freely competitive ideological market."297This is consistent
with the libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity or
invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than affirmative language. It uses
‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution protects free speech per se, indifferent to
the types, status, or associations of its speakers.299 Pursuant to this, "government must leave speakers and listeners in
the private order to their own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech includes
"not only the right to express one’s views, but also other cognate rights relevant to the free communication [of] ideas,
not excluding the right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates,
education, means of transportation, health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure — the utmost ventilation of opinion of men and issues, through assembly, association
and organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will of
the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy such
that"courts, as a rule are wary to impose greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First Amendment which was designed to "secure the widest
possible dissemination of information from diverse and antagonistic sources" and "to assure unfettered interchange of
ideas for the bringing about of political and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best alternative to
censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if content-neutral) on expressive
liberty imposed in the name of ‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the
political arena."306 The majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can speak, which
takes out of his exclusive judgment the decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum of public
information and runs counter to our ‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of those without
funds in the first place . . . [and] even if one’s main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal intervention."309 According to Herbert
Alexander, "[t]o oppose limitations is not necessarily to argue that the sky’s the limit [because in] any campaign there
are saturation levels and a point where spending no longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality
and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration the effects it will have in a deliberative democracy.
Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of drowning out
the speech and the messages of those in the minority. In a sense, social inequality does have its effect on the exercise
and effect of the guarantee of free speech. Those who have more will have better access to media that reaches a wider
audience than those who have less. Those who espouse the more popular ideas will have better reception than the
subversive and the dissenters of society.To be really heard and understood, the marginalized view normally undergoes
its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This
view, thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to some
expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to time, place, and manner. This is the effect of our
rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not
speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election
paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not
candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is
declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored onthe
basis of its content. For this purpose, it will notmatter whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin
tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins without any relation to the distance from the intended
average audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to suffrage,312 the present
case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election
propaganda by applying such regulations to private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents agree that the tarpaulin in question
belongs to petitioners. Respondents have also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that
it encompasses even the citizen’s private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property without due process of law. This court
explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and
the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391,
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person’s
acquisitions without control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except inthe common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front dooror on a
post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation, may do.319 Respondents ordered
petitioners, who are private citizens, to remove the tarpaulin from their own property. The absurdity of the situation is
in itself an indication of the unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no expression when there is
no place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the
present case also reaches out to infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into
petitioners’ property rights. Election laws and regulations must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in
private property without the consent of the owners of such private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private property is an impermissible encroachments on the right to
property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and letter violated
the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. Noreligious test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise and
enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act
immune from any secular regulation.324 The religious also have a secular existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious
expression. This notwithstanding petitioners’ claim that "the views and position of the petitioners, the Bishop and the
Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a secular character that may, from the point of
view of others who do not share the same faith or may not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu326 in
claiming that the court "emphatically" held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s
Witnesses from participating in the flag ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a balance between the assertion of a religious practice and the
compelling necessities of a secular command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion
under certain circumstances. Accommodations are government policies that take religion specifically intoaccount not
to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which
voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement
with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine of the
Catholic church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. On the contrary,
the tarpaulin clearly refers to candidates classified under "Team Patay" and "Team Buhay" according to their
respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion in the Philippines as regards the RH
Law does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with
political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations Commission333 cited by
petitioners finds no application in the present case. The posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and other activities withattached
religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case. However, it
was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates
and their registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running for public office.Their
message may be construed generalizations of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue — and a
complex piece of legislation at that — can easily be interpreted as anattempt to stereo type the candidates and party-
list organizations. Not all may agree to the way their thoughts were expressed, as in fact there are other Catholic
dioceses that chose not to follow the example of petitioners.
Some may have thought that there should be more room to consider being more broad-minded and non-judgmental.
Some may have expected that the authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a
detailed code that prescribes good conduct. It provides space for all to be guided by their conscience, not only in the
act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be
expressed by dominant institutions, even religious ones. That they made their point dramatically and in a large way
does not necessarily mean that their statements are true, or that they have basis, or that they have been expressed in
good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by
our fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very
real secular consequences. Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not speechby candidates or political parties to entice votes. It is a portion
of the electorate telling candidates the conditions for their election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental
and primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made
permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated February
27, 2013 is declared unconstitutional.
SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice
WE CONCUR:

G.R. No. L-7491 August 8, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GO PIN, defendant-appellant.
J. Perez Cardenas and Castaño and Ampil for defendant.
Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avanceña for appellee.
MONTEMAYOR, J.:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised Penal Code for
having exhibited in the City of Manila at the Globe Arcade, a recreation center, a large number of one-real 16-
millimeter films about 100 feet in length each, which are allegedly indecent and/or immoral. At first, he pleaded not
guilty of the information but later was allowed by the court to change his plea to that of guilty which he did. Not
content with the plea of guilty the trial court had the films in question projected and were viewed by it in order to
evaluate the same from the standpoint of decency and morality. Thereafter, and considering the plea of guilty entered
by the accused, and the fact that after viewing the films the trial court noted only a slight degree of obscenity,
indecency and immorality in them, it sentenced the appellant to 6 months and 1 day of prision correcciconal and to
pay a fine of P300, with subsidiary imprisonment in case of insolvency, and to pay the costs. He is now appealing
from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case, particularly the slight
degree of obscenity, indecency and immorality noted by the court in the films, the prison sentence should be
eliminated from the penalty imposed. His counsel brings to our attention some authorities to the effect that paintings
and pictures of women in the nude, including sculptures of that kind are not offensive because they are made and
presented for the sake of art. We agree with counsel for appellant in part. If such pictures, sculptures and paintings are
shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art,
there would be no offense committed. However, the pictures here in question were used not exactly for art's sake but
rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being
commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have
been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who
went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but
rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including
the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this recommendation and said official
recommendation that "considering that the accused Go Pin is an alien who is supposed to maintain a high degree of
morality while he is in the Philippines", and "considering that he engaged in a very nefarious trade, which degenerates
the moral character of our youth, who are usually the regular customers of his trade", he recommended that appellant
be sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this recommendation, the trial court as
already said, probably considering its opinion that the pictures were not so obscene, indecent and immoral but only
slightly so, gave appellant only 6 months and 1 day of prision correccionalin addition to P300 fine.
The penalty imposed by the trial court is within the range provided by Article 201 of the Revised Code. We are
satisfied that in imposing the penalty the trial court made use of its sound discretion, and we find no reason for
modifying the said sentence. The Solicitor General in his brief even urges that we recommend to the proper authorities
that deportation proceedings be instituted against appellant as an undesirable alien. The trial court could have done
this but did not do so, believing perhaps that it was warranted. We repeat that we do not feel justified in interfering
with the discretion of the trial court in the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
Bengzon, Acting C. J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J. B. L.,
JJ.,concur.

==========================================================

G.R. No. L-7295 June 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-appellants.
Augusto Revilla for appellant Jose Fajardo.
W. M. Bayhon for appellant Marina Padan y Alova.
Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee.
MONTEMAYOR, J.:
In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes
were charged with a violation of Article 201 of the Revised Penal Code, said to have been committed as follows:
 That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused
conspiring and confederating together and mutually helping one another, did then and there willfully,
unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and
Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being
then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and
feloniously hired their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers
or exhibitionists to perform and in fact performed sexual intercourse in the presence of many spectators,
thereby exhibiting or performing highly immoral and indecent acts or shows thereat.
Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte
and counsel de oficio, asked for permission to withdraw her former plea of not guilty, which was granted, and upon
rearraignment, she pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was found guilty
as charged and sentenced to six months and one day of prision correccional and a fine of P200, with subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties
prescribed by the law, and to pay the proportionate costs. After trial of the three remaining accused, they were all
found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to not less than six months and one day
of prision correccional and not more than one year, one month and eleven days of prision correccional, to pay a fine
of P500, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to
pay the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and ten days of prision
correccional and not more than one year eight months and twenty days, also of prision correccional, to pay a fine of
P1,000, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty and to
pay the proportionate costs. The army steel bed, the army woolen blanket, the pillow, the ladies' panties, and the men's
underwear, described in Exhibit C, were declared confiscated.
The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to
file their briefs within the period prescribed by law and their appeal was dismissed by resolution of this Court of
November 25, 1955, and the decision as to them became final and executory on January 7, 1956, as appears from the
entry of judgment.
Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she
merely urges the reduction of the penalty by eliminating the prison sentence. We do not feel warranted in interfering
with the exercise of discretion in this matter, made by the lower court presided by Judge Magno S. Gatmaitan.
According to his decision of October 12, 1953, in imposing the sentence, he already considered Marina's plea of
leniency, and so despite the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence
of six months and one day, his honor reduced the fine to only P200.
We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time
that the courts in this jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against
morals and decency of this kind. We have had occasion to consider offenses like the exhibition of still moving pictures
of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might
yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might
find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in
tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming
feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an
offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting
influence specially on the youth of the land. We repeat that because of all this, the penalty imposed by the trial court
on Marina, despite her plea of guilty, is neither excessive nor unreasonable.
Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense
charged, he in its that he was not the manager or the person incharge of the show or proceedings on the night of
September 13, 1953; that his participation, if he participate at all, was to play the role of an innocent bystander, but
that because of his popularity in the neighborhood, being popularly known as a "siga-siga" character, he was requested
by the spectators to select the man and the woman to engage or indulge in the actual act of coitus before the
spectators; that after making the selection, he did not even care to witness the act but left the scene and returned to it
only when he heard a commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the manager and one in charge of the show is however ample,
even conclusive. We have carefully examined such evidence, and we are satisfied that they fully support the findings
of the trial court. Such facts may be briefly stated as follows: At the corner of Morga Extension and Camba Extension,
Tondo, Manila, was a one story building which judging from the picture exhibited is nothing but a shed, with a floor
space of eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must have been
placed in the center and on two sides were built benches in tiers, so that the spectators seated on them could look
down and see the game. On September 13, 1953, however, the building was used for a different purpose. It was to be
the scene of what was said to be an exhibition of human "fighting fish", the actual act of coitus or copulation. It must
have been advertised by word of mouth; tickets therefor were sold at P3 each, and the show was supposed to begin at
8:00 o'clock in the evening. About that time of the night, there was already a crowd around the building, but the
people were not admitted into it until about an hour later, and the show did not begin until about 9:15. The Manila
Police Department must have gotten wind of the affair; it bought tickets and provided several of its members who
later attended the show, but in plain clothes, and after the show conducted a raid and made arrests. At the trial, said
policemen testified as to what actually took place inside the building. About two civilians who attended the affair gave
testimony as to what they saw.
The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected
tickets. In all, there were about ninety paying customers, while about sixteen were allowed to enter free, presumably
friends of the management. Jose Fajardo y Garcia was clearly the manager of the show. He was at the door to see to it
that the customers either were provided with tickets or paid P3.00 entrance fee. He even asked them from whom they
had bought the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an army
blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded inside that small
building, the show started. Fajardo evidently to arouse more interest among the customers, asked them to select
among two girls presented who was to be one of the principal actors. By pointing to or holding his hand over the head
of each of the two women one after the other, and judging by the shouts of approval emitted by the spectators, he
decided that defendant Marina Padan was the subject of popular approval, and he selected her. After her selection, the
other woman named Concha, left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner.
Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed. When completely naked, they
turned around to exhibit their bodies to the spectators. Then they indulged in lascivious acts, consisting of petting,
kissing, and touching the private parts of each other. When sufficiently aroused, they lay on the bed and proceeded to
consummate the act of coitus in three different positions which we deem unnecessary to describe. The four or five
witnesses who testified for the Government when asked about their reaction to what they saw, frankly admitted that
they were excited beyond description. Then the police who were among the spectators and who were previously
provided with a search warrant made the raid, arrested the four defendants herein, and took pictures of Marina and
Cosme still naked and of the army bed, which pictures were presented as exhibits during the trial. From all this, there
can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in charge of the show. Besides,
as found by the trial court and as shown by some of the tickets collected from the spectators, submitted as exhibits,
said tickets while bearing on one side printed matter regarding an excursion to Balara to be held on August 30, 1953
from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the following typewritten form,
reading:
P3.00 Admit one
PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.
Time : 8:00 o'clock sharp,
and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his
name. Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the
four, for he was the one who conducted the show and presumably derived the most profit or gain from the same.
As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the
same is correct, except the minimum thereof which is beyond the legal range, and which should be reduced from one
year, one month, and ten days of prision correccional to only six months of arresto mayor.
With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby
affirmed, with costs against both.
Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,concur.

===============================================================
 United States Supreme Court

MILLER v. CALIFORNIA, (1973)

No. 70-73
Argued: November 7, 1972 Decided: June 21, 1973
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that
approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts,383 U.S. 413,
418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary
community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity
criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A
work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex;
portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as
a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary
community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra,
at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by
ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.
3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the
standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34.
Vacated and remanded. [413 U.S. 15, 16]

BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a dissenting opinion, in
which STEWART and MARSHALL, JJ., joined, post, p. 47.

Burton Marks reargued the cause and filed a brief for appellant.

Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hicks. *

[ Footnote * ] Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and Joel M.
Gora filed a brief for the American Civil Liberties Union of Southern California et al. as amici curiae urging
reversal.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a re-examination of
standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity
problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called
"adult" material. After a jury trial, he was convicted of violating California Penal Code 311.2 (a), a misdemeanor,
by knowingly distributing obscene matter, 1 [413 U.S. 15, 17] and the Appellate Department, Superior Court of
California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was
specifically [413 U.S. 15, 18] based on his conduct in causing five unsolicited advertising brochures to be sent
through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was
opened by the manager of the restaurant and his mother. They had not requested the brochures; they
complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An
Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some
descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and
women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently
displayed.

I
This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit
materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any
desire to receive such materials. This Court has recognized that the States have a legitimate interest in
prohibiting dissemination or exhibition of obscene material 2 [413 U.S. 15, 19] when the mode of dissemination
carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to
juveniles. Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S. 629, 637 -643 (1968);
Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, 386 U.S. 767, 769 (1967); Jacobellis v.
Ohio, 378 U.S. 184, 195 (1964). See Rabe v. Washington, 405 U.S. 313, 317 (1972) (BURGER, C. J., concurring);
United States v. Reidel, 402 U.S. 351, 360 -362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 502(1952); Breard v. Alexandria, 341 U.S. 622, 644 -645 (1951); Kovacs v. Cooper, 336 U.S.
77, 88 -89 (1949); Prince v. Massachusetts, 321 U.S. 158, 169 -170 (1944). Cf. Butler v. Michigan, 352 U.S. 380,
382 -383 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464 -465 (1952). It is in this context that we are
called [413 U.S. 15, 20] on to define the standards which must be used to identify obscene material that a State
may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth
Amendment.

The dissent of MR. JUSTICE BRENNAN review the background of the obscenity problem, but since the Court
now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of
the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United
States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of
"obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim
that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

"All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinion - have the full protection of the [First Amendment] guaranties,
unless excludable because they encroach upon the limited area of more important interests. But implicit in the
history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . .
This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572:
"`. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . It
has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social [413 U.S. 15, 21] value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. . . .' [Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of constitutionally protected speech or press." 354 U.S., at 484 -485
(footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from the Roth
concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality
held that under the Roth definition.

"as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant
theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to the description or representation of sexual
matters; and (c) the material is utterly without redeeming social value." Id., at 418.
The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by
MR. JUSTICE WHITE'S dissent, id., at 460-462, was further underscored when the Memoirs plurality went on
to state:

"The Supreme Judicial Court erred in holding that a book need not be `unqualifiedly worthless before it can be
deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value."
Id., at 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required [413
U.S. 15, 22] that to prove obscenity it must be affirmatively established that the material is "utterly without
redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a
drastically altered test that called on the prosecution to prove a negative, i. e., that the material was "utterly
without redeeming social value" - a burden virtually impossible to discharge under our criminal standards of
proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value"
test had any meaning at all. See Memoirs v. Massachusetts, id., at 459 (Harlan, J., dissenting). See also id., at 461
(WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579-581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to
agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under
the States' police power. See, e. g., Redrup v. New York, 386 U.S., at 770 -771. We have seen "a variety of views
among the members of the Court unmatched in any other course of constitutional adjudication." Interstate
Circuit, Inc. v. Dallas, 390 U.S., at 704 -705 (Harlan, J., concurring and dissenting) (footnote omitted). 3 This is
not remarkable, for in the area [413 U.S. 15, 23] of freedom of speech and press the courts must always remain
sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an
area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code 311 approximately incorporates
the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its
author, 4 and no Member of the Court today supports the Memoirs formulation.

II
This much has been categorically settled by the Court, that obscene material is unprotected by the First
Amendment. Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S., at 354 ; Roth v. United
States, supra, at 485. 5 "The First and Fourteenth Amendments have never been treated as absolutes [footnote
omitted]." Breard v. Alexandria, 341 U.S., at 642 , and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43,
47 -50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502 . We acknowledge, however, the inherent dangers
of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must
be [413 U.S. 15, 24] carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now
confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct
must be specifically defined by the applicable state law, as written or authoritatively construed. 6 A state offense
must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political,
or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary
community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v.
Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a
constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, [413 U.S.
15, 25] 383 U.S., at 419 ; that concept has never commanded the adherence of more than three Justices at one
time. 7 See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the
First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected
by the ultimate power of appellate courts to conduct an independent review of constitutional claims when
necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J.,
dissenting); Jacobellis v. Ohio, 378 U.S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S.
254, 284 -285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their
concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could
define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or
simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition
of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public
accommodation any more than live sex and nudity can [413 U.S. 15, 26] be exhibited or sold without limit in
such public places. 8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must
have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v.
Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v. Alabama, 310 U.S. 88, 101 -102
(1940). For example, medical books for the education of physicians and related personnel necessarily use graphic
illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law,
we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence,
presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other
offenses against society and its individual members. 9

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States,
supra; Jacobellis v. Ohio, supra; Ginzburg v. United [413 U.S. 15, 27] States, 383 U.S. 463 (1966), Mishkin v. New
York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now
maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene
material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p.
73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of
unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to
juveniles, although he gives no indication of how the division between protected and nonprotected materials may
be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting
adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a
willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene
materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically
defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will
provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.
See Roth v. United States, supra, at 491-492. Cf. Ginsberg v. New York, 390 U.S., at 643 . 10 If [413 U.S. 15,
28] the inability to define regulated materials with ultimate, god-like precision altogether removes the power of
the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the
juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR.
JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U.S. 363, 379 -380 (1971)
(Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and
DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, J., joined by DOUGLAS, J., concurring);
Roth, supra, at 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now
stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that
"[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon
this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification
to the members of this Court." Paris Adult [413 U.S. 15, 29] Theatre I v. Slaton, post, at 92, 93. He also notes,
and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal
courts . . . ." "The problem is . . . that one cannot say with certainty that material is obscene until at least five
members of this Court, applying inevitably obscure standards, have pronounced it so." Id., at 93, 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for
testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was
decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography
from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New
York, 386 U.S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a
convenient "institutional" rationale - an absolutist, "anything goes" view of the First Amendment - because it will
lighten our burdens. 11 "Such an abnegation of judicial supervision in this field would be inconsistent with our
duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 187-188 (opinion of BRENNAN, J.).
Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power
reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from
before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482-485. "Our duty
admits of no `substitute for facing up[413 U.S. 15, 30] to the tough individual problems of constitutional
judgment involved in every obscenity case.' [Roth v. United States, supra, at 498]; see Manual Enterprises, Inc. v.
Day, 370 U.S. 478, 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 188 (opinion of
BRENNAN, J.).

III
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not
vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform
national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are
essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect
that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite
consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary
community standards" would consider certain materials "prurient," it would be unrealistic to require that the
answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate
factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their
community, guided always by limiting instructions on the law. To require a State to structure obscenity
proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the
tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality
of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling
case [413 U.S. 15, 31] law. The jury, however, was explicitly instructed that, in determining whether the
"dominant theme of the material as a whole . . . appeals to the prurient interest" and in determining whether the
material "goes substantially beyond customary limits of candor and affronts contemporary community standards
of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in
making the factual determination of obscenity were those of the State of California, not some hypothetical
standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the
State's expert on community standards 12 or to the instructions of the trial judge on "statewide" standards. On
appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time
contended that application of state, rather than national, standards violated the First and Fourteenth
Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's
charge that the jury consider state community standards, were constitutional errors. Nothing in the First
Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when
attempting to determine whether certain materials are obscene as a matter[413 U.S. 15, 32] of fact. Mr. Chief
Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200:

"It is my belief that when the Court said in Roth that obscenity is to be defined by reference to `community
standards,' it meant community standards - not a national standard, as is sometimes argued. I believe that there
is no provable `national standard' . . . . At all events, this Court has not been able to enunciate one, and it would
be unreasonable to expect local courts to divine one."
It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of
Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. 13 [413
U.S. 15, 33] See Hoyt v. Minnesota, 399 U.S. 524 -525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398
U.S. 434 (1970) (BURGER, C. J., dissenting); id., at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U.S.
319 (1970) (BURGER, C. J., dissenting); id., at 319-320 (Harlan, J., dissenting); United States v. Groner, 479
F.2d, at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre
Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S., at 458 (Harlan, J., dissenting); Jacobellis
v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-506 (Harlan, J.,
concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not
to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383
U.S., at 508-509, the primary concern with requiring a jury to apply the standard of "the average person, applying
contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it
will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person - or
indeed a totally insensitive one. See Roth v. United States, supra, at 489. Cf. the now discredited test in Regina v.
Hicklin, 1868. L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference
to "contemporary [413 U.S. 15, 34] standards of the State of California" serves this protective purpose and is
constitutionally adequate. 14

IV
The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of
ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the
First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great
guarantees of free speech and free press . . . ." Breard v. Alexandria, 341 U.S., at 645 . The First Amendment
protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of
whether the government or a majority of the people approve of the ideas these works represent. "The protection
given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of [413
U.S. 15, 35] political and social changes desired by the people," Roth v. United States, supra, at 484 (emphasis
added). See Kois v. Wisconsin,408 U.S., at 230 -232; Thornhill v. Alabama, 310 U.S., at 101 -102. But the public
portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different
matter. 15

There is no evidence, empirical or historical, that the stern 19th century American censorship of public
distribution and display of material relating to sex, see Roth v. United States, supra, at 482-485, in any way
limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is
beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily
vigorous period," not just in economics and politics, but in belles lettres and in "the outlying fields of social and
political philosophies." 16 We do not see the harsh hand [413 U.S. 15, 36] of censorship of ideas - good or bad,
sound or unsound - and "repression" of political liberty lurking in every state regulation of commercial
exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be
forestalled." Paris Adult Theatre I v. Slaton, post, at 110 (BRENNAN, J., dissenting). These doleful anticipations
assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial
exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it
unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all
the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with
such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S., at 690 . 17 One can concede that the
"sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject
long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive
"hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin
because it is a derivative of medicinal morphine.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold
that such material can be regulated by the States, subject to the specific safeguards enunciated [413 U.S. 15,
37] above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that
obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at
230, and Roth v. United States, supra, at 489, not "national standards." The judgment of the Appellate
Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for
further proceedings not inconsistent with the First Amendment standards established by this opinion. See
United States v. 12 200-ft. Reels of Film, post, at 130 n. 7.

Vacated and remanded.

Footnotes
[ Footnote 1 ] At the time of the commission of the alleged offense, which was prior to June 25, 1969, 311.2 (a) and
311 of the California Penal Code read in relevant part: " 311.2 Sending or bringing into state for sale or
distribution; printing, exhibiting, distributing or possessing within state "(a) Every person who knowingly: sends
or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state
prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to
distribute [413 U.S. 15, 17] or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . .
." " 311. Definitions "As used in this chapter: "(a) `Obscene' means that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a
shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of
candor in description or representation of such matters and is matter which is utterly without redeeming social
importance. "(b) `Matter' means any book, magazine, newspaper, or other printed or written material or any
picture, drawing, photograph, motion picture, or other pictorial representation or any statute or other figure, or
any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment,
machines or materials. "(c) `Person' means any individual, partnership, firm, association, corporation, or other
legal entity. "(d) `Distribute' means to transfer possession of, whether with or without consideration. "(e)
`Knowingly' means having knowledge that the matter is obscene." Section 311 (e) of the California Penal Code,
supra, was amended on June 25, 1969, to read as follows: "(e) `Knowingly' means being aware of the character of
the matter." Cal. Amended Stats. 1969, c. 249, 1, p. 598. Despite appellant's contentions to the contrary, the
record indicates that the new 311 (e) was not applied ex post facto to his case, but only the old 311 (e) as
construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal. App.
2d 941, 948-950, 63 Cal. Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise,
242 Cal. App. 2d 905, 914, 51 Cal. Rptr. 815, 821 (App. Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of
Columbia, 378 U.S. 347 (1964). Nor did 311.2, supra, as applied, create any "direct, immediate burden on the
performance [413 U.S. 15, 18] of the postal functions," or infringe on congressional commerce powers under Art.
I, 8, cl. 3. Roth v. United States, 354 U.S. 476, 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U.S. 88,
96 (1945). See also Mishkin v. New York, 383 U.S. 502, 506 (1966); Smith v. California, 361 U.S. 147, 150 -152
(1959).

[ Footnote 2 ] This Court has defined "obscene material" as "material which deals with sex in a manner appealing
to prurient interest," Roth v. United States, supra, at 487, but the Roth definition does not reflect the precise
meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus, ob, to,
plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary (Unabridged 1969)
as "1a: disgusting [413 U.S. 15, 19] to the senses . . . b: grossly repugnant to the generally accepted notions of
what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle." The Oxford
English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement:
disgusting, repulsive, filthy, foul, abominable, loathsome." The material we are discussing in this case is more
accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne,
harlot, and graphos, writing). The word now means "1: a description of prostitutes or prostitution 2: a depiction
(as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual
excitement." Webster's Third New International Dictionary, supra. Pornographic material which is obscene
forms a sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in
our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial
meaning which derives from the Roth case, i. e., obscene material "which deals with sex." Roth, supra, at 487.
See also ALI Model Penal Code 251.4 (l) "Obscene Defined." (Official Draft 1962.)

[ Footnote 3 ] In the absence of a majority view, this Court was compelled to embark on the practice of summarily
reversing convictions for the dissemination of materials that at least five members of the Court, applying their
separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U.S. 767 (1967). Thirty-
one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has
ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. 434 -435 (1970) (dissenting
opinions of BURGER, C. J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable
board of censorship for the 50 States, subjectively judging each piece of material brought before us.

[ Footnote 4 ] See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p.
73.

[ Footnote 5 ] As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U.S. 184, 200(1964): "For
all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we
should try to live with it - at least until a more satisfactory definition is evolved. No government - be it federal,
state, or local - should be forced to choose between repressing all material, including that within the realm of
decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of
reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule."

[ Footnote 6 ] See, e. g., Oregon Laws 1971, c. 743, Art. 29, 255-262, and Hawaii Penal Code, Tit. 37, 1210-1216,
1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at depiction of
defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this
respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of
them in all other respects nor as establishing their limits as the extent of state power. We do not hold, as MR.
JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other
existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft.
Reels of Film, post, at 130 n. 7.

[ Footnote 7 ] "A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise
obscene publication . . . ." Kois v. Wisconsin, 408 U.S. 229, 231 (1972). See Memoirs v. Massachusetts, 383 U.S.
413, 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of
"social importance." See id., at 462 (WHITE, J., dissenting).
[ Footnote 8 ] Although we are not presented here with the problem of regulating lewd public conduct itself, the
States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of
the same behavior. In United States v. O'Brien, 391 U.S. 367, 377 (1968), a case not dealing with obscenity, the
Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be
"sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest." See California v.
LaRue, 409 U.S. 109, 117 -118 (1972).

[ Footnote 9 ] The mere fact juries may reach different conclusions as to the same material does not mean that
constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, "it is
common experience that different juries may reach different results under any criminal statute. That is one of the
consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U.S. 486, 499 -500."

[ Footnote 10 ] As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra, at 491-492:
"Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This
Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due
process. `. . . [T]he Constitution does not require impossible standards'; all that is required is that the [413 U.S.
15, 28] language `conveys sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices. . . .' United States v. Petrillo, 332 U.S. 1, 7 -8. These words, applied according to the
proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and
mark `. . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . . . That there may
be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls
is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .' Id., at 7. See also
United States v. Harriss, 347 U.S. 612, 624 , n. 15; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 ;
United States v. Ragen, 314 U.S. 513, 523 -524; United States v. Wurzbach, 280 U.S. 396; Hygrade Provision Co. v.
Sherman, 266 U.S. 497 ; Fox v. Washington, 236 U.S. 273 ; Nash v. United States, 229 U.S. 373 ."

[ Footnote 11 ] We must note, in addition, that any assumption concerning the relative burdens of the past and
the probable burden under the standards now adopted is pure speculation.

[ Footnote 12 ] The record simply does not support appellant's contention, belatedly raised on appeal, that the
State's expert was unqualified to give evidence on California "community standards." The expert, a police officer
with many years of specialization in obscenity offenses, had conducted an extensive statewide survey and had
given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly
not constitutional error. Cf. United States v. Augenblick, 393 U.S. 348, 356 (1969).

[ Footnote 13 ] In Jacobellis v. Ohio, 378 U.S. 184 (1964), two Justices argued that application of "local"
community standards would run the risk of preventing dissemination of materials in some places because sellers
would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id., at 193-
195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily
implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be
unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression
seems at least as great in the application of a single nationwide standard as in allowing distribution in
accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354
U.S., at 506 . Appellant also argues that adherence to a "national standard" is necessary "in order to avoid
unconscionable burdens on the free flow of interstate commerce." As noted supra, at 18 n. 1, the application of
domestic state police powers in this case did not intrude on any congressional powers under Art. I, 8, cl. 3, for
there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would
appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its
traditional local power to protect the [413 U.S. 15, 33] general welfare of its population despite some possible
incidental effect on the flow of such materials across state lines. See, e. g., Head v. New Mexico Board, 374 U.S.
424 (1963); Huron Portland Cement Co. v. Detroit, 362 U.S. 440(1960); Breard v. Alexandria, 341 U.S. 622 (1951);
H. P. Hood & Sons v. Du Mond, 336 U.S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Baldwin
v. G. A. F. Seelig, Inc., 294 U.S. 511(1935); Sligh v. Kirkwood, 237 U.S. 52 (1915).

[ Footnote 14 ] Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a
Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but
apparently alleging exposures at a different time in a different setting. Appellant argues that once material has
been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be
obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better
regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below.
Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the
question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from
the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was
based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law,
evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the
California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal.
See Mishkin v. New York, 383 U.S. 502, 512 -514 (1966).

[ Footnote 15 ] In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly engaged in the
commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the
State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to
us, and that is all we need to decide." Roth v. United States, supra, at 496 (concurring opinion).

[ Footnote 16 ] See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of
the 19th century, Parrington observed "A new age had come and other dreams - the age and the dreams of a
middle-class sovereignty . . . . From the crude and vast romanticisms of that vigorous sovereignty emerged
eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if
possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War."
Id., at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233
(6th ed. 1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed. 1963) (articles of
Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and
Thought in Modern America 337-386 (1952).

[ Footnote 17 ] "[W]e have indicated . . . that because of its strong and abiding interest in youth, a State may
regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a
State clearly could not regulate as to adults. Ginsberg v. New York, . . . [ 390 U.S. 629(1968)]." Interstate Circuit,
Inc. v. Dallas, 390 U.S. 676, 690 (1968) (footnote omitted).

MR. JUSTICE DOUGLAS, dissenting.

 I
Today we leave open the way for California 1 to send a man to prison for distributing brochures that advertise
books and a movie under freshly written standards defining obscenity which until today's decision were never
the part of any law.

The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U.S. 476 ,
it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id.,
at 487. Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming [413
U.S. 15, 38] social importance." Id., at 484. The presence of a "prurient interest" was to be determined by
"contemporary community standards." Id., at 489. That test, it has been said, could not be determined by one
standard here and another standard there, Jacobellis v. Ohio, 378 U.S. 184, 194 , but "on the basis of a national
standard." Id., at 195. My Brother STEWART in Jacobellis commented that the difficulty of the Court in giving
content to obscenity was that it was "faced with the task of trying to define what may be indefinable." Id., at 197.

In Memoirs v. Massachusetts, 383 U.S. 413, 418 , the Roth test was elaborated to read as follows: "[T]hree
elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole
appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary
community standards relating to the description or representation of sexual matters; and (c) the material is
utterly without redeeming social value."

In Ginzburg v. United States, 383 U.S. 463 , a publisher was sent to prison, not for the kind of books and
periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was
said to permeate the advertisements. Id., at 468. The Court said, "Where the purveyor's sole emphasis is on the
sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity." Id.,
at 470. As Mr. Justice Black said in dissent, ". . . Ginzburg . . . is now finally and authoritatively condemned to
serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could
possibly have known to be criminal." Id., at 476. That observation by Mr. Justice Black is underlined by the fact
that the Ginzburg decision was five to four. [413 U.S. 15, 39]

A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641 , where the Court held that "it was
not irrational for the legislature to find that exposure to material condemned by the statute is harmful to
minors."

But even those members of this Court who had created the new and changing standards of "obscenity" could not
agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that
seemed to pass constitutional muster under the several constitutional tests which had been formulated. See
Redrup v. New York, 386 U.S. 767 . Some condemn it if its "dominant tendency might be to `deprave or corrupt' a
reader." 2 Others look not to the content of the book but to whether it is advertised "`to appeal to the erotic
interests of customers.' " 3 Some condemn only "hardcore pornography"; but even then a true definition is
lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know
it when I see it." 4

Today we would add a new three-pronged test:

"(a) whether `the average person, applying contemporary community standards' would find that the work, taken
as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."
Those are the standards we ourselves have written into the Constitution. 5 Yet how under these vague tests
can [413 U.S. 15, 40] we sustain convictions for the sale of an article prior to the time when some court has
declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new
definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal
with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First
Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other
occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time
the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers,
magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene."
The Court is at large because we deal with tastes and standards of literature. What shocks me may [413 U.S. 15,
41] be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may
reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted,
should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If
a constitutional amendment authorized censorship, the censor would probably be an administrative agency.
Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature.
Under that regime a publisher would know when he was on dangerous ground. Under the present regime -
whether the old standards or the new ones are used - the criminal law becomes a trap. A brand new test would
put a publisher behind bars under a new law improvised by the courts after the publication. That was done in
Ginzburg and has all the evils of an ex post facto law.

My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should
be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have
fashioned. As Mr. Justice Harlan has said:

"The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions
since Roth which have held particular material obscene or not obscene would find himself in utter
bewilderment." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 707 .
In Bouie v. City of Columbia, 378 U.S. 347 , we upset a conviction for remaining on property after being asked to
leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received
no "fair warning, at the time of their conduct" [413 U.S. 15, 42] while on the property "that the act for which they
now stand convicted was rendered criminal" by the state statute. Id., at 355. The same requirement of "fair
warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves
rights earnestly urged as being protected by the First Amendment. In any case - certainly when constitutional
rights are concerned - we should not allow men to go to prison or be fined when they had no "fair warning" that
what they did was criminal conduct.

II
If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review
of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or
film, then a vague law has been made specific. There would remain the underlying question whether the First
Amendment allows an implied exception in the case of obscenity. I do not think it does 6 and my views [413 U.S.
15, 43] on the issue have been stated over and over again. 7 But at least a criminal prosecution brought at that
juncture would not violate the time-honored void-for-vagueness test. 8

No such protective procedure has been designed by California in this case. Obscenity - which even we cannot
define with precision - is a hodge-podge. To send [413 U.S. 15, 44] men to jail for violating standards they cannot
understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

III
While the right to know is the corollary of the right to speak or publish, no one can be forced by government to
listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v.
Pollak, 343 U.S. 451, 467 , where I protested against making streetcar passengers a "captive" audience. There is no
"captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who
enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to
frequent those places; and it is only state or governmental action against which the First Amendment, applicable
to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are "offensive" to some people
puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal
or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a
condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger."
Terminiello v. Chicago, 337 U.S. 1, 4 . The idea that the First Amendment permits punishment for ideas that are
"offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or
literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical
break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for [413 U.S. 15,
45] dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to
"staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of
government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the
First Amendment. 9 As is intimated by the Court's opinion, the materials before us may be garbage. But so is
much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First
Amendment - and solely because of it - speakers and publishers have not been threatened or subdued because
their thoughts and ideas may be "offensive" to some.

The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U.S. 611 , we
had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and
conduct themselves "in a manner annoying to persons [413 U.S. 15, 46] passing by." We struck it down, saying:
"If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to
annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is
unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard,
and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.

"Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it
requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in
the sense that no standard of conduct is specified at all." Id., at 614.
How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to
punish people who publish materials "offensive" to some people is difficult to square with constitutional
requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving
the end. There are societies where religion and mathematics are the only free segments. It would be a dark day
for America if that were our destiny. But the people can make it such if they choose to write obscenity into the
Constitution and define it.

We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think
we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let
the people debate and decide by a constitutional amendment what they want to ban as obscene and what
standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards
a mature, integrated society requires [413 U.S. 15, 47] that all ideas competing for acceptance must have no
censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we
have none except our own predilections.

[ Footnote 1 ] California defines "obscene matter" as "matter, taken as a whole, the predominant appeal of which
to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid
interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary
limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly
without redeeming social importance." Calif. Penal Code 311 (a).

[ Footnote 2 ] Roth v. United States, 354 U.S. 476, 502 (opinion of Harlan, J.).

[ Footnote 3 ] Ginzburg v. United States, 383 U.S. 463, 467 .

[ Footnote 4 ] Jacobellis v. Ohio, 378 U.S. 184, 197 (STEWART, J., concurring).

[ Footnote 5 ] At the conclusion of a two-year study, the U.S. Commission on [413 U.S. 15, 40] Obscenity and
Pornography determined that the standards we have written interfere with constitutionally protected materials:
"Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws
prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory
in their practical application. The Constitution permits material to be deemed `obscene' for adults only if, as a
whole, it appeals to the `prurient' interest of the average person, is `patently offensive' in light of `community
standards,' and lacks `redeeming social value.' These vague and highly subjective aesthetic, psychological and
moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is
inconsistently and sometimes erroneously applied and the distinctions made by courts between prohibited and
permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its
scope also cause interference with the communication of constitutionally protected materials." Report of the
Commission on Obscenity and Pornography 53 (1970).

[ Footnote 6 ] It is said that "obscene" publications can be banned on authority of restraints on communications
incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v.
United States, 297 U.S. 553, 597 , or communications respecting the sale of spurious or fraudulent securities. Hall
v. Geiger-Jones Co., 242 U.S. 539, 549 ; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567 ; Merrick v.
Halsey & Co., 242 U.S. 568, 584 . The First Amendment answer is that whenever speech and conduct are brigaded
- as they are when one shouts "Fire" in a crowded theater - speech can be outlawed. Mr. Justice Black, writing for
a unanimous Court in Giboney v. Empire Storage Co., 336 U.S. 490 , stated that labor unions could be restrained
from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black
said: "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to
speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the
contention now." Id., at 498.

[ Footnote 7 ] See United States v. 12 200-ft. Reels of Film, post, p. 123; United States v. Orito, post, p. 139; Kois v.
Wisconsin, 408 U.S. 229 ; Byrne v. Karalexis, 396 U.S. 976, 977 ; Ginsberg v. New York,390 U.S. 629, 650 ; Jacobs v.
New York, 388 U.S. 431, 436 ; Ginzburg v. United States, 383 U.S. 463, 482 ; Memoirs v. Massachusetts, 383 U.S.
413, 424 ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 72 ; Times Film Corp. v. Chicago, 365 U.S. 43, 78 ; Smith v.
California, 361 U.S. 147, 167 ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 ; Roth v. United States, 354
U.S. 476, 508 ; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 446 ; Superior Films, Inc. v. Department of
Education, 346 U.S. 587, 588 ; Gelling v. Texas, 343 U.S. 960 .

[ Footnote 8 ] The Commission on Obscenity and Pornography has advocated such a procedure: "The Commission
recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of
sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory
judgments as to whether particular materials fall within existing legal prohibitions . . . . "A declaratory judgment
procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against
suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed
for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The
Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the
legal status of materials; where other alternatives are available, the criminal process should not ordinarily be
invoked against persons who might have reasonably believed, in good faith, that the books or films they
distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter
the free distribution of constitutionally protected material." Report of the Commission on Obscenity and
Pornography 63 (1970).

[ Footnote 9 ] Obscenity law has had a capricious history: "The white slave traffic was first exposed by W. T. Stead
in a magazine article, `The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but
put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard
of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of
present injury, and proceeding upon an entirely different theory may condemn the defendant because his words
express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost
unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same
way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of
pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state.
This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime." Z.
Chafee, Free Speech in the United States 151 (1942).

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join,
dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no occasion to
consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the
offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of
distributing obscene matter in violation of California Penal Code 311.2, on the basis of evidence that he had
caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether
a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the
precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under
which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. * "[T]he
transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with the requisite narrow specificity.'" Gooding v. Wilson, 405 U.S. 518,
521 (1972), quoting [413 U.S. 15, 48] from Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). See also Baggett v.
Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); id., at 619-620 (WHITE, J.,
dissenting); United States v. Raines, 362 U.S. 17, 21 -22 (1960); NAACP v. Button, 371 U.S. 415, 433 (1963). Since
my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and
since the state courts have as yet had no opportunity to consider whether a "readily apparent construction
suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra,
at 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for
proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616.

[ Footnote * ] Cal. Penal Code 311.2 (a) provides that "Every person who knowingly: sends or causes to be sent, or
brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints,
exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer
to distribute, any obscene matter is guilty of a misdemeanor."[413 U.S. 15, 49]

G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and
DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD
OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
The Solicitor General for respondents.

FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the
invocation of the constitutional right to freedom of expression 1 of an artist—and for that matter a man of letters too—
as the basis for a ruling on the scope of the power of respondent Board of Review for Motion Pictures and Television
and how it should be exercised. The dispute between the parties has been narrowed down. The motion picture in
question, Kapit sa Patalim was classified "For Adults Only." There is the further issue then, also one of first
impression, as to the proper test of what constitutes obscenity in view of the objections raised. Thus the relevance of
this constitutional command: "Arts and letters shall be under the patronage of the State.2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly
registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for
Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its
Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa
Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A
motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was
without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's
Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee
and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however,
certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to
Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January
21, 1985, as one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board
has revoked its questioned resolution, replacing it with one immediately granting petitioner company a permit to
exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented above would be
academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only,
but the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on
the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For
Adults Only." For petitioners, such classification "is without legal and factual basis and is exercised as impermissible
restraint of artistic expression. The film is an integral whole and all its portions, including those to which the Board
now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis even for
the vague speculations advanced by the Board as basis for its classification. 8 There was an answer to the amended
petition filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered
by the Board as well as the statutory provisions for review of films and as to the requirement to submit the master
negative have been all rendered moot. It was also submitted that the standard of the law for classifying films afford a
practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of
the standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide
respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the
controlling standard to warrant the classification of "For Adults Only." This is especially so, when obscenity is the
basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the free speech
and free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic
impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the
prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson9 is the "importance of motion pictures
as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform. 10 There is
no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were
sustained, there is a diminution of the basic right to free expression. Our recent decision in Reyes v.
Bagatsing11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified
with the liberty to discuss publicly and truthfully any matter of public concern without censorship or
punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be
a 'clear and present danger of a substantive evil that [the State] has a right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic
rights are emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise
of such right. This is not to deny that equally basic is the other important aspect of freedom from liability.
Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is,
beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v.
Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press
consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view
in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to
the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with
sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting
as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation,
the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional
objections, determine what motion pictures are for general patronage and what may require either parental guidance or
be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the
exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity.16
3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an
evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present.
There should be no doubt that what is feared may be traced to the expression complained of. The causal connection
must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be
ignored. Nor does it suffice if such danger be only probable. There is the require of its being well-nigh inevitable. The
basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television
programs, and other such media of expression are concerned — included as they are in freedom of expression —
censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and
present danger of a substantive evil to public public morals, public health or any other legitimate public
interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what
medium of expression he may use, should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United
States 19 speaking of the free speech and press guarantee of the United States Constitution: "All Ideas having even the
slightest redeeming social importance — unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing
climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the
limited area of the First Amendment is the rejection of obscenity as utterly without redeeming social
importance. 20 Such a view commends itself for approval.
5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach
followed in Roth: "The early leading standard of obscenity allowed material to be judged merely by the effect of an
isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts
adopted this standard but later decisions have rejected it and substituted this test: whether to the average person,
applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient
interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons,
might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally
restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible
infringement on the freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United
States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is beyond the pale of constitutional
protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful that no
violation of the right to freedom of expression is allowable. It is a matter of pride for the Philippines that it was not
until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a
similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and
obscenity are not synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing
to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to
deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force
in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital
problems of human interest and public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary
Filipino cultural values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the
question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the
patronage of the State. 27 That is a constitutional mandate. It will be less than true to its function if any government
office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for
beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that
art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or
perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to
be given to the adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's
personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in
Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what
was stated in a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an
elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions,
that when a law is susceptible of two constructions' one of which will maintain and the other destroy it, the courts will
always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the controlling
standard and its conformity to what the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of
discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and
travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only," without any deletion or
cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then
that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be
considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents
in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater operators
and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a
theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least
nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians.
And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of
robbers and the police. The vulnerable and imitative in the young audience will misunderstand these
scenes." 32 Further: "Respondents further stated in its answer that petitioner company has an option to have the film
reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in
the film." 33 Petitioners, however, refused the "For Adults Only" classification and instead, as noted at the outset, filed
this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches
every home where there is a set. Children then will likely will be among the avid viewers of the programs therein
shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal
with the sexual fantasies of the adult population. 34 it cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for
certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in
the classification of Kapit sa Patalim as "For-Adults-Only."
Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and
Alampay, JJ., concur.
Aquino, J., concurs in the result.
De la Fuente, J., took no part.
Abad Santos, J., is on leave.

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of
Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as
its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We
quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be obscene, pornographic and
indecent and later burned the seized materials in public at the University belt along C.M. Recto
Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various
student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-
edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their
agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation
thereof claiming that the magazine is a decent, artistic and educational magazine which is not per
seobscene, and that the publication is protected by the Constitutional guarantees of freedom of speech
and of the press.
By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction
on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983
why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining
order. against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy"
Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's
pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that
the said materials were voluntarily surrendered by the vendors to the police authorities, and that the
said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for
a writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on
December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment
was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of
preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can
without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on
whether said magazine is obscene or not".
The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff
filed an urgent motion for issuance of another restraining order, which was opposed by defendant on
the ground that issuance of a second restraining order would violate the Resolution of the Supreme
Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of
Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only
for twenty days from date of its issuance.
 On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984
"for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or
not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to
file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for
the defendants, who may file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment
on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene
publications or materials deserves close scrutiny because of the constitutional guarantee protecting
the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution
against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however,
that freedom of the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the
search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable
structure (See Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the police officers could without any court warrant or order seize and confiscate petitioner's
magazines on the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the trial court could dismiss the case on its merits without any hearing thereon when what was
submitted to it for resolution was merely the application of petitioner for the writ of preliminary
injunction.4
The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or
what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger,5 the Court laid down the test,
in determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to
deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or
other article charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks
the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a
picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to
be decided by the "judgment of the aggregate sense of the community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has
grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting
tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say
that a piece of literature has a corrupting influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a
hypothetical "community standard" — whatever that is — and that the question must supposedly be judged from case
to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised
Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in
art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed. However, the pictures here in question were used not
exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those
pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and
for love for excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures.11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is
easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather
for commercial purposes," 12 the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the "redeeming" element that
should accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures of women
in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one
might yet claim that there was involved the element of art; that connoisseurs of the same, and
painters and sculptors might find inspiration in the showing of pictures in the nude, or the human
body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the
sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room
for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to
public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ...14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was
attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes,"15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition
was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration,"16 in it, would it cease
to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of
Ideas and "two-cents worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United States, adopted the
test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a
whole appeals to prurient interest."18 Kalaw-Katigbak represented a marked departure from Kottinger in the sense that
it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial
question and as a consequence, to temper the wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey from development to
development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is
unintelligible."19
Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming
social value,"21 marked yet another development.
The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and established "basic
guidelines,"23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken
as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value."24
(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v.
Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture,Carnal
Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American
sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the
reluctance of the courts to recognize the constitutional dimension of the problem .27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to
society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will
ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject — as in all
speech — to regulation in the interests of [society as a whole] — but not in the interest of a uniform vision of how
human sexuality should be regarded and portrayed."28
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress
smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation.
James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature
today.29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most
prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that have probably compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer,
as it is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in American
decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of
"obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after
all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In
free expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and
present danger" that would warrant State interference and action.30 But, so we asserted in Reyes v.
Bagatsing,31 "the burden to show the existence of grave and imminent danger that would justify adverse action ... lies
on the. . . authorit[ies]."32
"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and
present danger."33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not
rely solely on his own appraisal of what the public welfare, peace or safety may require."34
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger
test."35
The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-
but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal
search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the
speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not
only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must
allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and
present danger), it must come to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry
out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to
protect society from pornographic literature that is offensive to public morals."36 Neither do we. But it brings us back
to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher
and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969),"37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in
disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as "state authority
to enact legislation that may interfere with personal liberty or property in order to promote the general welfare
."39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves,
authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and
the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down
procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints,
engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen
(15) days after his receipt of a copy of the decision, appeal the matter to the Secretary of National
Defense for review. The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations of Section I
hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the
accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed
.40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become
unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the
Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid, in the complete
absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no different
from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. — A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.44
but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on
account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party,
under Article 201, as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of
all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be
punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the
respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search
warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor
judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an
obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are "obscene", and
pose a clear and present danger of an evil substantive enough to warrant State interference and action;
3. The judge must determine whether or not the same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties
seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of
official power under the Civil Code" 47 or the Revised Penal code .48
WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It
appearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines to
grant affirmative relief. To that extent, the case is moot and academic.
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.
Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.
Gutierrez, Jr., J., is on leave.

G.R. No. 14576 September 6, 1918

In Re VICENTE SOTTO.
Vicente Sotto in his own behalf.
Attorney-General Paredes for the Government.
STREET, J.:
Complaints having heretofore been laid before this court charging the respondent, Vicente Sotto, an attorney
practicing before this bar, with unprofessional conduct, said complaints were by resolution of the court referred to the
Attorney-General for investigation. Upon November 30, 1917, the Attorney-General, after inquiring into said charges,
reported that the charges were in his opinion well-founded and recommended the institution of disbarment
proceedings under section 24 of the Code of Civil Procedure. The respondent was thereupon notified of said report;
and, after he had put in his reply, evidence was taken, pursuant to our resolution of December 14, 1917, before the
clerk of the this court. The matter is now before us for consideration upon the evidence so taken and the arguments
submitted in the form of memoranda by the Attorney-General for the Government, and by Sotto, as respondent.
The charges involved in the report of the Attorney-General were primarily four in number, to which the Attorney-
General has added a fifth, based upon matters connected with the present proceeding itself. The four original charges
are based upon four distinct transactions; and, in order that their nature may be fully understood, we herewith set forth
in detail the facts connected with three of these transactions, namely, the first, third, and fourth. The other two charges
will be dealt with more summarily at the end of our detailed statement.
On June 16, 1917, Natalia Enriquez of Paombong, Bulacan, sold to Santiago V. SyJuco of Malabon, Rizal, two parcels
of land. The contract of sale was embodied in a document duly acknowledged before a notary public. For some reason
or other, the vendor, on or about the first day of August, 1917, instituted an action against the vendee for the purpose
of securing the rescission of said contract. The plaintiff's attorney of record in this proceeding was one Jose Galan.
While the action was pending the respondent, Attorney Vicente Sotto, intervened in representation of the plaintiff. On
August 10, 1917, he went to the house of SyJuco in Malabon and attempted to procure his consent to the rescission of
the contract above-mentioned and endeavored to induce him to sign for that purpose a document already prepared
rescinding said contract. As SyJuco was reluctant to rescind the contract, the respondent, Vicente Sotto, intimidated
and threatened him, telling him that unless he signed such document the respondent would procure his discharge from
the office of notary public which he then hold, would file charges of estafaagainst him, as a result of which, he would
enter Bilibid prison, and further that the respondent would publish in all the newspapers an article to the effect that
SyJuco was an impostor.
These threats, especially that relating to the publication in the newspapers that SyJuco was an impostor, had the
desired effect; and on August 11, 1917, SyJuco, although aware that the charges imputed to him were false, and in
order to prevent the respondent from carrying his threats into execution, acceded to the respondent's demand and
executed document rescinding the contract in question.
Sotto seems not to have been fully satisfied with this; and a short time after the occurrence of the events above
narrated, he wrote to SyJuco a letter dated August 13, 1917, in which he asked the latter to pay him the sum of P2,500
as supposed losses and damages to his client Natalia Enriquez, and giving him two days time within which to settle
the claim extra-judicially. To make his demand more effective and probably to impress upon SyJuco's mind the fact
that the respondent would surely execute his threats he caused to be published in the issue of August 13, 1917, of the
newspapers "El Comercio" and "La Nacion," an article prepared by himself and entitled "Grave Charges Against a
Notary." The same article was by him caused to be published in the issue for August 16, 1917, of the newspaper "El
Ideal" where it appeared under the heading of "The Mother of Dr. Valencia Victim of an Imposter." The difference in
the headline of the article as it appeared in "El Ideal" and as it appeared in the other two papers, and the slight
difference which may be found in their context, is the result of changes made by the corresponding editors of said
papers for the purpose of evading any responsibility. These articles refer to SyJuco and in substance impute to his acts
constituting fraud and deceit in securing the execution of the contract first above mentioned, and further informs the
public "an information for estafa will be filed against the impostor (referring to SyJuco) with Attorney Vicente Sotto
acting as private prosecutor, unless SyJuco should pay all losses and damages."
Four or five days passed. The respondent, meanwhile not having received any answer from SyJuco, wrote him a
registered letter, in which he reproduced the contents of the first letter and when concluded with this remark: "No
answer having been received from you, you are advised that I will present the complaint with its consequences." In
this letter were inclosed two pictures, one of Atanasia Enriquez, and another of Natalia Enriquez, the latter bearing a
note in the handwriting of the respondent and saying "To be published on the 25th." This note, together with the
demand for the payment of P2,500, was a veiled threat to the effect that unless this sum of money was forthcoming
the publication of scandalous charges against SyJuco would continue; and this was probably one of the "fatal
consequences" which the respondent had in mind. Such action on the part of the respondent finds it a cause in
SyJuco's not paying any attention to his first letter, and had the object of impressing all the more upon the mind of his
intended victim that he, the respondent, had all the means of exposing him to public ridicule and contempt.
Still no answer was received from SyJuco; and the respondent caused to be published in "The Independent" for
August 25, 1917, together with the pictures above described and the affidavits of Natalia and Atanasia Enriquez,
detailing the acts alleged to constitute the supposed fraud and deceit, the article he had already caused to be published
in the newspapers above mentioned. As it appeared in "The Independent" the article was entitled "An Aged Lady of
Seventy Years denounces under oath the Adventures of a notary public of Malabon" (referring to SyJuco); and, to
make it appear that he had taken or copied it from "La Nacion," he placed upon said article an epigraph which reads,
"What 'La Nacion' says." However, the truth is, as has been said, that it was he who provided "La Nacion" and the
other newspapers with said article.
In spite of these publications SyJuco maintained his silence; and the respondent, in pursuance of his threats and of his
intention to make SyJuco come to terms, committed the following acts: He asked SyJuco's mother for a picture of her
son and for a copy of the judgment rendered by the Court of First Instance of Rizal in a case between SyJuco and his
parents, without telling her the purpose for which he wanted them. Then he caused both the picture and the judgment
to be published in the issue of "The Independent" for September 1, 1917, under the heading printed in big type of
"Son Sued by His Parents. Santiago V. SyJuco is sentenced by Judge McMahon." Just below the picture is printed the
name "Santiago V. SyJuco" and above it is the satirical phrase "Men of the day." This publication had an introductory
paragraph which states that "SyJuco, the notary public of Malabon, Rizal, who recently, according to the daily papers,
attempted to defraud an aged lady of seventy years, making her sign a fraudulent document of sale of a fisher worth
fifteen thousand pesos, had just lost the suit pending between him, and his father the Chinese Vicente SyJuco and his
mother Cipriana Viardo. This woman ages more than fifty years, has appeared at the office of "The Independent" in
order to ask for the publication of the judgment." But the truth, as already stated, was that it was the respondent who
published it without the permission or knowledge of the old lady.
The respondent denies having made any threats against SyJuco but we think that the proofs tend to show that such
threats were made. The testimony of the witnesses for the Attorney-General to the effect that the respondent stated that
information for estafa would be filed against SyJuco, that he would surely enter Bilibid prison, etc., agrees with the
respondent's attempt, as shown by Exhibits 4-A and 7-A of the Attorney-General, to make and that he committed a
crime and that he admitted its commission.
Denial is also made of the truth of the charge that the respondent had sent to SyJuco the picture of Natalia Enriquez,
which bears the note "To be published on the 25th." There are numerous circumstances, not necessary to be here
detailed, which in our opinion conclusively show that the charge is true.
We now pass to a consideration of the third charge, with respect to which the fact are as follows:
On June 29, 1917, Jose Tortajada, a resident of Manila, executed a document by which he appointed the respondent as
his attorney for the purpose of settling, judicially or extra-judicially, certain differences which he had with his wife,
Amada Mestres. In said document Tortajada promised to pay the said respondent the sum of P2,000 for his services.
For the purpose of acquainting the respondent with all the details of the case, Tortajada sent him on June 30, 1917, a
letter in which he described in detailed the proud, haughty, stingy, and despotic character of his wife and the insults,
humiliation, maltreatment, and remorse that he had suffered at her hand — all of which, if published, would surely
injure the reputation of both spouses and expose them to public ridicule.
The respondent, in pursuance of the contract of employment, began work on the case and had some interviews with
Tortajada's wife. Whether as a result of the respondent's services or not, all differences between Tortajada and his wife
were soon afterwards settled extra-judicially; and the respondent, not long after, made a demand for the payment of
his fees of P2,000, which Tortajada refused to pay. Later on, Tortajada received in the mail the following documents:
(1) a photographic copy of a letter which purported to be signed by Tortajada and addressed to the respondent; (2) a
typewritten anonymous letter addressed to Tortajada; and (3) an envelope addressed to the same person bearing the
name of the respondent on the upper left hand corner and in all the respects of the same class as that admitted to have
been used by him. The photographic copy above mentioned is a copy of a letter which Tortajada had previously
written to the respondent and in which the latter was urged to expedite the case. The anonymous letter reads:
"Attorney Sotto says that as you are looking for trouble, he had decided this morning to present a complaint against
you, in which are reproduced all — absolutely all — of your letters, and, if you compel him, he will cause the
complaint together with the photographic facsimiles of all the letters to be published in 'The Independnet' and in all
the local papers so that the public may know you and your motives." Believing that these things came from the
respondent, Tortajada sent him a letter in which he stated that he was not afraid of the respondent's threats and that the
latter could do anything he wanted to do and yet the former would not pay him a cent. To this reply no answer was
received from the respondent.
Thereafter, the respondent filed in the Court of First Instance of the city of Manila a complaint against Tortajada for
the purpose of recovering the sum of P2,000, the amount of fees agreed upon. In paragraph 6 of this complaint there is
an exact copy of the letter of June 30, 1917, which Tortajada sent to the respondent and in which details are given of
the domestic troubles of Tortajada.
There can be no doubt that, supposing the anonymous letter had been sent by the respondent, its language considered
with the relation of the parties at the time, especially with the persistent refusal of Tortajada to pay the respondent's
fee, would constitute a threat against Tortajada of a type similar to that employed by the respondent against SyJuco.
But the respondent denies the authorship of the anonymous letter and that it was he who sent it. The Attorney-General,
however, contends that he (the respondent) is the author thereof and that it was he who sent it. This contention is
based upon the following grounds: (1) The fact that the anonymous letter was received; (2) the similarity of the
envelope in which it was contained to the envelopes used by the respondent; (3) the fact that Tortajada answered it
addressing a letter to the respondent, and yet the latter never made any reply denying that he sent it; (4) the fact that
only the respondent could have taken the photograph of the letter delivered by Tortajada to Amando Calleja and
addressed to the respondent; and (5) the fact that, as was stated in the anonymous letter, all the letters sent by
Tortajada were reproduced in the complaint.
This combination of circumstances in our opinion shows beyond a reasonable doubt that the respondent sent the
anonymous letter as charged.
The respondent as a second defense to the third charge contends that it was not he but his clerk, Amando Calleja, who
prepared the complaint filed against Tortajada and that the respondent signed it without first reading its contents. We
are, however, of the opinion that, taking all the circumstances into consideration, it was the respondent himself who
prepared the complaint, or at least, if somebody else prepared it, the respondent ordered or approved the insertion of
the letter in the complaint.
But the respondent further contends that, even admitting that the letter in question was inserted by him or by his order,
he was under no obligation to keep its contents as secret.
In this view we can by no means concur. The letter was written confidentially by a client to the respondent in his
capacity as attorney. Hence the respondent was under obligation to keep the contents of the letter inviolate; and as it is
wholly immaterial in the cause of action stated in the complaint against Tortajada, its insertion therein constitutes a
gross violation of professional conduct and of the oath taken by the respondent that he would always conduct himself
with entire fidelity to his clients.
The facts material to the fourth charge are these: Sometime in the month of September, 1917, Natalia Enriquez was
looking for someone who would buy certain parcels of land belonging to her. Atanasia Enriquez, a niece of Natalia,
was aiding her in this work, probably in the capacity of broker. It appears that the respondent was also acquainted with
this fact and was also probably looking for a purchaser for one of two reasons, to wit: (1) Either because prior to that
time Natalia Enriquez was indebted to him in the sum of P2,000, which he wanted to be paid out of the proceeds of
the sale, or (2) because he wished that the document of conveyance should be executed with his aid so that he could
earn his fees. It also appears to be probable that there was an understanding between Natalia, Atanasia, and the
respondent, that when a purchaser should appear, the document would be executed with the intervention of the
respondent.
On one of the last days of September, 1917, a person named Bernardo Dagala, or rather his wife, Enrica de Guzman,
was found who was willing to purchase the property. When the sale had already been verbally agreed upon, Atanasia
Enriquez accompanied by Dagala went to the office of the respondent to notify him that a purchaser had been found
and probably with a view to the execution of the proper document. But in order that they could easily withdraw and
find another notary who would draw the document for a less sum, in a case the respondent should charge them too
high, they withheld the name of the purchaser and Dagala was presented merely as a person who aided in looking for
a purchaser. But the respondent, more resourceful that they were and with the intention of securing information from
them as to who the purchaser was, met them with the statement that he too had found a purchaser who would pay
more and who had ready money in the bank and that the sale to this person should not be delayed. Thereupon, Dagala,
anxious that the sale should be made to him only, declared that he himself was the purchaser. Thus seeing that Dagala
was so intent to purchase the property and believing that he would be willing to pay any sum for the drafting of the
document, the respondent told him that the other purchaser was willing to pay him P500 for that work, and that
Dagala has to pay this sum if he wanted to purchase the property. After some more discussion as to the proper fees for
drafting the document they parted with the understanding that they would again meet the next day at the respondent's
office. However, believing that the fee demanded by the respondent was too high, Natalia Enriquez, her son Juan
Valencia, Dagala, and his wife De Guzman went the next day, September 30, 1917, to another notary public in Manila,
Miguel de Leon, who drafted the document of conveyance for a sum much less than the exorbitant fee which the
respondent proposed to charge.
The next day the respondent was informed that the document had been prepared at the office of Miguel de Leon and
on the afternoon of that day the former went to the latter's office and representing that he was the attorney of Natalia
Enriquez demanded that the document be shown to him alleging that his client had told him that she signed it without
knowing its contents. Miguel de Leon showed him the document and explained to him in detail the circumstances
under which it was executed, and which leave no room for doubt that there was nothing illegal about, nothing that
could invalidate it. The object of the respondent in going to the office of Miguel de Leon was of course to verify the
information which he had received and which he found out was true. Irritated at the fact that he had thus lost the sum
of P500 which he expected to get as a fee for drafting the document of sale, the respondent, on October 2, 1917, sent
two letters to Bernardo Dagala and two other letters to Natalia Enriquez.
In this first letter to Dagala, he states that, according to his clients, Dagala had made them sign a document which they
did not understand, that Dagala's conduct was improper, and requested that the latter should see him at once. In his
second letter he reproduces in effect the substance of the first letter and adds: "Come immediately to my office if you
want to avoid the fatal consequences of what you have just done." In his first letter to Natalia Enriquez, he ordered her
to come to his office in order to talk about the document she had signed. In the second letter he advised her that the
fault was hers and again asked her to see him.
On October 3, 1917, Dagala went to the office of the respondent, afraid of the "fatal consequences" which the latter
covertly threatened in his letter. Here the respondent told Dagala that he had acted improperly in not coming to the
former's office on the day agreed upon, that the former had lost the sum of P500 which the other purchaser promised
to pay for drafting the document, that he needed money, and that he would cause trouble unless Dagala should pay
him the P500 he had lost, and guarantee with the property acquired by his wife the debt of P2,000 which Natalia
Enriquez owed the respondent. Somehow or other, instead of a mere guaranty, Dagala on October 3 was caused by the
respondent to sign a document by which, beside guaranteeing Natalia's debt of P2,000 with the property sold to his
wife, he assumed the payment of the same. This done, the respondent, who knew beforehand that the property
purchased by Dagala's wife was subject to a lease and right of option in favor of one Marcelo Estrella, then requested
that Dagala should convince his wife to appoint him as their attorney to secure the delivery of the property from
Estrella. Dagala promised to come back with his wife the following day, October 4, 1917, which they did, to inform
the respondent of their answer.
On this occasion Dagala paid the respondent P500 upon the account of Natalia's debt for which a receipt was given.
The Dagala spouses then executed a document by which they appointed the respondent their attorney to secure from
Marcelo Estrella the delivery of the property, and by which they promised to pay him the sum of P500 as attorney's
fees. Acting under this appointment and in representation of the Dagala spouses the respondent had an interview with
Estrella at his own office. Estrella manifested his willingness to deliver the property provided that he be indemnified
for damages and improvements he had made upon it.
Several days later, that is, on or about October 16, 1917, the respondent appeared at the office of the prosecuting
attorney of the city of Manila and acting as attorney for Natalia Enriquez asked that an information forestafa be filed
against the Dagala spouses upon the ground that these persons had defrauded Natalia Enriquez in the sale of the
property heretofore referred to. It will be noted that at this time the respondent was attorney for the Dagala spouses
with respect to the same property and knew all the details of the transaction which led to the sale thereof. An
investigation was held the result that the prosecuting attorney, seeing no good ground for filing the information
for estafa, refused to do so. But the respondent insisted and stated that he desired criminal proceedings to be instituted
against Dagala and his wife because he was sure that as soon as they or at least Dagala should be arrested, they would
immediately consent to a settlement in order to avoid the scandal which the respondent intended to create with the
filing of the information and which he would publish in his weekly, "The Independent." In spite of this insistence,
however, no information was filed; and the respondent on October 25, 1917, wrote a letter to the Attorney-General in
which, after relating the refusal of the prosecuting attorney to file the information, he says, "for this reason my
client comes to you in demand of justice."
Thereafter in the month of November a civil action against Dagala and his wife was brought in the Court of First
Instance of Manila in which the plaintiff Natalia Enriquez sought to secure the annulment of the contract of sale, upon
the ground that it was executed through fraud, deceit, and duress. The complaint was signed by Attorney Jose Poblete,
who at that time was a salaried assistant in the law office of the respondent.
Upon the facts above stated it is evident that the respondent in violation of his professional duty, improperly
represented conflicting interests, inasmuch as, while obligated to act for the Dagala spouses in securing the delivery of
the property, he opposed their interest, by attempting to have the sale set aside.
The reply of the respondent is: (1) That it was not he who asked for the investigation held by the prosecuting attorney
but Natalia Enriquez and that he was with her during the investigation not as her attorney but merely as her
companion; (2) that it was not he but Jose Poblete who was the attorney for Natalia Enriquez in the civil action
brought by her against Dagala and his wife; (3) that he had from the beginning acted in good faith. These assertions
are not established. The evidence shows that it was he who personally asked for an investigation, chose the
prosecuting attorney who conducted it, and delivered the papers upon which the fiscal acted; and that he took an
active part in directing the investigation, asking now and then questions of the witnesses. It is also clear that in the
course of the investigation he acted as attorney for Natalia Enriquez. When the prosecuting attorney, finding no good
ground for it, refused to file an information charging estafa, the respondent wrote to the Attorney-General a letter in
which he admits that Natalia Enriquez was his client. He there says: "For this reason my clientcomes to you in demand
of justice." The evidence shows that Jose Poblete was previous to and at the time of the filing of the complaint an
assistant in the law office of the respondent receiving a salary from the latter but with the privilege of handling his
own cases. Prior to the investigation of the professional conduct of the respondent this person was called to the office
of the Attorney-General and there he declared under oath, after reading the complaint signed by him in the case
between Natalia Enriquez and Bernardo Dagala and his wife, that the case was a case of the respondent, who gave it
to him in his capacity of assistant in the respondent's law office, because the respondent desired to appear as a witness
but had the mistaken opinion that if he should sign as attorney for Natalia Enriquez he could not appear as a witness.
The said Jose Poblete was presented as a witness in the subsequent investigation but there he turned out to be a hostile
witness, and testified, contrary to his statement at the Attorney-General's office, that he was surprised when he made
those declarations, that he was nervous at the time, and that he was referring not to the case of Natalia Enriquez
against Dagala but to the case of Sotto against Alcala and Sotto against Desierto. The testimony of this witness is
important in determining (1) the capacity in which he signed the complaint against Dagala and his wife, and (2) the
propriety of the respondent's professional conduct. Special care therefore has been taken in perusing his testimony at
the investigation, as a result of which we come to the conclusion that his conduct during the investigation is
censurable, that his testimony thereat can not be safely relied upon and that what he had declared at the office of the
Attorney-General was the truth.
As to the third defense, the evidence conclusively shows that from the beginning the respondent was acting in bad
faith. In writing the two letters to Dagala in which he made the latter understand that he had committed something
wrong and that fatal consequences would follow unless he should come to the respondent's office, the respondent was
not authorized by Natalia Enriquez. This lady had not had any conversation or correspondence with him about the
document of sale which she had signed; and this is apparent from his letter in which he asked her to come so that they
could talk about that document.
As the Attorney-General well says, there was no ground for Sotto to believe that Dagala and his wife had committed
any crime. If he acted in good faith and believed that the sale to Dagala and his wife was illegal and fastened upon
them grave criminal responsibilities, it would be impossible to explain why he made them sign a document
guaranteeing Natalia's debt to him with the property acquired by the Dagala spouses as a result of the sale. Certainly,
this conduct of the respondent is tantamount to an acknowledgment of the validity of the sale. The terms of the
contract and the circumstances under which the document was executed were fully known to him as they had been
explained by Miguel de Leon. In fact, in his letter to Natalia Enriquez he even told her that she was to blame for what
had happened, from which statement it may safely be inferred that Dagala and his wife were not censurable. The
respondent's purpose in trying to secure the filing of an information against Dagala and his wife for the crime
of estafa was, as by him stated, merely to make them settle the matter with him extra-judicially, in the hope that he
could get more money out of them.
The simple narrative of the facts connected with charges 1, 3, and 4, given above, suffices to show that the respondent
has been decidedly lacking in fidelity to his clients and from motives of private gain has grossly abused the honorable
profession of which he is a member. In each of these transactions his conduct was reprehensible and unprofessional in
a high degree and evinces a moral obtuseness incompatible with the office of attorney. For purposes of extortion and
blackmail he availed himself of his de facto power as the responsible director of a newspaper to blacken the reputation
of his refractory clients or others who refused to submit to his demands. In this he proved himself not only unworthy
of membership in the legal profession but unfit even for the responsible position of editor of a newspaper.
Charge No. 2, in the Attorney-General's report relates to certain malicious and unjustifiable insinuations against the
judicial integrity of the Honorable M. V. del Rosario, a judge of the Court of First Instance of the City of Manila,
which appeared in articles published under the heading "Sin Malicia" in the issues of "The Independent" dated
respectively October 13, 20 and 27, 1917. The occasion which called forth these libelous effusions from Sotto's pen
was that Judge Del Rosario had lately imposed upon him as fine of P500 in a prosecution for criminal libel. The
publication of this matter was a manifest violation of the oath which the respondent had taken to conduct himself with
fidelity to the courts.
Thornton, in his work on Attorneys-at-Law, speaking of offenses of this character, says:
PAR. 788. An attorney who is guilty of writing and publishing a libelous charge against the court or any
member thereof, in respect to his official conduct, or who procures the writing or publication of such a
charge, may and should be, disbarred from further practice. . . .
PAR. 789. Nor can an attorney-at-law shield himself as against a charge of having libeled the court or a judge
thereof, by pleading that he is also the editor of the newspaper wherein the charges were published. His
position at the bar enables him, in such case, to inflict the greater wound, and he may be deprived of the
privileges and character which it gives him, by suspension or expulsion, without infringing on the freedom of
press.
Charge No. 5 in the final report of the Attorney-General sets forth that in the course of the present proceedings the
respondent deliberately deviated from the truth by testifying falsely in regard to certain important details of the
matters under investigation, namely, in denying, under oath, (1) having enclosed the photographs of Natalia and
Atanasia Enriquez in the letter that he sent to SyJuco, and having written the note found on one of them, saying: "To
be published on the 25th;" (2) having sent to Tortajada the photograph of one of the latter's letters addressed to Sotto
with the anonymous typewritten note; and (3) having acted as attorney for Natalia Enriquez in the proceedings for the
institution of criminal charge against Dagala.
We agree with the Attorney-General that these denials are shown to be false beyond reasonable doubt; and the fact that
the respondent made them shows not only the weakness of his defense but furnishes additional proof of his
unworthiness to remain a member of the legal profession.
In deciding the several charges made against the herein respondent, we examined each and every one of them
separately upon its own merits, independently from the others. However, it must be observed that the act alleged in
said charges taken together show a systematic tendency on the part of the respondent, and reveals the existence of a
deliberate plan to foster his own interests, by means of an illicit use of his two-fold capacity as attorney-at-law and
newspaperman. The existence of the good faith on the part of the respondent has thus been belied by the
aforementioned acts.
One of the qualifications required of a candidate for admission to the bar is the possession of good moral character,
and, when one who has already been admitted to the bar clearly shows, by a series of acts, that he does not follow
such moral principles as should govern the conduct of an upright person, and that, in his dealings with his clients and
with the courts, he disregards the rule of professional ethics required to be observed by every attorney, it is the duty of
the court, as guardian of the interest of society, as well as of the preservation of the ideal standard of professional
conduct, to make use of its powers to deprive him of his professional attributes which he so unworthily abused.
In view of the repeated acts of gross misconduct above specified, on the part of the respondent Vicente Sotto, and by
virtue of the provisions of section 21 of the Code of Civil Procedure, the said Vicente Sotto is hereby removed from
the office of attorney and incapacitated from hereafter exercising the legal profession. The certificate heretofore issued
to him authorizing him to exercise said profession is accordingly annulled, and let the surrender thereof to the clerk of
this court be required within five days after this decision becomes effective. The costs will be taxed in accordance
with section 24 of the Code of Civil Procedure.
Torres, Johnson, Avanceña and Fisher, JJ., concur.

Separate Opinions
MALCOLM, J., concurring:
I cannot bring myself to agree with much which is found in the majority decision. In my judgment, charges 1, 2 and 5
against Sotto are either not proved or, if proved, do not constitute sufficient ground for disbarment. Charges 3 and 4
are proved. Charge No. 3, being established, requires judicial enforcement, because "a lawyer must strictly maintain
inviolate the confidence and preserve the secrets of his client." (Code of Civil Procedure, sec. 31) Charge No. 4, being
established, requires judicial enforcement, because "it is unprofessional to represent conflicting interests, except by
express consent of all concerned given after a full disclosure of the facts." (Code of Ethics, par. 6.)
With reference to charge No. 2, I would not be understood for an instant as agreeing with the statements reflecting on
the Honorable Vivencio del Rosario, judge of first instance. What I do mean is, that such criticism of judicial action is
not sufficient to withdraw from a lawyer judicial action is not sufficient to withdraw from a lawyer the exercise of his
profession. Judges, being only public servants, can take unto themselves no divine rights to be sustained by their own
arbitrary powers.
The grave action taken by this court requires a word of explanation. A reading of the prior decisions of this court on
the subject of attorneys-at-law would seem to disclose that, in some instances, the attitude that disbarment
proceedings are in the nature of punishment has been taken and that in other instances, judicial leniency has been
carried to an unwarranted extreme. In reality, suspension or disbarment proceedings are enforced in order to deter
others from similar misconduct and as an indication to the public that the courts will maintain the ethical standards of
the profession. In well-chosen language, a former justice of this court has said: "The disbarment of an attorney is not
intended as a punishment, but is rather intended to protect the administration of justice by requiring that those who
exercise this important function shall be competent, honorable, and reliable; men in whom courts and clients may
repose confidence. This purpose should be borne in mind in the exercise of disbarment, and the power should be
exercised with that caution which the serious consequences of the action involves." (In re MacDougall [1903], 3 Phil.,
70.) An admirable statement of the reasons for disbarment is also to be found in In re Shepard [1917], 170 Pac. Rep.,
446), by Works, J., when he says:
In one or two of the affidavits in the record the statement is made that the petitioner has been punished
enough, as if a disbarment were punitive in character. It is not. The removal of an attorney's name from the
rolls of the profession is a measure protective in character; in a certain sense protective of the profession, but
in a higher sense protective of the public, which finds it necessary to resort to the services of lawyers. No one
not a lawyer can fully realize the opportunities for undiscovered speculation, graft, and embezzlement which
are afforded the practitioner at the bar. No one not a lawyer can so well understand the degree to which the
public is entitled to protection from dishonesty in the profession. When a member of the profession has been
found lacking in the requisites which go to make him a helper to his clients, and has been discovered to
possess aims, views, and purposes which indicate a moral obliquity in him, and which might make his clients
his victims, it is well that he were removed from the possibility of doing them harm. When he has been once
disbarred, a mistaken charity should not restore him to his position. That restoration should only come when
he has lived long enough after his disbarment in honorable intercourse with his fellow citizens to demonstrate
that he is both tried and true.
Comparing the charge against Sotto with the charges which have been made and establish against other attorneys, and
comparing the resolution of these other cases with the one before us, it might seem that we are now proceeding to do
an injustice to the respondent. This may be true by way of exact comparison. Surely, however, the time has come
when the Supreme Court should give the weight of its influence to the betterment of the legal profession. The power
to withdraw the right to practice law "should be discreetly but fearlessly exercised."
What has just been said has caused me to suggest that justice might here be tempered with mercy to the end that Sotto
be permitted to continue with the cases he now has in court, particularly, as all know, that confidence has been reposed
in his ability as a lawyer to defend an accused under sentence of death which must come to the appellate court for
review. As my colleagues failed to see the advisability of this recommendation, I must perforce waive the same and
join in the judgment of the court.

================================================================

A.M. No. 93-2-037 SC April 6, 1995

IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its
First Vice-President, Mr. Vicente R. Samson, appellant,

NARVASA, C.J.:
Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual
judges, is what is involved in the proceeding at bar — than which, upon its facts, there is perhaps no more appropriate
setting for an inquiry into the limits of press freedom as it relates to public comment about the courts and their
workings within a constitutional order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is
needed, these being:
1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted
versions of facts — or accusations which he made no bona fide effort previously to verify, and which
he does not or disdains to prove — cannot be justified as a legitimate exercise of the freedom of
speech and of the press guaranteed by the Constitution, and cannot be deemed an activity shielded
from sanction by that constitutional guaranty;
2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics"
which inter alia commands the journalist to "scrupulously report and interpret the news, taking care
not to suppress essential facts nor to distort the truth by improper omission or emphasis," and makes
it his duty "to air the other side and to correct substantive errors promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court
or of the judge presiding over it or degrades or tends to place the courts in disrepute and disgrace or
otherwise to debase the administration of justice, constitutes contempt of court and is punishable as
such after due proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to
declare the utterer or writer in contempt, the initiation of appropriate contempt proceedings against
the latter by the court is not only its prerogative but indeed its duty, imposed by the overmastering
need to preserve and protect its authority and the integrity, independence and dignity of the nation's
judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the
"Manila Standard." He describes himself as a columnist, who "incidentally happens to be a lawyer," remarking that
while he values his membership in the law profession, "such membership is neither a critical nor indispensable
adjunct in the exercise of his occupation as a newspaperman." 2 His column in the "Manila Standard" is entitled
"Opinion."
Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about
October, 1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At
the same time, anonymous communications were being extensively circulated, by hand and through the mail, about
alleged venality and corruption in the courts. And all these were being repeatedly and insistently adverted to by certain
sectors of society.
In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order
No. 11-93 dated January 25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the
Judiciary," 3 reading as follows:
WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified
reports respecting corruption in the judiciary, said rumors and reports not only having been
mentioned by media and in anonymous communications, but having also been adverted to by certain
government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted
 composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon.
Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain
the truth respecting said reports and statements, and to this end, forthwith interview at closed-door
sessions or otherwise, such persons as may appear to it to have some knowledge of the matter and
who may be appealed to to share that knowledge with the Court, and otherwise gather such evidence
as may be available. The Committee is hereby authorized to use such facilities and personnel of the
court as may be necessary or convenient in the fulfillment of its assigned mission, and shall submit
its report to the Court within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in
Metro Manila (who) have become so notorious in their dealings with litigants and lawyers that they
are now called the "Magnificent Seven."" He stated that "(i)t has come to a point where lawyers and
litigants try their darndest to stay away from these judges. The answer, of course, is obvious."
2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven,"
which, he said, should be distinguished from the first. He wrote: "When lawyers speak of the
"Magnificent Seven" one has to make sure which group they are referring to. Makati's "Magnificent
Seven" are a bunch of Makati regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty
Dozen." In his column of October 21, 1992 he said that there are " . . . 12 judges who have acquired
such reputation for graft and corruption that they are collectively known as the "dirty dozen". These
judges, I am told, are not satisfied with accepting bribes; they actually sell their decisions to the
litigants and "solicit" their bids for what is clearly an auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some
of those from Pasay, Pasig and Quezon City; corruption in lower Courts had been admitted by an
Executive Judge in a Metro Manila Regional Trial Court (column of November 9, 1992); and because
the "Dirty Dozen" had given Makati the reputation of having the most corrupt RTC in the country,
multi-nationals and financing institutions explicitly stipulate in their agreements that litigation in
connection with these contracts may be held anywhere in Metro Manila except in Makati; and
lawyers confirm that Makati Judges, including some persons in the sheriffs office, are the most
corrupt, where before, Pasay and Quezon City had that dubious distinction (column of December 1,
1992).
4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office"
at a restaurant near the Court of Appeals building. He is known as the contact man of five CA
divisions. Lawyers say that this former jurist really delivers." In his column of January 29, 1993, he
adverted to the same unnamed former Justice as being "known for fixing cases for five CA divisions
(that is what he tells lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant
paying can even write his own decision using a CA justice as ponente. This ex-justice holds court at
the mezzanine of a restaurant owned by the wife of a former Marcos cabinet member and which has
become a meeting place for judges, CA justices, practicing lawyers, prosecutors and even Supreme
Court justices. The former CA justice also has his own Chinese contact. After I exposed this last year,
the habitues became scarce. But they are back again, and the ex-justice is still-doing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining
order from a regional trial court in Metro-Manila by paying the judge anywhere between P30,000.00
and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for
decisions favoring drug-traffickers and other big-time criminals, naming the judges and giving
detailed accounts of the bribery (January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had
"hosted a lunch at its penthouse mainly for some justices, judges, prosecutors and law practitioners"
 (January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or
more, depending on how much money is at stake, that a case is raffled off to a Judge who will be
"extremely sympathetic," and can arrange to have the Court issue attachments or injunctions for a
service fee of 1% over and above the regular premium of the attachment or injunction bond; a
Chinese-Filipino businessman who paid this "miracle worker" P300,000.00 on top of the regular
premium on the attachment/injunction bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking
provisional remedies should be raffled off to the judges," thus violating the rule that no case may be
assigned in multi-sala courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to
nominate him to the Court of Appeals; and a son and a nephew of JBC members, who were also
nominated to the Court of Appeals, contrary to ethics and delicadeza (January l6, 1993; and January
29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the
Supreme Court, or having a powerful politician as sponsor, citing specifically, the following
nominees to the Court of Appeals — Conrado Vasquez, Jr., son and namesake of the Ombudsman and
brother of the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew of Justice
Relova and cousin of Chief Justice Narvasa;" and the fact that nomination of some worthy
individuals was blocked because they "incurred the ire of the powers that be," e.g., Judge Maximiano
Asuncion, Quezon City RTC, and Raul Victorino, closely identified with former Senate President
Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August
27, 1992, in the so-called "controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone
Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor
of the petitioner PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which
has recently been resolved.
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers
published, on January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in
linguistics. This gentleman, it appears, had been commissioned by one of the parties in the case, Eastern Telephone
Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a few of his
prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had
been written, in whole or in part, by the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks,
reads and sounds like the writing of the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and
the Supreme Court itself, much of it unfavorable. There were calls for impeachment of the justices, for resignation of
judges. There were insistent and more widespread reiterations of denunciations of incompetence and corruption in the
judiciary. Another derogatory epithet for judges was coined and quickly gained currency: "Hoodlums in Robes."
It was at about this time and under these circumstances — particularly the furor caused by the Yerkes opinion that the
PLDT decision was authored by a PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an item
entitled, "Who will judge the Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong
Kong some time last year — and that luxurious hotel accommodations and all their other expenses were paid by a
pubic utility firm . . . and that the trip . . . was arranged by the travel agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine
Long Distance Telephone Company), addressed a letter to the Chief Justice, submitting his sworn statement in
confutation of "the item in the column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly
taken by six Justices with their families last year," and requesting that the Court "take such action as may be
appropriate." In his affidavit, Samson made the following averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to
the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr.
Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern
Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the
innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in
fact was the impression or perception of those who talked to me and the other officers of the PLDT
after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice,
since the motions for reconsideration filed by the losing litigants therein, Eastern
Telecommunications Philippines, Inc. and NTC are still pending before the Court, we have tried to
refrain from making any public comments on these matters, lest any statement we make be
interpreted to be an attempt on our part to unduly influence the final decision of the Supreme Court in
the above described case. However in the interest of truth and justice, PLDT is compelled to
emphatically and categorically declare that it is not the public utility firm referred to in the Jurado
column and that specifically, it has never paid for any such trip, hotel or other accommodations for
any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It
is not even aware that any of the justices or their families have made the trip referred to in the Jurado
column;
5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or
any other responsible officer of PLDT about the matter quoted in par. 2 hereof;
6. PLDT further emphatically and categorically denies that it had ever talked to or made
arrangements with any travel agency or any person or entity in connection with any such alleged trip
of the Justices and their families to Hongkong, much less paid anything therefor to such agencies,
fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other
accommodations of its officers and employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.
The records of these travel agencies will bear out the fact that no arrangements were made by them
at the instance of PLDT for the trip referred to in the Jurado column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of
Equitable Banking Corporation since 1958," subscribed and sworn to on February 10, 1993, in relation to another
article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had "hosted a lunch party at the Officers'
Lounge, 7th Floor of the Equitable Banking Corporation Building, Ermita Branch . . . upon prior permission . . .
obtained;" that the "expenses for said party were exclusively from my personal funds and the food was prepared in my
house by my wife and served by my house help . . . and four (4) waiters . . . hired from the nearby Barrio Fiesta
Restaurant;" that among the invited guests "were members of the Supreme Court and Court of Appeals who . . . were
my friends of forty years since our days in law school;" and that the party was held in the lounge of the bank instead
of in "my residence" "unlike in former years . . . because my birthday happened to fall on a working day and my
friends from the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from
down town."
However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of
January 12 and 28, 1993) as having been "hosted (by the Equitable Bank) at its penthouse mainly for some justices,
judges, prosecutors and law practitioners. . . ." And upon this premise, Jurado indulged in the following pontification:
"When those in the judiciary fraternize this way, what chances before the courts do other lawyers, who are not "batang
club," have against others who belong to the fraternity? In the case of prosecutors and fiscals, what chances do
opposing counsels have against those in the fraternity?" (column of January 12, 1993)
c. Information from Ad Hoc Committee
At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order
No. 11-93) to the following effect:
1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an
invitation to Atty. Emiliano Jurado to appear before it "at 2 o'clock in the afternoon of February 4,
1993 . . . (to) give the committee information that will assist it in its task," i.e., to definitely and
accurately determine the facts as regards the published rumors and reports of corruption in the
judiciary;
2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the
latter failed to appear at the time and place indicated; that instead, in his column in the issue of
Manila Standard of February 4, 1993, Jurado stated that he was told he was being summoned by
theAd Hoc Committee, but "(t)here is really no need to summon me. The committee can go by the
many things I have written in my column about corruption in the judiciary. Many of these column
items have been borne out by subsequent events."
3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the
Committee's invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its
session of February 4, 1992. All indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best positioned to assist the Ad
HocCommittee in its function of obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the
misfits in its ranks, and we believe you will want to help the Court do precisely that, by furnishing
the Committee with competent evidence, testimonial or otherwise. Clearly, the purging process
cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize, being
yourself a lawyer.
We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is
simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to
maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an
adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions,
on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court
itself, in which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-
gathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court
which will then take such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice
Hilario G. Davide, Jr. will preside as Chairman at these hearings since I will be unable to do so in
view of earlier commitments. We reiterate our invitation that you come before the Committee, and
you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard,
Jurado still failed to appear.
4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly
DOCKETED, and hereafter considered and acted upon as an official Court proceeding for the
determination of whether or not the allegations made by Atty. Emil Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of
Atty. William Veto to Atty. Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area,
Manila; and copies of the same PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince
Tower Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart
Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;
3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT
letter and affidavit, the Philway Travel Corporations and the Citi-World Travel Mart Corporation
each FILE A SWORN STATEMENT affirming or denying the contents of the PLDT affidavit; and
4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said
PLDT letter and affidavit and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on
said affidavits as well as the allegations made by him in his columns, herein specified, in which he
shall make known to the Court the factual or evidentiary bases of said allegations.
b. Jurado's Comment dated
March 1, 1993.
As directed, Jurado filed his comment, dated March 1, 1993.
He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate
in any investigation on corruption in the judiciary as this was what "his columns have always wanted to provoke."
What had happened, according to him, was that the first invitation of the Ad Hoc Committee was routed to his desk at
the Manila Standard office on the day of the hearing itself, when it was already impossible to cancel previous
professional and business appointments; and the second invitation, "if it was ever received" by his office, was never
routed to him; and he had yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely
apologizes."
He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on
what he had written. He expressed his firm belief that justice can be administered only by a judicial system that is
itself just and incorruptible, and the hope that this Court would view his response in this light.
He also made the following specific observations:
1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the
affiant's belief and opinion and he (Jurado) would not comment on it except to say that while Mr.
Samson is entitled to his beliefs and opinions, these "bind only him and the PLDT."
2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence,
further substantiation would be surplusage. In fact, the Supreme Court had confirmed the story in its
press statement quoted by him (Jurado) in his January 30, 1993 column. His column about the Veto
party constitutes fair comment on the public conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge
Teresita Dy-Liaco Flores on the actuations of Judge de la Rosa and called the attention of the Court
thereto, Judge Flores' complaint, a copy of which had been sent to the Court Administrator, being on
meriting its attention.
4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on
seven (7) Makati judges authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU,
South CAPCOM, PNP, addressed to Vice-President Joseph E. Estrada, a copy of which he had
 received in the news room of the Manila Standard. The existence of the report had been affirmed by a
reporter of the Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad
HocCommittee on January 11, 1993.
5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives
in the Judicial and Bar Council echo the public perception, and constitute fair comment on a matter
of great public interest and concern.
6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTC-
Makati's Dirty Dozen" (October 2, 1992, November 9, 1992, and December 1, 1992); the
"Magnificent Seven" in the Supreme Court (February 3,1993); 12 the lady secretary of an RTC Judge
(October 27, 1992); and the former Court of Appeals Justice "fixing" cases (January 29, 1993) were
all based on information given to him in strict confidence by sources he takes to be highly reliable
and credible; and he could not elaborate on the factual and evidentiary basis of the information
without endangering his sources.
By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but
also on information from sources he has found by experience to be trustworthy. He cannot
compromise these sources. He invokes Republic Act No. 53, as amended by R.A. No. 1477,
exempting the publisher, editor or reporter of any publication from revealing the source of published
news or information obtained in confidence, and points out that none of the matters subject of his
columns has any bearing on the security of the state.
c. Resolution of March 2, 1993
Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the
Court received the affidavits of the executive officials of the two travel agencies mentioned in the affidavit of PLDT
Executive Vice-President Vicente R. Samson — in relation to the Jurado column of February 8, 1993: that of Mr.
Ermin Garcia, Jr., President of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that of Mrs.
Marissa de la Paz, General Manager of Philway Travel Corporation, dated February 19, 1993. Both denied ever
having made any travel arrangements for any of the Justices of the Supreme Court or their families to Hongkong,
clearly and categorically belying the Jurado article.
By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that
he submit comment thereon, if desired, within ten (10) days from receipt thereof.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15,
1993. In this pleading he alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are
affirmations of matters of their own personal knowledge; that he (Jurado) had no specific knowledge of "the contents
of these, let alone their veracity;" and that the affidavits "bind no one except the affiants and possibly the PLDT." He
also sought clarification on two points — as to the capacity in which he is being cited in these administrative
proceedings — whether "as full time journalist or as a member of the bar," and why he is being singled out, from all
his other colleagues in media who had also written about wrongdoings in the judiciary, and required to comment in a
specific administrative matter before the Court sitting En Banc — so that he might "qualify his comment and/or assert
his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the
Resolutions of February 16 and March 2, 1993 had been addressed to him (according to his own depiction) in his
capacity as "a full-time journalist" "who coincidentally happens to be a member of the bar at the same time," and
granted him fifteen (15) days from notice" to qualify his comment and/or assert his rights and privileges . . . in an
appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the
proceeding on the following posited premises:
 1. The court has no administrative supervision over him as a member of the press or over his work as
a journalist.
2. The present administrative matter is not a citation for (a) direct contempt as there is no pending
case or proceeding out of which a direct contempt charge against him may arise, or (b) indirect
contempt as no formal charge for the same has been laid before the court in accordance with Section
3 (Rule 71) of the Rules of Court.
3. His comments would be more relevant and helpful to the Court if taken together with the other
evidence and reports of other journalists gathered before the Ad Hoc Committee. He perceives no
reason why his comments should be singled out and taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if
any, for the above mentioned statements published by him, as well as "such action as may be appropriate" in the
premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional
guarantee of free speech and the reality that there are fundamental and equally important public interests which need
on occasion to be balanced against and accommodated with one and the other. There, the Court stressed the
importance of the public interest in the maintenance of the integrity and orderly functioning of the administration of
justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right
of free speech. He also invokes the related doctrines of qualified privileged communications and fair
criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny
him that right, least of all this Court. What respondent seems unaware of is that freedom of speech
and of expression, like all constitutional freedoms, is not absolute and that freedom of expression
needs on occasion to be adjusted to and accommodated with the requirements of equally important
public interests. One of these fundamental public interests is the maintenance of the integrity and
orderly functioning of the administration of justice. There is no antinomy between free expression
and the integrity of the system of administering justice. For the protection and maintenance of
freedom of expression itself can be secured only within the context of a functioning and orderly
system of dispensing justice, within the context, in other words, of viable independent institutions for
delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other; both are
indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. And one of the potent means
for assuring judges their independence is a free press. (Concurring in Pennekamp v.
Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This constitutional
right must be protected in its fullest extent. The Court has heretofore given evidence
of its tolerant regard for charges under the Libel Law which come dangerously close
to its violation. We shall continue in this chosen path. The liberty of the citizens
must be preserved in all of its completeness. But license or abuse of liberty of the
press and of the citizens should not be confused with liberty in its true sense. As
important as is the maintenance of an unmuzzled press and the free exercise of the
rights of the citizens is the maintenance of the independence of the Judiciary.
Respect for the Judiciary cannot be had if persons are privileged to scorn a
 resolution of the court adopted for good purposes, and if such persons are to be
permitted by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the court. (In Re Severino
Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or
otherwise,viz.:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant
principles which must be deemed always implied in any system of law." 14 It parallels too "the supreme norms of
justice which the law develops" and which are expressed in three familiar Latin maxims: honeste vivere, alterum non
laedere and jus suum quique tribuere (to live honorably, not to injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in
the Constitution. But every person exercising it is, as the Civil Code stresses, obliged "to act with justice, give
everyone his due, and observe honesty and good faith." The constitutional right of freedom of expression may not be
availed of to broadcast lies or half-truths — this would not be "to observe honesty and good faith;" it may not be used
to insult others; destroy their name or reputation or bring them into disrepute. — this would not be "to act with
justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid
down in "The Philippine Journalist's Code of Ethics." The Code was published in the issue of February 11, 1993 of the
Manila Standard, for which Jurado writes, as part of the paper's "Anniversary Supplement." The first paragraph of the
Code, 16 and its corresponding annotations, read as follows:
1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to
distort the truth by improper omission or emphasis. I recognize the duty to air the other side and the
duty to correct substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required. Relying exclusively on
the telephone or on what fellow reporters say happened at one's beat is
irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please
benefactors. He gathers all the facts, forms a hypothesis, verifies it and arrives at an
honest interpretation of what happened.
3. The duty to air the other side means that the journalist must contact the person or
persons against whom accusations are lodged. A court proceeding provides for this
balance by presenting the prosecution and then the defense. A news story or
editorial column that fails to present the other side is like a court that does not hear
the side of the defense.
4. Correcting substantive errors is the mark of mature newspapers like the New York
Times, the International Herald Tribune, and some of Manila's papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the
right to private reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting
themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than
are commonly required from private persons. 17 Nevertheless, persons who seek or accept from appointment to the
Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and
reputation. For so to rule will be simply, in the generality of cases, to discourage all save those who feel no need to
maintain their self-respect as a human being in society, from becoming judges, with obviously grievous consequences
for the quality of our judges and the quality of the justice that they will dispense. Thus, the protection of the right of
individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in
identifying and laying down the norms concerning the exercise of press freedom and free speech.
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all
other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other.
And the point of adjustment or accommodation between these two legitimate interest is precisely found in the norm
which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to
identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they
publish. The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm
does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without
any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or
adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and
the Code of Ethics adopted by the journalism profession in the Philippines. 17a
6. Analysis of Jurado Columns
a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 — "that six justices, their spouses, children and
grandchildren (a total of 36 persons) spent a vacation in Hong Kong some time last year — and that luxurious hotel
accommodations and all their other expenses were paid by a public utility firm and that the trip reportedly was
arranged by the travel agency patronized by this public utility firm," supra is — in the context of the facts under
which it was made — easily and quickly perceived as a transparent accusation that the PLDT had bribed or
"rewarded" six (6) justices for their votes in its favor in the case of "Philippine Long Distance Telephone Company v.
Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only paying all their expenses — i.e.,hotel
accommodations and all other expenses for the trip — but also by having one of its own travel agencies arrange for
such a trip.
As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of
its responsible officers, Mr. Vicente Samson, as well as by the heads of the two (2) travel agencies "patronized by it,"
Ermin Garcia, Jr. and Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or
showing that it had been made through some honest mistake or error committed despite good faith efforts to arrive at
the truth, or if unable to do either of these things, to offer to atone for the harm caused.
But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in
any manner whatever the emphatic declaration of PLDT Vice-President Samson that —
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to
the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr.
Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern
Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the
innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in
fact was the impression or perception of those who talked to me and the other officers of the PLDT
after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion
that:
. . . (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the
Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware
that any of the justices or their families have made the trip referred to in the Jurado column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other
responsible officer of PLDT about the matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any person or entity
in connection with any such alleged trip of the Justices and their families to Hongkong, much less
 paid anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2
hereinabove;
What appears from the record is that without first having made an effort to talk to any one from the PLDT or the
Supreme Court to ascertain the veracity of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the
affidavits of the heads of the two travel agencies regularly patronized by it, were just assertions of the affiants' belief
and opinion; and that he (Jurado) would not comment on them except to say that while they are entitled to their beliefs
and opinions, these were binding on them only. This is upon its face evasion of duty of the most cavalier kind;
sophistry of the most arrant sort. What is made plain is that Jurado is in truth unable to challenge any of the averments
in the affidavits of PLDT and its travel agencies, or otherwise substantiate his accusation, and that his is a mere resort
to semantics to justify the unjustifiable. What is made plain is that his accusation is false, and possesses not even the
saving grace of honest error.
If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then
indulging in pure speculation or gossip is even more so; and a failure to "present the other side" is equally
reprehensible, being what in law amounts to a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto
(the "in-house counsel of Equitable Banking Corporation since 1958") as to project a completely false depiction of it.
His description of that affair (in the Manila Standard issues of January 12 and 28, 1993) as having been hosted by the
Equitable Bank "at its penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the rhetorical question about how such
fraternization affects the chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the
food having been prepared by his wife in his house, and served by his house help and waiters privately hired by him;
that he had invited many persons including friends of long standing, among them justices of the Supreme Court and
the Court of Appeals; and that the party had been held in the Officers' Lounge of Equitable Bank, instead of his home,
as in years past, to suit the convenience of his guests because his birthday fell on a working day, Jurado could not, or
would not deign to, contradict any of those statements. He merely stated that Veto's affidavit substantially
corroborated what he had written in vital details, which is obviously far from correct.
Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or
anyone in Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would
quickly have learned that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was
gravely at fault — at the very least for disregarding the Journalist's Code of Ethics — in failing to exertbona
fide efforts to verify the accuracy of his information.
In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His
proffered explanation that the justices having confirmed their presence at the luncheon, thus corroborating what he
had written in vital details and making further substantiation unnecessary, and that his report constituted fair comment
on the public conduct of public officers, obviously does not at all explain why a party given by Atty. Vetowas reported
by him as one tendered by Equitable Bank. The only conclusion that may rationally be drawn from these
circumstances is that Jurado, unable to advance any plausible reason for the conspicuous divergence between what in
fact transpired and what he reported, again resorts to semantics and sophistry to attempt an explanation of the
unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the news; on the
contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent
for it, and his playing up of the Bank's supposed role as such host have resulted in an improper suppression of those
facts and a gross distortion of the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of
February 3, 1993 already adverted to, 19 and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring
to. Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug
 related cases. The "Magnificent Seven" in the Supreme Court consists of a group of justices who vote
as one."
About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes
of the Supreme Court Reports Annotated (SCRA) in which are reported the decisions of the Supreme Court En
Banc for the year 1992 (January to December) and for January 1993, divulge not a single non-unanimous decision or
resolution where seven (7) justices voted "as one," nor any group of decisions or resolutions where the recorded votes
would even suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by
invoking unnamed and confidential sources which he claims he considers highly credible and reliable and which
would be imperiled by elaborating on the information furnished by them. He would justify reliance on those sources
on grounds of necessity, custom and usage and claim the protection of Republic Act No. 53, as amended by Republic
Act No. 1477 from forced, revelation of confidential news sources except when demanded by the security of the
state. 20
Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that
a newsman may escape liability who publishes derogatory or defamatory allegations against a person or entity, but
recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit
proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness
all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to
influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or
institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so
would compromise his sources and demanding acceptance of his word for the reliability of those sources.
Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has
already been stated about the nature and content of those writings, it is necessary to do so briefly in order not only to
stress the gravity he makes, but also to demonstrate that his response to the call for their substantiation has been one
of unvarying intransigence: an advertance to confidential sources with whose reliability he professes satisfaction and
whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character — not only to the Court of Appeals, but also to the
judiciary in general — of his columns of November 9, 1992 and January 29, 1993 concerning an unnamed former
justice of the Court of Appeals who had allegedly turned "fixer" for five of the Court's divisions and who, for the right
price, could guarantee that a party's lawyer could write his own decision for and in the name of the ponente; and of his
column of March 24, 1993 to the effect that anywhere from P30,000 to P50,000 could buy a temporary restraining
order from a regional trial court in Manila.
The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid"
for decisions favoring drug-traffickers and other big-time criminals was based on nothing more than
raw intelligence contained is confidential police report. It does not appear that any part of that report
has been reliably confirmed.
(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this
proceeding, for his report of October 27, 1992 concerning an unnamed lady secretary of a Makati
RTC Judge who, besides earning at least P10,000 for making sure a case is raffled off to a
"sympathetic" judge, can also arrange the issuance of attachments and injunctions for a fee of one
(1%) percent over and above usual premium for the attachment or injunction bond, a fee that in one
instance amounted to P300,000.
(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary
to ethics and delicadeza in nominating to the Court of Appeals a son and a nephew of its members is
completely untrue. The most cursory review of the records of the Council will show that since its
organization in 1987, there has not been a single instance of any son or nephew of a member of the
Council being nominated to the Court of Appeals during said member's incumbency; and in this
connection, he mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of
Justice (and then Member of the Judicial and Bar Council) Lorenzo Relova when the truth, which he
subsequently learned and admitted, was that the person referred to was Judge Joselito de la Rosa, the
son-in-law, not the nephew, of Justice Relova. Had he bothered to make any further verification, he
would have learned that at all sessions of the Council where the nomination of Judge Joselito de la
Rosa was considered, Justice Relova not only declined to take part in the deliberations, but actually
left the conference room; and he would also have learned that Judge Rosalio de la Rosa had never
been nominated — indeed, to this date, he has not been nominated to the Court of Appeals.
(d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made
nominations to the Court of Appeals on considerations other than of merit or fitness, through the
manipulations of the Council's Secretary, Atty. Daniel Martinez; or because the nominee happens to
be a relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as Judge
Rosalio de la Rosa) or of the Supreme Court (he could name none so situated); or has powerful
political sponsor (referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the
Ombudsman). Acceptance of the truth of these statements is precluded, not only by the familiar and
established presumption of regularity in the performance of official functions, but also, and even
more conclusively by the records of the Judicial and Bar Council itself, which attest to the
qualifications of Atty. Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la
Rosa, and Judge Conrado Vasquez, Jr., for membership in the Appellate Tribunal;
(e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of
Appeals of some worthy individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty.
Raul Victorino (who was closely identified with former Senate President Salonga) had been blocked
because they had "incurred the ire of the powers that be," the truth, which could very easily have
been verified, being that a pending administrative case against Judge Asuncion had stood in the way
of his nomination, and since Mr. Victorino had been sponsored or recommended by then Senate
President Salonga himself, the fact that he was not nominated can hardly be attributed to the hostility
or opposition of persons in positions of power or influence.
(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about
Executive Judge Rosalio de la Rosa of the Manila Regional Trial Court as:
(1) having been nominated to the Court of Appeals by the Judicial and Bar Council
chiefly, if not only, by reason of being the nephew of Justice Relova and the cousin
of Chief Justice Narvasa, the truth, as already pointed out, being that
Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals,
the nominee having been Judge Joselito de la Rosa, the son-in-law (not nephew) of
Justice Relova; and
(2) having discarded the rule that cases seeking provisional remedies should be
raffled off to the judges (column of January 28, 1993) and adopted a system of
farming out applications for temporary restraining orders, etc., among all the
branches of the court; here again, Jurado is shown to have written without thinking,
and made statements without verifying the accuracy of his information or seeking
the views of the subject of his pejorative statements; the merest inquiry would have
revealed to him that while Circular No. 7 dated September 23, 1974 requires that no
case may be assigned in multi-sala courts without raffle (for purposes of disposition
on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par.
IV), 21 empowers Executive Judges to act on all applications for provisional
remedies (attachments, injunctions, or temporary restraining orders, receiverships,
etc.), or on interlocutory matters before raffle, in order to "balance the workload
among courts and judges, (Sec. l, par. 2, id.), and exercise such other powers and
prerogatives as may in his judgment be necessary or incidental to the performance of
his functions as a Court Administrator" (Sec. 7, par. 1, id.) — these provisions being
broad enough, not only to authorize unilateral action by the Executive Judge himself
on provisional remedies and interlocutory matters even prior to raffle of the main
case, but also to delegate the authority to act thereon to other judges.
Jurado does not explain why: (1) he made no effort to verify the state of the rules on
the matter; (2) he precipitately assumed that the views of Judge Teresita Dy-Liaco
Flores, whose complaint on the subject he claims he merely summarized, were
 necessarily correct and the acts of Judge de la Rosa necessarily wrong or improper;
and (3) he did not try to get Judge de la Rosa's side at all.
Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of
their objective truth; the abdication of the journalist's duty to report and interpret the news with scrupulous
fairness; and the breach of the law's injunction that a person act with justice, give everyone his due and
observe honesty and good faith both in the exercise of his rights and in the performance of his duties.
7. Jurado's Proffered Excuses
and Defenses
The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is
obviously unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of
press freedom earlier set forth in this opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to
the familiar principle reiterated inter alia in Zaldivar v. Gonzales: 23
. . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of
justice the conduct of ministerial officers of the Court including lawyers and all other persons
connected in any manner with a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In
re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567
[1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary
for its own protection against improper interference with the due administration of justice," "(i)t is
not dependent upon the complaint of any of the parties litigant" (Halili v. Court of Industrial
Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy,
38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras
Teehankee v. Director of Prisons, 76 Phil. 630 [1946]).
Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a
respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring
them into disrepute, even when made after the trial stage or after the end of the proceedings. The original doctrine laid
down in People vs. Alarcon 24 — that there is no contempt if there is no pending case — has been abandoned in
subsequent rulings of this Court which have since adopted the Moran dissent therein, 25 viz.:
Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A
publication which tends to impede, obstruct, embarrass or influence the courts in administering
justice in a pending suit or proceeding, constitutes criminal contempt which is summarily punishable
by courts. This is the rule announced in the cases relied upon by the majority. A publication which
tends to degrade the courts and to destroy public confidence in them or that which tends to bring
them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by
courts. In the language of the majority, what is sought, in the first kind of contempt, to be shielded
against the influence of newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice
is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or
to destroy public confidence in them. In the first, there is no contempt where there is no action
pending, as there is no decision which might in any be influenced by the newspaper publication. In
the second, the contempt exists, with or without a pending case, as what is sought to be protected is
the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility if public
confidence in them is destroyed.
The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct
contempt, there being no pending case or proceeding out of which a charge of direct contempt against him may arise;
this, even without regard to the fact that the statements made by him about sojourn in Hongkong of six Justices of the
Supreme Court were clearly in relation to a case involving two (2) public utility companies, then pending in this
Court. 26
His theory that there is no formal charge against him is specious. His published statements about that alleged trip are
branded as false in no uncertain terms by the sworn statement and letter of Vice-President Vicente R. Samson of the
Philippine Long Distance Telephone Company which:
 (a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel
agency, or with the two travel agencies it patronized or retained, or paid anything, on account of such
alleged trip;
(b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . .
(had) made the trip referred to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor
anyone in his behalf has ever spoken to . . . (said Mr. Samson) or any other responsible officer of
PLDT about the matter . . .; and
(c) beseech the Court to "take such action (on the matter) as may be appropriate.
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth
of Jurado's allegations about it; and
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him
(which Jurado reported as one given by Equitable Bank) and that Jurado file comment on said affidavits as well as
allegations in specified columns of his. Jurado was also furnished copies of the affidavits later submitted by the two
travel agencies mentioned in Samson's statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account for his published statements about the matters
referred to, and that action would be taken thereon against him as "may be appropriate." That that was in fact how he
understood it is evident from his submitted defenses, denying or negativing liability for contempt, direct indirect.
Indeed, as journalist of no little experience and a lawyer to boot, he cannot credibly claim an inability to understand
the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over
his work as a journalist, and asks why he is being singled out, and, by being required to submit to a separate
administrative proceeding, treated differently than his other colleagues in media who were only asked to explain their
reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon all that
has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation
which tend to put it in disrepute, obstruct the administration of justice, or interfere with the disposition of its business
or the performance of its functions in an orderly manner. Jurado has not been singled out. What has happened is that
there have been brought before the Court, formally and in due course, sworn statements branding his reports as lies
and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their
publication.
Jurado would have the Court clarify in what capacity — whether a journalist, or as a member of the bar — he has
been cited in these proceeding. Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is
being called to account as a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to
sanctions as journalist who has misused and abused press freedom to put the judiciary in clear and present to the
danger of disrepute and of public obdium and opprobrium, detriment and prejudice of the administration of justice.
That he is at the same time a member of the bar has nothing to do with the setting in of those sanctions, although it
may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here:
Respondent expresses perplexity at being called to account for the publications in question in his
capacity as a member of the bar, not as a journalist. The distinction is meaningless, since as the
matter stands, he has failed to justify his actuations in either capacity, and there is no question of the
Court's authority to call him to task either as a newsman or as a lawyer. What respondent proposes is
that in considering his actions, the Court judge them only as those of a member of the press and
disregard the fact that he is also a lawyer. But his actions cannot be put into such neat compartments.
In the natural order of things, a person's acts are determined by, and reflect, the sum total of his
knowledge, training and experience. In the case of respondent in particular the Court will take
judicial notice of the frequent appearance in his regular columns of comments and observations
utilizing legal language and argument, bearing witness to the fact that in pursuing his craft as a
journalist he calls upon his knowledge as a lawyer to help inform and influence his readers and
enhance his credibility. Even absent this circumstance, respondent cannot honestly assert that in
exercising his profession as journalist he does not somehow, consciously or unconsciously, draw
upon his legal knowledge and training. It is thus not realistic, nor perhaps even possible, to come to
 fair, informed and intelligent judgment of respondent's actuations by divorcing from consideration
the fact that he is a lawyer as well as a newspaperman, even supposing, which is not the case — that
he may thereby be found without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his
actions be judged solely as those of a newspaperman unburdened by the duties and responsibilities
peculiar to the law profession of which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to
purge Jurado's conduct of any taint of contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the
proceedings at bar but also the basic issues involved.
The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad
HocCommittee in response to two (2) letters of invitation issued to him, that compelled the Court to order the matter
to be docketed on February 16, 1993 and to require respondent Jurado to file his Comment. This is not the case at all.
As is made clear in Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these proceedings was not Jurado's
refusal to appear and give evidence before the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty.
William Veto, supported by affidavits, denouncing certain of his stories as false, 28 with the formerpraying that the
Court take such action as may be appropriate. And it was precisely "the matter dealt with in the letter and affidavit of
the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter considered and acted upon as an official
Court proceeding;" this, by Resolution dated February 16, 1993; the Court also requiring, in the same Resolution,
"that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to
Atty. Emil Jurado . . .," and that Jurado should comment thereon "as well as (on) the allegations made by him in his
columns, herein specified" — because of explicit claims, and indications of the falsity or, inaccuracy thereof.
There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise:
(1) the right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations,"
and (2) their right "not to reveal confidential sources of information under R.A. No. 53, as amended" — which are not
really involved here — in respect of which it is theorized that the majority opinion will have an inhibiting effect on
newsmen's confidential sources of information, and thereby abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance
of any such or similar processes, or any punitive measures for disobedience thereto, intended or even contemplated.
Like most witnesses who gave evidence before the Committee, Jurado was merely invited to appear before it to give
information in aid of its assigned task of ascertaining the truth concerning persistent rumors and reports about
corruption in the judiciary. When he declined to accept the invitations, the Ad Hoc Committee took no action save to
inform the Court thereof; and the Court itself also took no action. There is thus absolutely no occasion to ascribe to
that investigation and the invitation to appear thereat a "chilling effect" on the by and large "hard-boiled" and self-
assured members of the media fraternity. If at all, the patience and forbearance of the Court, despite the indifference of
some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering on defiant
insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to
and served on Jurado, his unexplained failure to obey the same would prima facie constitute constructive contempt
under Section 3, Rule 71 of the Rules of Court. It should be obvious that a journalist may not refuse to appear at all as
required by a subpoena on the bare plea that under R.A. No 53, he may not be compelled to disclose the source of his
information. For until he knows what questions will be put to him as witness — for which his presence has been
compelled — the relevance of R.A. No. 53 cannot be ascertained. His duty is clear. He must obey the subpoena. He
must appear at the appointed place, date and hour, ready to answer questions, and he may invoke the protection of the
statute only at the appropriate time.
b. The Actual Issue
The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to
him, and the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its
invitations. The issue, as set out in the opening sentence of this opinion, essentially concerns "(l)iability for published
statements demonstrably false or misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear
and give testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he
publishes, but to exercise honest and reasonable efforts to determine the truth of defamatory statements before
publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and
defamatory of the judiciary — stories that he made no effort whatsoever to verify and which, after being denounced as
lies, he has refused, or is unable, to substantiate.
c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources
confidential; that he cannot be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of
the State demands such revelation. But it does hold that he cannot invoke such right as a shield against liability for
printing stories that are untrue and derogatory of the courts, or others. The ruling, in other words, is that when called
to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate
their truthfulness or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so
would require such disclosure. In the latter event, however, he must be ready to accept the consequences of publishing
untruthful or misleading stories the truth and accuracy of which he is unwilling or made no bona fide effort to prove;
for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is "without prejudice to . . .
liability under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that
the publication of any news report or information which was "related in confidence" to the journalist is not actionable;
such circumstance (of confidentiality) does not purge, the publication of its character as defamatory, if indeed it be
such, and actionable on that ground. All it does is give the journalist the right to refuse (or not to be compelled) to
reveal the source of any news report published by him which was revealed to him in confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y
received a bribe of P1M each for their votes in such and such a case, or that a certain Judge maintains a mistress, and
when called to account for such statements, absolve himself by claiming immunity under R.A. 53, or invoking press
freedom.
d. A Word about "Group Libel"
There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of
unscrupulous newsmen who can malign any number of anonymous members of a common profession, calling or
persuasion, thereby putting an entire institution — like the judiciary in this case — in peril of public contumely and
mistrust without serious risk of being sued for defamation. The preceding discussions have revealed Jurado's
predilection for, if not his normal practice of, refusing to specifically identify or render identifiable the persons he
maligns. Thus, he speaks of the "Magnificent Seven," by merely referring to undisclosed regional trial court judges in
Makati; the "Magnificent Seven" in the Supreme Court, as some undesignated justices who supposedly vote as one;
the "Dirty Dozen," as unidentified trial judges in Makati and three other cities. He adverts to an anonymous group of
justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who reportedly
spent a prepaid vacation in Hong Kong with their families. This resort to generalities and ambiguities is an old and
familiar but reprehensible expedient of newsmongers to avoid criminal sanctions since the American doctrine of group
libel is of restricted application in this jurisdiction. For want of a definitely identified or satisfactorily identifiable
victim, there is generally no actionable libel, but such a craven publication inevitably succeeds in putting all the
members of the judiciary thus all together referred to under a cloud of suspicion. A veteran journalist and lawyer of
long standing that he is, Jurado could not have been unaware of the foregoing realities and consequences.
e. Substantiation of News Report
 Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him
would necessarily negate or dilute his right to refuse disclosure of its source. The argument will not stand scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or
immunity whatsoever.
If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If
the first, the journalist's duty is clear: ascertain, if not obtain, the evidence by which the information may be
verified before publishing the same; and if thereafter called to account therefor, present such evidence and in the
process afford the party adversely affected thereby opportunity to dispute the information or show it to be false.
If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious
reasons. It would be unfair to the subject of the report, who would be without means of refuting the imputations
against him. And it would afford an unscrupulous journalist a ready device by which to smear third parties without the
obligation to substantiate his imputations by merely claiming that the information had been given to him "in
confidence".
It is suggested that there is another face to the privileged character of a journalist's source of information than merely
the protection of the journalist, and that it is intended to protect also the source itself. What clearly is implied is that
journalist may not reveal his source without the latter's clearance or consent. This totally overlooks the fact that the
object of a derogatory publication has at least an equal right to know the source thereof and, if indeed traduced, to the
opportunity of obtaining just satisfaction from the traducer.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and
very pertinent, question of whether a journalist may put in print unverified information derogatory of the courts and
judges and yet remain immune from liability for contempt for refusing, when called upon, to demonstrate their truth
on the ground of press freedom or by simply claiming that he need not do so since (or if) it would compel him to
disclose the identity of his source or sources.
The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of
information transcends, and is greater than, his duty to the truth; and that, accordingly, he has no obligation
whatsoever to verify, or exercise bona fide efforts to verify, the information he is given or obtain the side of the party
adversely affected before he publishes the same.
True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be
overemphasized. But it is debatable if that role is well and truly filled by a press let loose to print what it will, without
reasonable restraints designed to assure the truth and accuracy of what is published. The value of information to a free
society is in direct proportion to the truth it contains. That value reduces to little or nothing when it is no longer
possible for the public to distinguish between truth and falsehood in news reports, and the courts are denied the
mechanisms by which to make reasonably sure that only the truth reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person are not shielded from sanction by the
cardinal right to free speech enshrined in the Constitution. Even the most liberal view of free speech has never
countenanced the publication of falsehoods, specially the persistent and unmitigated dissemination of patent lies. The
U.S. Supreme Court, 29 while asserting that "(u)nder the First Amendment there is no such thing as a false idea," and
that "(h)owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and
juries but on the competition of other ideas" (citing a passage from the first Inaugural Address of Thomas Jefferson),
nonetheless made the firm pronouncement that "there is no constitutional value in false statements of fact," and "the
erroneous statement of fact is not worthy of constitutional protection (although) . . . nevertheless inevitable in free
debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's interest in
"unhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed
2d 686, 95 ALR2d 1412. They belong to that category of utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed
1031, 62 S Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional
question. Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it
does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like
immunity. . . . (T)he knowingly false statement and the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in
fulfillment of a "legal, moral, or social duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled
that the guaranty of free speech cannot be considered as according protection to the disclosure of lies, gossip or
rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or
disloyal officers and employees thereof, where there is reasonable ground to believe that they fall
under this category. He had no legal right, much less duty, to gossip, or foster the circulation of
rumors, or jump at conclusions and more so if they are gratuitous or groundless. Otherwise, the
freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and
promoting the general welfare, would be a convenient excuse to engage in the vituperation of
individuals, for the attainment of private, selfish and vindictive ends, thereby hampering the
operation of the Government with. administrative investigations of charges preferred without any
color or appearance of truth and with no other probable effect than the harassment of the officer or
employee concerned, to the detriment of public service and public order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media
professionals, seems largely unfounded and should be inconsequential to the greater number of journalists in this
country who, by and large, out of considerations of truth, accuracy, and fair play, have commendably refrained from
ventilating what would otherwise be "sensational" or "high-visibility" stories. In merely seeking to infuse and
perpetuate the same attitude and sense of responsibility in all journalists, i.e., that there is a need to check out the truth
and correctness of information before publishing it, or that, on the other hand, recklessness and crass sensationalism
should be eschewed, this decision, surely, cannot have such "chilling effect," and no apprehension that it would deter
the determination of truth or the public exposure of wrong can reasonably be entertained.
The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only
with extremist liberalism. If it has done nothing else, this case has made clear the compelling necessity of the
guidelines and parameters elsewhere herein laid down. They are eminently reasonable, and no responsible journalist
should have cause to complain of difficulty in their observance.
10. Afterword
It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already
been earlier quoted, 32 and are as germane today as when they were first written more than fifty (50) years ago. 33
It may be said that respect to courts cannot be compelled and that public confidence should be a
tribute to judicial worth, virtue and intelligence. But compelling respect to courts is one thing and
denying the courts the power to vindicate themselves when outraged is another. I know of no
principle of law that authorizes with impunity a discontended citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and judges. If he believes that a
judge is corrupt and that justice has somewhere been perverted, law and order require that he follow
the processes provided by the Constitution and the statutes by instituting the corresponding
proceedings for impeachment or otherwise. . . .
xxx xxx xxx
It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This
suggestion has, however, no rational basis in principle. In the first place, the outrage is not directed to
the judge as a private individual but to the judge as such or to the court as an organ of the
administration of justice. In the second place, public interests will gravely suffer where the judge, as
such, will, from time to time, be pulled down and disrobed of his judicial authority to face his
 assailant on equal grounds and prosecute cases in his behalf as a private individual. The same reasons
of public policy which exempt a judge from civil liability in the exercise of his judicial functions,
most fundamental of which is the policy to confine his time exclusively to the discharge of his public
duties, applies here with equal, if not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v.
Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194). . .
.
Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to
factual accuracy and the injury that he might cause to the name and reputation of those of whom he wrote. They
constitute contempt of court, directly tending as they do to degrade or abase the administration of justice and the
judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable, decent and
responsible journalists who live by their Code or the "Golden Rule" and who strive at all times to maintain the
prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant
stance. "This is a fight I will not run from," he wrote in his column of March 21, 1993; and again, "I will not run away
from a good fight," in his column of March 23, 1993. Such an attitude discourages leniency, and leaves no choice save
the application of sanctions appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with
Section 6, Rule 71 of the Rules of Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).
IT IS SO ORDERED.
Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and Francisco, JJ., concur.
Vitug and Kapunan, JJ., took no part.

Separate Opinions

MELO, J., dissenting:

In making a choice between the preservation of liberties and freedom on one hand, and the attainment of a better —
ordered society, on the other, men have not stopped debating. The balance, the point of the weighing scale, has moved
hither and thither depending on the needs of the times and on the kind of government involved. But in democratic
governments, there must at all times be due regard for the preservation of constitutional rights even to the extent, at
times, of seemingly sacrificing, as in the case at hand, accurate and truthful media comment.
To be sure, fair, accurate, truthful reporting by the press is the hallmark and badge of a healthy and self-assured
society. But such ideal must not be purchased or achieved at the cost of press freedom itself but rather by caring for
and nurturing, cultivating, and promoting the growth of said freedom, impressing upon its practitioners due regard for
the truth and the entitlement of the public they serve to accurate reporting instead of the publication or airing of
private biases and jaundiced views.
It is thus even as I am personally disturbed by fallacious, specious, and at times downright false and deceitful
reporting and comments, meant only to promote private and selfish interests, I must extend my concurrence to the
well-written opinion of Justice Puno. For, as was said of old, when one rows through a sea of conflict between
restraint and freedom, one should hold both oars steadily, but always with the oar of freedom in the stronger hand, lest
an errant course be laid.
PUNO, J., dissenting:
The case at bench resolves several issues of critical importance to freedom of speech and of the press, thus: (1) the
right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations; (2) the
right of newsmen not to reveal confidential sources of information under R.A. No. 53, as amended; and (3) the test, to
be followed before a false or slanted report by a journalist can be adjudged as constitutive of contempt of court. It is
my humble submission that the majority opinion, even while heavily laden with wisdom, has too much of an
inhibiting effect on our newsmen's pen as to abridge their freedom of speech and of the press. I, therefore, dissent.
The facts are amply stated in the majority opinion. In 1992-93, unsavory news and commentaries about malpractices
in the judiciary, some of them outrightly vicious, appeared in the print and broadcast media. In reaction, Chief Justice
Andres R. Narvasa issued Administrative Order No. 11-93, dated January 25, 1993, "Creating an Ad Hoc Committee
to Investigate Reports of Corruption in the Judiciary." Its text reads:
WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified
reports respecting corruption in the judiciary, said rumors and reports not only having been
mentioned by media and in anonymous communications, but having also been adverted to by certain
government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted
composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon.
Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek
to ascertain the truthrespecting said reports and statements, and to this end, forthwith interview at
closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the
matter and who may be appealed to to share knowledge with the Court, and otherwise gather such
evidence as may be available. The Committee is hereby authorized to use such facilities and
personnel of the Court as may be necessary or convenient in the fulfillment of its assigned mission,
and shall submit its report to the Court within thirty (30) days. (Emphasis supplied)
The member of the Committee was immediately constituted. 1 From February 2, 1993 to April 16, 1993, the
Committee held twenty-four (24) closed-door sessions and interviewed seventy-one (71) witnesses who appeared to
have some knowledge of the subject of inquiry. 2
Among the persons invited by the Committees to appear was respondent Jurado. His first invitation was to appear on
February 4, 1993 to give the Committees information that will assist it in its task, i.e., to definitely and accurately
determine the facts as regards the published rumors and reports of corruption in the judiciary.
Respondent Jurado failed to honor the invitation. On February 5, 1993, the Committee reiterated its invitation,
couched in the following language:
xxx xxx xxx
It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its
session of February 4, 1993. All indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best positioned to assist the Ad
HocCommittee in its function of obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the
misfits in its ranks, and we believe you will want to help the Court to do precisely that, furnishing the
Committee with competent evidence, testimonial or otherwise. Clearly, the purging process cannot be
accomplished without proof, testimonial or otherwise, as you must no doubt realize, being yourself a
lawyer.
We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is
simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to
maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an
adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions,
on the basis of such proofs as may be presented to it. That functions is reserved to the Supreme Court
itself, in which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-
gathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court
which will then take such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice
Hilario G. Davide, Jr., will preside as Chairman at these hearings since I will be unable to do so in
view of earlier commitments. We reiterate our invitation that you come before the Committee, and
you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon.
(Emphasis supplied).
Again, respondent Jurado did not appear in the scheduled investigations. The Court ordered the matter to be docketed
on February 16, 1993 and respondent was asked to file his Comment on the PLDT letter and affidavit of Mr. Vicente
Samson and the affidavit of Atty. William Veto, the contents of which are related in the majority opinion.
Respondent Jurado submitted his Comment on March 1, 1993. By then, the Court has also received the affidavits of
Mr. Ermin Garcia of the City World Travel Mart Corporation and of Mrs. Marissa de la Paz of Philway Travel
Corporation traversing the column of February, 1993 of the respondent. On Orders of the Court, the respondent then
submitted a Supplemental Comment with Request for Clarification on March 15, 1993. Among other defenses,
respondent invoked R.A. No. 53, 3 as amended by R.A. No. 1477, which reads:
AN ACT AMENDING SECTION ONE OF REPUBLIC ACT NUMBERED FIFTY-THREE,
ENTITLED "AN ACT TO EXEMPT THE PUBLISHED, EDITOR, COLUMNIST OR REPORTER
OF ANY PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED NEWS OR
INFORMATION OBTAINED IN CONFIDENCE"
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Sec. 1. Section one of Republic Act Numbered Fifty-three is amended to read as follows:
Sec. 1. Without prejudice to his liability under the civil and criminal laws, the
publisher, editor columnist or duly accredited reporter of any newspaper, magazine
or periodical of general circulation cannot be compelled to reveal the source of any
news-report or information appearing in said publication which was related in
confidence to such publisher, editor or reporter unless the Court or a House or
committee of Congress finds that such revelation is demanded by the security of the
State.
Sec. 2. This Act shall take effect upon its approval.
Approved, June 15, 1956. (Emphasis supplied)
Upon these facts, the majority would hold respondent guilty of contempt of court.
In adjudging respondent in contempt of court, the majority attempted to establish an equilibrium between the
importance of a free press and the need to maintain the integrity and orderly functioning of the administration of
justice, the civil law duty to "act with justice, give everyone his due, and observe honesty and good faith," and the
right to private honor and reputation. The majority tilted the balance against freedom of the press and respondent
Jurado after finding that some of his columns were either false or slanted as he made no effort to verify them before
their publication.
How to strike a balance that will accommodate equally compelling yet competing State interests has divided men of
stratospheric intellect. Until the fast decibel of time, and while man continues to be bereft of infallibility, the best of
minds will continue with their search for the elusive variables that will correctly tilt the balance between press
freedom and other freedoms. Thus, with high respect to my learned colleagues in the majority, I beg to differ with
their conclusion on where to fix the elusive balance in the case at bench.
A brief revisit of the history of the struggle to protect freedom of the press ought to be enlightening. It will remind us
that freedom of speech and freedom of the press 4 are preferred right 5 for they are indispensable preconditions for the
exercise of other freedoms. 6 Their status as the cornerstone of our liberties followed the shift of sovereignty from
monarchs to the masses — the people.7 For the people to be truly sovereign, they must be capable of rendering
enlightened judgments and they cannot acquire this capability unless they have an unclogged access to information,
the main pipeline of which is the press. Early enough, Madison had the prescience to warn that "a popular government
without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both." 8
The history of press freedom will also reveal that while its importance has been given lip service, its unabridged
exercise was not won without a costly struggle. Ironically, the attempts to restrict the newsmen's pen came from
government itself. The attempts were disguised in different insidious
forms. 9 They came as sedition laws which sent newsmen behind bars. They came as tax laws which impoverished
newspaper publishers. Through long, difficult years, the press survived these assaults.
Nonetheless, the struggle to preserve press freedom is distinct for it is a story with a first but without a final chapter.
In the decade of the 60's and onwards, a new weapon against press freedom was unsheathed by government. It was the
sword of subpoena. In Congress as in the courts, it was wielded to pry open newsmen's secret sources of information
often derogatory to government. The unbridled use of the subpoena had its silencing effects on the exercise of press
freedom. Common law denied newsmen the right to refuse to testify concerning information received in
confidence. 10 The press has to go to the legislature for protection. The protection came to be known as shield
statutes and their scope varied. In the United States, they were of two (2) tapes: (1) laws that shield the identities of
newsmen's informants from disclosure; 11 and (2) laws that shield not only the identities of news sources but also
the content of the communication against disclosure. 12 Test cases also filed in courts seeking a ruling that a newsman's
right to gather news is constitutionally protected, and hence, cannot be impaired by subpoenas forcing disclosure of
the identities of their sources of information.13 To date, the American case law on the matter has yet to jell.
In the Philippines, the shield law is provided by Republic. Act No. 1477, approved on June 15, 1956 which prohibits
revelation of "the source of any news-report or information . . . related in confidence . . . unless the court or a House
or committee of Congress finds that such revelation is demanded by the security of the State." R.A. No. 1477
amended R.A No. 53 by changing the phrases "interest of the State" to "security of the State" The change limited the
right of the state to share with newsmen their confidential sources of information.
Prescinding from these premises, let me now slide to the constitutional balancing made by the majority. I whole
heartedly agree that except for a more overriding consideration, the Court should uphold the importance of an orderly
administration of justice. It appears that respondent's reliance on his constitutional right to freedom of speech and of
the press failed to impress the majority as an overriding consideration. Among the reasons that obviously swayed the
majority in submerging the significance of freedom of speech and of the press below that of an orderly administration
of justice were: failure of respondent to obey the invitation to appear made by the Ad Hoc Committee, his refusal to
reveal the sources of his information, and the falsity and slants of his columns. In registering this dissent, I wish to
address these reasons and I respectfully posit the following postulates:
First. It should be stressed that respondent Jurado was initially invited to appear before the Ad Hoc Committee tasked
to investigate Reports of Corruption in the Judiciary. The Ad Hoc Committee is only a fact-finding body as its
ordained duty is "to ascertain the truth" respecting reports on corruption in the judiciary. As an administrativefact-
finding body, its power to compel newsmen to appear and disclose their secret sources of information is lesscompared
with the same power of Congress while making laws or the power of courts when litigating actual controversies.
Jurisprudence holds that the power to compel testimony inheres in the power to legislate for "a legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change." 14 Case law similarly holds that courts can compel newsmen to testify where it is necessary to
avoid miscarriage of justice. 15 The majority should not take to task the respondent for his failure to appear before
the Ad Hoc Committee. His failure to honor its invitation had only a slight adverse effect on the work of the
Committee. It does not justify imposing on respondent the severe order of contempt of court.
The majority, however, holds that the respondent was not cited for contempt for his non-appearance before the Ad
Hoc Committee where he did not explain his other writings in the Manila Standard but his false report on the alleged
Hongkong trip of some justices and his slanted report on the birthday party of Atty. Veto attended by some appellate
justices.
A close look at the flow and totality of the proceedings against respondent will, however, belie the stance of the
majority. In his March 1, 1993 Comment, respondent explained the bases of all his reports regarding corruption in the
judiciary, which among others, assailed Judge Rosalio de la Rosa, Executive Judge of Manila, Makati's Magnificent
Seven, the Magnificent, Seven in the Supreme Court, the JBC, etc. The majority did not consider this explanation as
immaterial on the ground that he was not being asked to account for said reports. On the contrary , the explanation of
the respondent, was minutely dissected in the majority opinion, and thereafter, it was condemned as a "litany of
falsehoods." Indeed, no less than four (4), pages of the majority opinion written in single space were devoted to the
discussion of these writings of the respondent.
Neither does it materially matter that no summons or subpoena was issued to the respondent by the Ad Hoc
Committee. According to the majority, only an "invitation" to appear was extended to the respondent. This thin
semantical distinction, however, cannot deflate the fact that an "invitation" from a Committee of this Court carries as
much a compulsion as a summons or a subpoena. The February 5, 1993 letter of the Chairman of the Ad
HocCommittee to the respondent tells it all when it stated that said Committee has
". . . authority to maintain and enforce order in its proceedings, and to compel obedience to its processes."
Second. The letters of invitation to respondent misappreciated the proper function of the press. The first letter, dated
February 1, 1993, ordered respondent "to give the Committee information that will assist it in its task, i.e., to
definitely and accurately determine the facts as regards the published rumors and reports of corruption in the
judiciary." The second letter, dated February 5, 1993, stated, inter alia, ". . . we believe you will want to help the
Court . . . by furnishing the Committee with Committee competent evidence, testimonial or otherwise. Clearly,
thepurging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize,
being yourself a lawyer." I submit that the press is not an adjunct of the judiciary, any more than is it an annex of the
two (2) other branches of government. As the press is not an extension of the judiciary, it cannot be used as an
investigatory instrument to purge courts of misfits especially when the use of the press will compel it to compromise
its role as critic of government. Again, it should be stressed that the judiciary is not without resources to investigate
and reform itself. It can purge its ranks without compelling the involvement of the press.
Third. The protection of R.A. No. 53, as amended by R.A. No. 1477, to newsmen should not be diminished as much
as possible. Under this law, there is only one but one clear ground which can be force a newsman to reveal the source
of his confidential information — when demanded by the security of the State. It is instructive to remember the case
of In re: Angel J. Parazo, 16 where the Court adjudged newsman Parazo in contempt of court for refusing to divulge
the source of his story regarding leakage of questions in some subjects in the 1948 Bar Examinations. It was
contended by Parazo that under R.A. No. 53, he could only be compelled to reveal the source of his information when
the "revelation is demanded by the interest of the State" Parazo argued that "interest of the State" meant "security of
State." The Court rejected Parazo's argument as it held that the two (2) terms are not synonymous, the first being
broader than the second. It then ruled that the maintenance of high standard of the legal profession qualifies as an
"interest of the State" the promotion of which is a good ground to compel newsmen to break the confidentiality of
their sources of news. The Court ruling did not sit well with Congress. On June 15, 1956, Congress enacted R.A. No.
1477 which amended R.A. 53 by changing the phrase "interest of the State" to "security of State."
Respondent invoked R.A. No. 53, as amended, as an additional defense in his favor. The majority opinion, however,
shunted aside respondent's submission as it held that said law does not protect "a journalist who deliberately prints lies
or distorts the truth." There is no disagreement that R.A. 53 as amended, does not provide immunity against a blatant
falsehood just as the Constitution does not protect a vicious lie. Precisely, section 1 of the law starts with the
categorical caveat "without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist
. . . cannot be compelled to reveal the source of any newspaper report of information . . . ." But well to note, the case
at bench is not a libel or a damage suit where we can properly decide, among others, the kind of falsehood and the
proper stage of the proceedings when the Court could compel a newsman to reveal the source of his information
without violating his freedom of speech and of the press. To my mind, the case at bench should be and can be resolved
by simply determining whether respondent's columns, given their falsity and slant, posed a clear and present danger to
our administration of justice. My humble submission is that the evidence on record failed to prove this clear and
present danger, and hence, there is no need to task respondent to reveal the sources of his information in order to
prove that his reports about judicial corruption are not patent falsehoods. The Court should always adopt an approach
that is less destructive of freedom of speech and of the press. I reserve my full view on the longtitude and latitude of a
newsman's right not to reveal the sources of his information in a more appropriate case.
Fourth. The majority stubbornly stresses that it gave respondent an "option" and did not compel him to reveal the
sources of his information. Indeed, he was not compelled but he paid a high price for not revealing the sources of his
information. It was held that he failed to disprove the falsity and slant of his column, hence, was liable for contempt.
My thesis is that the affidavits on the PLDT affair and Atty. Veto's party may have proved the falsity or slant of
respondent's columns. But mere proof of falsity or slant is not proof that the falsehood or slant was made knowingly
or with reckless disregard of truth, to use the New York Times test. Likewise, proof that respondent did not verify his
facts from the PLDT and travel agency officials and from Atty. Veto is not proof that he did no verification at all.
Indeed, the evidence does not show that Messrs. Samson Garcia, and Veto and Mrs. de la Paz wrote to respondent to
give him an opportunity to correct his errors. In the absence of such an opportunity, it is difficult to impute malice
against respondent. Without proof that respondent knowingly or recklessly disregarded truth, he should not have been
called upon to disprove the falsity or slant of his columns. He need not have been given these so-called "option" to
reveal or not to reveal the sources of his information.
There is another aspect of freedom of the press which the majority failed to consider. The sanctity of a newsman's
source of information is not only intended to protect a newsman but also the source of his information. When a person
transmits confidential information to a newsman, he is exercising his freedom of speech on condition of anonimity.
In Talley v. California, 17 an ordinance which penalized the distribution of any handbill which did not identify its
author was struck down as unconstitutional. It was held that "identification and fear of reprisal might deter perfectly
peaceful discussions of public matters of importance." 18 It is thus arguable that a newsman byhimself does not have
the option to reveal or not to reveal the identity of his source of information. His source may have
an independent right to the protection of his anonymity in the exercise of freedom of speech. This issue, however,
need not be resolved in the case at bench but in a more appropriate setting. Be that as it may, I bewail the precipitate
majority ruling that a newsman has an unqualified option to reveal the confidential source of his information for its
inevitable effect is to discourage people from giving confidential information to the press. Again, the impairment, of
the flow of information to the public will suffer an irreparable harm.
Fifth. The majority punishes respondent for publishing "stories shown to be false . . . . stories that he made no effort
whatsoever to verify and which, after being denounced as lies, he has refused, or is unable to substantiate." The undue
weight given to the falsity alone of respondent's columns is unsettling. For after finding respondent's columns as false,
the majority did not go any further to determine whether these falsehoods constitute a clear and present danger to the
administration of justice. This libertarian test was originally espoused by Mr. Justice Holmes in Schenck v. United
States 19 where he ruled "the question in every case is whether the words used are used in such circumstances and are
of such nature as to create and present danger that they will bring about the substantive evils that the State has a right
to prevent." We have adopted this libertarian test as early as 1948 inPrimicias v. Fugoso 20 and which we reiterated, among others,
in the leading cases of Navarro v. Villegas 21 and the companion cases of Reyes v. Bagatsing, and Ruiz v. Gordon. 22

In the case at bench I cannot, perceive how the respondent's column on the alleged Hongkong trip of some justices
could have brought about the substantive evil of subverting our orderly administration of justice. The affidavits of Mr.
Samson, First Vice President of PLDT, of Mr. Ermin Garcia, Jr., President of City-World Travel Mart Corporation, and
of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation merely established the falsity of
respondent's report. There is nothing in the record, however, showing the degree how respondent's false report
degraded the administration of justice. The evidence from which this conclusion can be deduced is nil. The standing
of respondent, as a journalist is not shown. The extent of readership of respondent is not known. His credibility has
not been proved. Indeed, nothing in the record show that, any person lost faith in our system of justice because of his
said report. Even the losing party in G.R. No. 94374. Eastern Telephone Philippines, Inc., (ETPI) dues not appear to
have given any credence to the said false report. I submit that it is not every falsehood that, should incur the Court's
ire, at lest it runs out of righteous indignation, Indeed, gross falsehood, vicious lies, and prevarications of paid hacks
cannot deceive the public any more that can they cause this Court to crumble. If we adopt, the dangerous rule that we
should curtail speech to stop every falsehood we might as well abolish freedom of speech for there is yet to come a
man whose tongue tells only the truth. In any event, we should take comfort in the thought that falsehoods cannot
destroy — only truth does but only to set us free.
In a similar vein, I reject the conclusion that respondent's report about the birthday party of Atty. Veto attended by
some justices and judges seriously eroded our administration of justice. Again, there is not an iota of empirical
evidence on record to sustain this irrational fear. There is less reason to punish respondent for contempt for his report
on Atty. Veto's party. Unlike respondent's report about the justices' Hongkong trip, his report on Atty. Veto's party is
not false but only slanted, to use the own description of the majority opinion. Also, unlike respondent's report about
the justices' Hongkong trip which was made while the Court has yet to resolve Eastern Telephone's Motion for
Reconsideration in G.R. No. 94374, his report on Atty. Veto's party does not concern any pending litigation in this
Court. Given these material differences, there is no way to conclude that respondent's report on Atty. Veto's party
degraded our administration of justice. In citing respondent in contempt for slanting his report on Atty. Veto's party,
the majority betrays its flaccid respect for freedom of speech and of the press. Respondent is a columnist and he does
not only write straight news reports but interprets events from his own distinct prism of perception. As a columnist
and like any other columnist, he has own predilections and prejudices and he bends his views in accord with his own
slant of faith. I see no reason to penalize respondent for the slants in his views, however, unpleasant and irreverent
they may be to the court. When we start punishing a columnist for slants in his views, we shall soon be seeking slits to
look for witches among them.
Ironically, the majority cites in support of its non-too-liberal stance the cases of New York Times Co. v.
Sullivan 23and Garrison v. Louisiana. 24 These cases, however, are ground breaking in importance for they expanded
the protection given to freedom of speech and of the press. New York
Times 25 restricted the award of damages in favor of public officials in civil suits for damages arising out of libel
precisely because of their chilling effects on the exercise of freedom of speech and of the press. To be entitled to
damages, the public official concerned was imposed a very difficult, if not impossible, burden of proof. He was
required to prove that the defamatory statement was made with not only false but was made with "actual
malice" 26This means he has to prove that the defamatory statement was made with "knowing falsity or with a reckless
disregard for the truth."27 On the other hand, Garrison did not only reiterate but even extended the New York
Times rule to apply to criminal cases. Mr. Garrison, a District Attorney of Orleans Parish, Louisiana was convicted
of criminal defamation under the Louisiana Criminal Defamation Statute. In a press conference, he assailed eight (8)
judges for their inefficiency, laziness, excessive vacations, and for refusing to authorize disbursements to cover the
expenses of undercover investigations of vice in New Orleans. Impugning their motives he said: ". . . This raises
interesting questions about the racketeer influences on our eight vacation minded judges." The Louisiana State courts
rejected Garrison's defense anchored on freedom of speech. In reversing the Supreme Court of Louisiana, the United
States Federal Supreme Court, thru Mr. Justice Brennan, held that the "New York Times rule under which the
constitutional guaranty of free speech limits state power in a civil action brought by a public official for criticism of
his official conduct, to award of damages for a false statement made with actual malice, that is with knowledge that it
was false or with reckless disregard of whether it was false or not, likewise limit estate power to impose criminal
sanctions for criticism of the official conduct of public officials". It struck down as unconstitutional the Louisiana
statute which permitted punishment of false statements made with ill will, even though they are not made with
knowledge of their falsity or in reckless disregard of whether they are true or not. It further held that lack of
reasonable belief in the truth of the statements is not the equivalent of reckless disregard of truth. To quote exactly the
ruling: ". . . . Even where the utterance is false, the great principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood . . .
The public official rule protects to the paramount public interest in free flow of information to the people concerning
public officials, their servants. To this end, anything which on an official's fitness for office is relevant. Few personal
attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation . . . ."
The majority opinion in the case at bench certainly did not follow the New York Times rule which was reiterated and
even expanded in Garrison. The majority halted after finding that the respondent's columns are false or slanted. As
aforestated, the affidavits of Messrs. Samson, Garcia, Jr. and Veto and Mrs. de la Paz merely condemned as false
respondent's report but did not prove that respondent wrote his report with knowing or reckless disregard of truth. Yet,
the majority was satisfied that this was enough evidence to punish respondent for contempt. It rule: "That categorical
denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it
had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if
unable to do either of these things, to offer to atone for the harm caused." The shift in the burden of proving reckless
disregard of truth to respondent Jurado patently violates theNew York Times rule. The New York Times rule fixed this
burden of proof on complainants against newsmen. If theNew York Times rule has any value to freedom of speech and
of the press, it is because it made the burden of proof in this kind of cases extremely difficult to discharge on the part
of a complainant against a newsman. In contrast, the majority opinion made it too easy in favor of a complainant.
Sixth. The majority opinion also failed to consider that the columns of respondent dealt with the sensitive subject of
corruption in courts. It cannot be gain said that corruption in government is a matter of highest concern to our
citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain
the countenance of a clam. Thus, the prosecution of corruption in government has not hit a high note and what now
appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of
print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an
unimpeded access to information. On many an occasion, these confidential sources of information are the only leads
to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen's sources will result in
tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State' s policy to
eliminate corruption in government. In the absence of clear and convincing evidence that respondent knowingly
foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New
York Times rule correctly warned us that occasional erroneous statements are "inevitable! in free debate . . . and must
be protected if the freedoms of expression are to have the "breathing space" that they "need, to survive."
Seventh. I appreciate the genuine concern of the majority against certain abuses committed by some members of the
press. Be that as it may, the abuses of some newsmen cannot justify an overarching rule eroding the freedom of all of
them. Indeed, the framers of the Constitution knew that these abuses will be committed by some newsmen but still,
they explicitly crafted section 4, Article III of the Constitution to read: "[N]o law shall be passed abridging the
freedom of speech, of expression, or of the press . . . ." Madison stressed that "some degree of abuse is inseparable
from the proper use of everything, and in no instance is this more true than in that of the press " 28There is an
appropriate remedy against abusive press newsmen. I submit, however, that the remedy is not to be too quick in
wielding the power of contempt for that will certainly chain the hands of many newsmen. Abusive newsmen are bad
but laundered news is worse.
Eight. Again, with due respect, I submit that the majority misappreciates the role of the press as a critic of government
in democratic society. The Constitution did not conceive the press to act as the cheer leader for of government,
including the judiciary. Rather, the press is the agent 29 of the people when it gather news derogatory to those who
hold the reins of government. The agency is necessary because the people must have all available information before
they exercise their sovereign judgment. As well observed: "The newspapers, magazines, and other journals of the
country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation
than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon
misgovernment the suppression of abridgment of the publicity afforded by a free press cannot be regarded otherwise
than with grave concern." 30 As agent of the people, the most important function of the press in a free society is to
inform and it cannot inform if it is uninformed. We should be wary when the independent sources of information of
the press dry up, for then the press will end up printing "praise" releases and that is no way for the people to know the
truth.
In sum, I submit, that the equation chosen the majority has the pernicious effects of hobbling the writing hand of
newsmen and of chilling the sources of information of the press. The majority can snicker against the "bleeding heart"
liberalism but this is a vain attempt to use a fig leaf to conceal its niggardly regard for freedom of speech and of the
press. In a large measure, I fear that the majority opinion will weaken the press as an informed and informative source
of information of the sovereign people. In so doing, it will unwittingly erode the people's right to discover the truth.
The protection we give to the sanctity of the sources of information of the press is for the benefit of the people. It is
designed to benefit all of us, keep us above the cloud of ignorance. Democracy cannot bloom where sovereignty is
rooted on the top soil of an ignorant mass.
I vote not to hold the respondent in contempt of court.
Padilla, J., concurs.

Separate Opinions
MELO, J., dissenting:
In making a choice between the preservation of liberties and freedom on one hand, and the attainment of a better —
ordered society, on the other, men have not stopped debating. The balance, the point of the weighing scale, has moved
hither and thither depending on the needs of the times and on the kind of government involved. But in democratic
governments, there must at all times be due regard for the preservation of constitutional rights even to the extent, at
times, of seemingly sacrificing, as in the case at hand, accurate and truthful media comment.
To be sure, fair, accurate, truthful reporting by the press is the hallmark and badge of a healthy and self-assured
society. But such ideal must not be purchased or achieved at the cost of press freedom itself but rather by caring for
and nurturing, cultivating, and promoting the growth of said freedom, impressing upon its practitioners due regard for
the truth and the entitlement of the public they serve to accurate reporting instead of the publication or airing of
private biases and jaundiced views.
It is thus even as I am personally disturbed by fallacious, specious, and at times downright false and deceitful
reporting and comments, meant only to promote private and selfish interests, I must extend my concurrence to the
well-written opinion of Justice Puno. For, as was said of old, when one rows through a sea of conflict between
restraint and freedom, one should hold both oars steadily, but always with the oar of freedom in the stronger hand, lest
an errant course be laid.
PUNO, J., dissenting:
The case at bench resolves several issues of critical importance to freedom of speech and of the press, thus: (1) the
right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations; (2) the
right of newsmen not to reveal confidential sources of information under R.A. No. 53, as amended; and (3) the test, to
be followed before a false or slanted report by a journalist can be adjudged as constitutive of contempt of court. It is
my humble submission that the majority opinion, even while heavily laden with wisdom, has too much of an
inhibiting effect on our newsmen's pen as to abridge their freedom of speech and of the press. I, therefore, dissent.
The facts are amply stated in the majority opinion. In 1992-93, unsavory news and commentaries about malpractices
in the judiciary, some of them outrightly vicious, appeared in the print and broadcast media. In reaction, Chief Justice
Andres R. Narvasa issued Administrative Order No. 11-93, dated January 25, 1993, "Creating an Ad Hoc Committee
to Investigate Reports of Corruption in the Judiciary." Its text reads:
WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified
reports respecting corruption in the judiciary, said rumors and reports not only having been
mentioned by media and in anonymous communications, but having also been adverted to by certain
government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted
composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon.
Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek
to ascertain the truthrespecting said reports and statements, and to this end, forthwith interview at
closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the
matter and who may be appealed to to share knowledge with the Court, and otherwise gather such
evidence as may be available. The Committee is hereby authorized to use such facilities and
personnel of the Court as may be necessary or convenient in the fulfillment of its assigned mission,
and shall submit its report to the Court within thirty (30) days. (Emphasis supplied)
The member of the Committee was immediately constituted. 1 From February 2, 1993 to April 16, 1993, the
Committee held twenty-four (24) closed-door sessions and interviewed seventy-one (71) witnesses who appeared to
have some knowledge of the subject of inquiry. 2
Among the persons invited by the Committees to appear was respondent Jurado. His first invitation was to appear on
February 4, 1993 to give the Committees information that will assist it in its task, i.e., to definitely and accurately
determine the facts as regards the published rumors and reports of corruption in the judiciary.
Respondent Jurado failed to honor the invitation. On February 5, 1993, the Committee reiterated its invitation,
couched in the following language:
xxx xxx xxx
It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its
session of February 4, 1993. All indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best positioned to assist the Ad
HocCommittee in its function of obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the
misfits in its ranks, and we believe you will want to help the Court to do precisely that, furnishing the
Committee with competent evidence, testimonial or otherwise. Clearly, the purging process cannot be
accomplished without proof, testimonial or otherwise, as you must no doubt realize, being yourself a
lawyer.
We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is
simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to
maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an
adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions,
on the basis of such proofs as may be presented to it. That functions is reserved to the Supreme Court
itself, in which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-
gathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court
which will then take such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice
Hilario G. Davide, Jr., will preside as Chairman at these hearings since I will be unable to do so in
view of earlier commitments. We reiterate our invitation that you come before the Committee, and
you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon.
(Emphasis supplied).
Again, respondent Jurado did not appear in the scheduled investigations. The Court ordered the matter to be docketed
on February 16, 1993 and respondent was asked to file his Comment on the PLDT letter and affidavit of Mr. Vicente
Samson and the affidavit of Atty. William Veto, the contents of which are related in the majority opinion.
Respondent Jurado submitted his Comment on March 1, 1993. By then, the Court has also received the affidavits of
Mr. Ermin Garcia of the City World Travel Mart Corporation and of Mrs. Marissa de la Paz of Philway Travel
Corporation traversing the column of February, 1993 of the respondent. On Orders of the Court, the respondent then
submitted a Supplemental Comment with Request for Clarification on March 15, 1993. Among other defenses,
respondent invoked R.A. No. 53, 3 as amended by R.A. No. 1477, which reads:
AN ACT AMENDING SECTION ONE OF REPUBLIC ACT NUMBERED FIFTY-THREE,
ENTITLED "AN ACT TO EXEMPT THE PUBLISHED, EDITOR, COLUMNIST OR REPORTER
OF ANY PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED NEWS OR
INFORMATION OBTAINED IN CONFIDENCE"
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Sec. 1. Section one of Republic Act Numbered Fifty-three is amended to read as follows:
Sec. 1. Without prejudice to his liability under the civil and criminal laws, the
publisher, editor columnist or duly accredited reporter of any newspaper, magazine
or periodical of general circulation cannot be compelled to reveal the source of any
news-report or information appearing in said publication which was related in
confidence to such publisher, editor or reporter unless the Court or a House or
committee of Congress finds that such revelation is demanded by the security of the
State.
Sec. 2. This Act shall take effect upon its approval.
Approved, June 15, 1956. (Emphasis supplied)
Upon these facts, the majority would hold respondent guilty of contempt of court.
In adjudging respondent in contempt of court, the majority attempted to establish an equilibrium between the
importance of a free press and the need to maintain the integrity and orderly functioning of the administration of
justice, the civil law duty to "act with justice, give everyone his due, and observe honesty and good faith," and the
right to private honor and reputation. The majority tilted the balance against freedom of the press and respondent
Jurado after finding that some of his columns were either false or slanted as he made no effort to verify them before
their publication.
How to strike a balance that will accommodate equally compelling yet competing State interests has divided men of
stratospheric intellect. Until the fast decibel of time, and while man continues to be bereft of infallibility, the best of
minds will continue with their search for the elusive variables that will correctly tilt the balance between press
freedom and other freedoms. Thus, with high respect to my learned colleagues in the majority, I beg to differ with
their conclusion on where to fix the elusive balance in the case at bench.
A brief revisit of the history of the struggle to protect freedom of the press ought to be enlightening. It will remind us
that freedom of speech and freedom of the press 4 are preferred right 5 for they are indispensable preconditions for the
exercise of other freedoms. 6 Their status as the cornerstone of our liberties followed the shift of sovereignty from
monarchs to the masses — the people.7 For the people to be truly sovereign, they must be capable of rendering
enlightened judgments and they cannot acquire this capability unless they have an unclogged access to information,
the main pipeline of which is the press. Early enough, Madison had the prescience to warn that "a popular government
without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both." 8
The history of press freedom will also reveal that while its importance has been given lip service, its unabridged
exercise was not won without a costly struggle. Ironically, the attempts to restrict the newsmen's pen came from
government itself. The attempts were disguised in different insidious
forms. 9 They came as sedition laws which sent newsmen behind bars. They came as tax laws which impoverished
newspaper publishers. Through long, difficult years, the press survived these assaults.
Nonetheless, the struggle to preserve press freedom is distinct for it is a story with a first but without a final chapter.
In the decade of the 60's and onwards, a new weapon against press freedom was unsheathed by government. It was the
sword of subpoena. In Congress as in the courts, it was wielded to pry open newsmen's secret sources of information
often derogatory to government. The unbridled use of the subpoena had its silencing effects on the exercise of press
freedom. Common law denied newsmen the right to refuse to testify concerning information received in
confidence. 10 The press has to go to the legislature for protection. The protection came to be known as shield
statutes and their scope varied. In the United States, they were of two (2) tapes: (1) laws that shield the identities of
newsmen's informants from disclosure; 11 and (2) laws that shield not only the identities of news sources but also
the content of the communication against disclosure. 12 Test cases also filed in courts seeking a ruling that a newsman's
right to gather news is constitutionally protected, and hence, cannot be impaired by subpoenas forcing disclosure of
the identities of their sources of information.13 To date, the American case law on the matter has yet to jell.
In the Philippines, the shield law is provided by Republic. Act No. 1477, approved on June 15, 1956 which prohibits
revelation of "the source of any news-report or information . . . related in confidence . . . unless the court or a House
or committee of Congress finds that such revelation is demanded by the security of the State." R.A. No. 1477
amended R.A No. 53 by changing the phrases "interest of the State" to "security of the State" The change limited the
right of the state to share with newsmen their confidential sources of information.
Prescinding from these premises, let me now slide to the constitutional balancing made by the majority. I whole
heartedly agree that except for a more overriding consideration, the Court should uphold the importance of an orderly
administration of justice. It appears that respondent's reliance on his constitutional right to freedom of speech and of
the press failed to impress the majority as an overriding consideration. Among the reasons that obviously swayed the
majority in submerging the significance of freedom of speech and of the press below that of an orderly administration
of justice were: failure of respondent to obey the invitation to appear made by the Ad Hoc Committee, his refusal to
reveal the sources of his information, and the falsity and slants of his columns. In registering this dissent, I wish to
address these reasons and I respectfully posit the following postulates:
First. It should be stressed that respondent Jurado was initially invited to appear before the Ad Hoc Committee tasked
to investigate Reports of Corruption in the Judiciary. The Ad Hoc Committee is only a fact-finding body as its
ordained duty is "to ascertain the truth" respecting reports on corruption in the judiciary. As an administrativefact-
finding body, its power to compel newsmen to appear and disclose their secret sources of information is lesscompared
with the same power of Congress while making laws or the power of courts when litigating actual controversies.
Jurisprudence holds that the power to compel testimony inheres in the power to legislate for "a legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change." 14 Case law similarly holds that courts can compel newsmen to testify where it is necessary to
avoid miscarriage of justice. 15 The majority should not take to task the respondent for his failure to appear before
the Ad Hoc Committee. His failure to honor its invitation had only a slight adverse effect on the work of the
Committee. It does not justify imposing on respondent the severe order of contempt of court.
The majority, however, holds that the respondent was not cited for contempt for his non-appearance before the Ad
Hoc Committee where he did not explain his other writings in the Manila Standard but his false report on the alleged
Hongkong trip of some justices and his slanted report on the birthday party of Atty. Veto attended by some appellate
justices.
A close look at the flow and totality of the proceedings against respondent will, however, belie the stance of the
majority. In his March 1, 1993 Comment, respondent explained the bases of all his reports regarding corruption in the
judiciary, which among others, assailed Judge Rosalio de la Rosa, Executive Judge of Manila, Makati's Magnificent
Seven, the Magnificent, Seven in the Supreme Court, the JBC, etc. The majority did not consider this explanation as
immaterial on the ground that he was not being asked to account for said reports. On the contrary , the explanation of
the respondent, was minutely dissected in the majority opinion, and thereafter, it was condemned as a "litany of
falsehoods." Indeed, no less than four (4), pages of the majority opinion written in single space were devoted to the
discussion of these writings of the respondent.
Neither does it materially matter that no summons or subpoena was issued to the respondent by the Ad Hoc
Committee. According to the majority, only an "invitation" to appear was extended to the respondent. This thin
semantical distinction, however, cannot deflate the fact that an "invitation" from a Committee of this Court carries as
much a compulsion as a summons or a subpoena. The February 5, 1993 letter of the Chairman of the Ad
HocCommittee to the respondent tells it all when it stated that said Committee has
". . . authority to maintain and enforce order in its proceedings, and to compel obedience to its processes."
Second. The letters of invitation to respondent misappreciated the proper function of the press. The first letter, dated
February 1, 1993, ordered respondent "to give the Committee information that will assist it in its task, i.e., to
definitely and accurately determine the facts as regards the published rumors and reports of corruption in the
judiciary." The second letter, dated February 5, 1993, stated, inter alia, ". . . we believe you will want to help the
Court . . . by furnishing the Committee with Committee competent evidence, testimonial or otherwise. Clearly,
thepurging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize,
being yourself a lawyer." I submit that the press is not an adjunct of the judiciary, any more than is it an annex of the
two (2) other branches of government. As the press is not an extension of the judiciary, it cannot be used as an
investigatory instrument to purge courts of misfits especially when the use of the press will compel it to compromise
its role as critic of government. Again, it should be stressed that the judiciary is not without resources to investigate
and reform itself. It can purge its ranks without compelling the involvement of the press.
Third. The protection of R.A. No. 53, as amended by R.A. No. 1477, to newsmen should not be diminished as much
as possible. Under this law, there is only one but one clear ground which can be force a newsman to reveal the source
of his confidential information — when demanded by the security of the State. It is instructive to remember the case
of In re: Angel J. Parazo, 16 where the Court adjudged newsman Parazo in contempt of court for refusing to divulge
the source of his story regarding leakage of questions in some subjects in the 1948 Bar Examinations. It was
contended by Parazo that under R.A. No. 53, he could only be compelled to reveal the source of his information when
the "revelation is demanded by the interest of the State" Parazo argued that "interest of the State" meant "security of
State." The Court rejected Parazo's argument as it held that the two (2) terms are not synonymous, the first being
broader than the second. It then ruled that the maintenance of high standard of the legal profession qualifies as an
"interest of the State" the promotion of which is a good ground to compel newsmen to break the confidentiality of
their sources of news. The Court ruling did not sit well with Congress. On June 15, 1956, Congress enacted R.A. No.
1477 which amended R.A. 53 by changing the phrase "interest of the State" to "security of State."
Respondent invoked R.A. No. 53, as amended, as an additional defense in his favor. The majority opinion, however,
shunted aside respondent's submission as it held that said law does not protect "a journalist who deliberately prints lies
or distorts the truth." There is no disagreement that R.A. 53 as amended, does not provide immunity against a blatant
falsehood just as the Constitution does not protect a vicious lie. Precisely, section 1 of the law starts with the
categorical caveat "without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist
. . . cannot be compelled to reveal the source of any newspaper report of information . . . ." But well to note, the case
at bench is not a libel or a damage suit where we can properly decide, among others, the kind of falsehood and the
proper stage of the proceedings when the Court could compel a newsman to reveal the source of his information
without violating his freedom of speech and of the press. To my mind, the case at bench should be and can be resolved
by simply determining whether respondent's columns, given their falsity and slant, posed a clear and present danger to
our administration of justice. My humble submission is that the evidence on record failed to prove this clear and
present danger, and hence, there is no need to task respondent to reveal the sources of his information in order to
prove that his reports about judicial corruption are not patent falsehoods. The Court should always adopt an approach
that is less destructive of freedom of speech and of the press. I reserve my full view on the longtitude and latitude of a
newsman's right not to reveal the sources of his information in a more appropriate case.
Fourth. The majority stubbornly stresses that it gave respondent an "option" and did not compel him to reveal the
sources of his information. Indeed, he was not compelled but he paid a high price for not revealing the sources of his
information. It was held that he failed to disprove the falsity and slant of his column, hence, was liable for contempt.
My thesis is that the affidavits on the PLDT affair and Atty. Veto's party may have proved the falsity or slant of
respondent's columns. But mere proof of falsity or slant is not proof that the falsehood or slant was made knowingly
or with reckless disregard of truth, to use the New York Times test. Likewise, proof that respondent did not verify his
facts from the PLDT and travel agency officials and from Atty. Veto is not proof that he did no verification at all.
Indeed, the evidence does not show that Messrs. Samson Garcia, and Veto and Mrs. de la Paz wrote to respondent to
give him an opportunity to correct his errors. In the absence of such an opportunity, it is difficult to impute malice
against respondent. Without proof that respondent knowingly or recklessly disregarded truth, he should not have been
called upon to disprove the falsity or slant of his columns. He need not have been given these so-called "option" to
reveal or not to reveal the sources of his information.
There is another aspect of freedom of the press which the majority failed to consider. The sanctity of a newsman's
source of information is not only intended to protect a newsman but also the source of his information. When a person
transmits confidential information to a newsman, he is exercising his freedom of speech on condition of anonimity.
In Talley v. California, 17 an ordinance which penalized the distribution of any handbill which did not identify its
author was struck down as unconstitutional. It was held that "identification and fear of reprisal might deter perfectly
peaceful discussions of public matters of importance." 18 It is thus arguable that a newsman byhimself does not have
the option to reveal or not to reveal the identity of his source of information. His source may have
an independent right to the protection of his anonymity in the exercise of freedom of speech. This issue, however,
need not be resolved in the case at bench but in a more appropriate setting. Be that as it may, I bewail the precipitate
majority ruling that a newsman has an unqualified option to reveal the confidential source of his information for its
inevitable effect is to discourage people from giving confidential information to the press. Again, the impairment, of
the flow of information to the public will suffer an irreparable harm.
Fifth. The majority punishes respondent for publishing "stories shown to be false . . . . stories that he made no effort
whatsoever to verify and which, after being denounced as lies, he has refused, or is unable to substantiate." The undue
weight given to the falsity alone of respondent's columns is unsettling. For after finding respondent's columns as false,
the majority did not go any further to determine whether these falsehoods constitute a clear and present danger to the
administration of justice. This libertarian test was originally espoused by Mr. Justice Holmes in Schenck v. United
States 19 where he ruled "the question in every case is whether the words used are used in such circumstances and are
of such nature as to create and present danger that they will bring about the substantive evils that the State has a right
to prevent." We have adopted this libertarian test as early as 1948 inPrimicias v. Fugoso 20 and which we reiterated, among others,
in the leading cases of Navarro v. Villegas 21 and the companion cases of Reyes v. Bagatsing, and Ruiz v. Gordon. 22

In the case at bench I cannot, perceive how the respondent's column on the alleged Hongkong trip of some justices
could have brought about the substantive evil of subverting our orderly administration of justice. The affidavits of Mr.
Samson, First Vice President of PLDT, of Mr. Ermin Garcia, Jr., President of City-World Travel Mart Corporation, and
of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation merely established the falsity of
respondent's report. There is nothing in the record, however, showing the degree how respondent's false report
degraded the administration of justice. The evidence from which this conclusion can be deduced is nil. The standing
of respondent, as a journalist is not shown. The extent of readership of respondent is not known. His credibility has
not been proved. Indeed, nothing in the record show that, any person lost faith in our system of justice because of his
said report. Even the losing party in G.R. No. 94374. Eastern Telephone Philippines, Inc., (ETPI) dues not appear to
have given any credence to the said false report. I submit that it is not every falsehood that, should incur the Court's
ire, at lest it runs out of righteous indignation, Indeed, gross falsehood, vicious lies, and prevarications of paid hacks
cannot deceive the public any more that can they cause this Court to crumble. If we adopt, the dangerous rule that we
should curtail speech to stop every falsehood we might as well abolish freedom of speech for there is yet to come a
man whose tongue tells only the truth. In any event, we should take comfort in the thought that falsehoods cannot
destroy — only truth does but only to set us free.
In a similar vein, I reject the conclusion that respondent's report about the birthday party of Atty. Veto attended by
some justices and judges seriously eroded our administration of justice. Again, there is not an iota of empirical
evidence on record to sustain this irrational fear. There is less reason to punish respondent for contempt for his report
on Atty. Veto's party. Unlike respondent's report about the justices' Hongkong trip, his report on Atty. Veto's party is
not false but only slanted, to use the own description of the majority opinion. Also, unlike respondent's report about
the justices' Hongkong trip which was made while the Court has yet to resolve Eastern Telephone's Motion for
Reconsideration in G.R. No. 94374, his report on Atty. Veto's party does not concern any pending litigation in this
Court. Given these material differences, there is no way to conclude that respondent's report on Atty. Veto's party
degraded our administration of justice. In citing respondent in contempt for slanting his report on Atty. Veto's party,
the majority betrays its flaccid respect for freedom of speech and of the press. Respondent is a columnist and he does
not only write straight news reports but interprets events from his own distinct prism of perception. As a columnist
and like any other columnist, he has own predilections and prejudices and he bends his views in accord with his own
slant of faith. I see no reason to penalize respondent for the slants in his views, however, unpleasant and irreverent
they may be to the court. When we start punishing a columnist for slants in his views, we shall soon be seeking slits to
look for witches among them.
Ironically, the majority cites in support of its non-too-liberal stance the cases of New York Times Co. v.
Sullivan 23and Garrison v. Louisiana. 24 These cases, however, are ground breaking in importance for they expanded
the protection given to freedom of speech and of the press. New York
Times 25 restricted the award of damages in favor of public officials in civil suits for damages arising out of libel
precisely because of their chilling effects on the exercise of freedom of speech and of the press. To be entitled to
damages, the public official concerned was imposed a very difficult, if not impossible, burden of proof. He was
required to prove that the defamatory statement was made with not only false but was made with "actual
malice" 26This means he has to prove that the defamatory statement was made with "knowing falsity or with a reckless
disregard for the truth."27 On the other hand, Garrison did not only reiterate but even extended the New York
Times rule to apply to criminal cases. Mr. Garrison, a District Attorney of Orleans Parish, Louisiana was convicted
of criminal defamation under the Louisiana Criminal Defamation Statute. In a press conference, he assailed eight (8)
judges for their inefficiency, laziness, excessive vacations, and for refusing to authorize disbursements to cover the
expenses of undercover investigations of vice in New Orleans. Impugning their motives he said: ". . . This raises
interesting questions about the racketeer influences on our eight vacation minded judges." The Louisiana State courts
rejected Garrison's defense anchored on freedom of speech. In reversing the Supreme Court of Louisiana, the United
States Federal Supreme Court, thru Mr. Justice Brennan, held that the "New York Times rule under which the
constitutional guaranty of free speech limits state power in a civil action brought by a public official for criticism of
his official conduct, to award of damages for a false statement made with actual malice, that is with knowledge that it
was false or with reckless disregard of whether it was false or not, likewise limit estate power to impose criminal
sanctions for criticism of the official conduct of public officials". It struck down as unconstitutional the Louisiana
statute which permitted punishment of false statements made with ill will, even though they are not made with
knowledge of their falsity or in reckless disregard of whether they are true or not. It further held that lack of
reasonable belief in the truth of the statements is not the equivalent of reckless disregard of truth. To quote exactly the
ruling: ". . . . Even where the utterance is false, the great principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood . . .
The public official rule protects to the paramount public interest in free flow of information to the people concerning
public officials, their servants. To this end, anything which on an official's fitness for office is relevant. Few personal
attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation . . . ."
The majority opinion in the case at bench certainly did not follow the New York Times rule which was reiterated and
even expanded in Garrison. The majority halted after finding that the respondent's columns are false or slanted. As
aforestated, the affidavits of Messrs. Samson, Garcia, Jr. and Veto and Mrs. de la Paz merely condemned as false
respondent's report but did not prove that respondent wrote his report with knowing or reckless disregard of truth. Yet,
the majority was satisfied that this was enough evidence to punish respondent for contempt. It rule: "That categorical
denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it
had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if
unable to do either of these things, to offer to atone for the harm caused." The shift in the burden of proving reckless
disregard of truth to respondent Jurado patently violates theNew York Times rule. The New York Times rule fixed this
burden of proof on complainants against newsmen. If theNew York Times rule has any value to freedom of speech and
of the press, it is because it made the burden of proof in this kind of cases extremely difficult to discharge on the part
of a complainant against a newsman. In contrast, the majority opinion made it too easy in favor of a complainant.
Sixth. The majority opinion also failed to consider that the columns of respondent dealt with the sensitive subject of
corruption in courts. It cannot be gain said that corruption in government is a matter of highest concern to our
citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain
the countenance of a clam. Thus, the prosecution of corruption in government has not hit a high note and what now
appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of
print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an
unimpeded access to information. On many an occasion, these confidential sources of information are the only leads
to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen's sources will result in
tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State' s policy to
eliminate corruption in government. In the absence of clear and convincing evidence that respondent knowingly
foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New
York Times rule correctly warned us that occasional erroneous statements are "inevitable! in free debate . . . and must
be protected if the freedoms of expression are to have the "breathing space" that they "need, to survive."
Seventh. I appreciate the genuine concern of the majority against certain abuses committed by some members of the
press. Be that as it may, the abuses of some newsmen cannot justify an overarching rule eroding the freedom of all of
them. Indeed, the framers of the Constitution knew that these abuses will be committed by some newsmen but still,
they explicitly crafted section 4, Article III of the Constitution to read: "[N]o law shall be passed abridging the
freedom of speech, of expression, or of the press . . . ." Madison stressed that "some degree of abuse is inseparable
from the proper use of everything, and in no instance is this more true than in that of the press " 28There is an
appropriate remedy against abusive press newsmen. I submit, however, that the remedy is not to be too quick in
wielding the power of contempt for that will certainly chain the hands of many newsmen. Abusive newsmen are bad
but laundered news is worse.
Eight. Again, with due respect, I submit that the majority misappreciates the role of the press as a critic of government
in democratic society. The Constitution did not conceive the press to act as the cheer leader for of government,
including the judiciary. Rather, the press is the agent 29 of the people when it gather news derogatory to those who
hold the reins of government. The agency is necessary because the people must have all available information before
they exercise their sovereign judgment. As well observed: "The newspapers, magazines, and other journals of the
country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation
than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon
misgovernment the suppression of abridgment of the publicity afforded by a free press cannot be regarded otherwise
than with grave concern." 30 As agent of the people, the most important function of the press in a free society is to
inform and it cannot inform if it is uninformed. We should be wary when the independent sources of information of
the press dry up, for then the press will end up printing "praise" releases and that is no way for the people to know the
truth.
In sum, I submit, that the equation chosen the majority has the pernicious effects of hobbling the writing hand of
newsmen and of chilling the sources of information of the press. The majority can snicker against the "bleeding heart"
liberalism but this is a vain attempt to use a fig leaf to conceal its niggardly regard for freedom of speech and of the
press. In a large measure, I fear that the majority opinion will weaken the press as an informed and informative source
of information of the sovereign people. In so doing, it will unwittingly erode the people's right to discover the truth.
The protection we give to the sanctity of the sources of information of the press is for the benefit of the people. It is
designed to benefit all of us, keep us above the cloud of ignorance. Democracy cannot bloom where sovereignty is
rooted on the top soil of an ignorant mass.
I vote not to hold the respondent in contempt of court.
Padilla, J., concurs.

=================================================================================

G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115525 October 30, 1995
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance;
LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS
OR REPRESENTATIVES, respondents.
G.R. No. 115543 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU
OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 October 30, 1995
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING
CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T.
GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 October 30, 1995
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE,
CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE
CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., and
PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TAÑADA,petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 October 30, 1995
PHILIPPINE AIRLINES, INC., petitioner,
vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115873 October 30, 1995
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T.
GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF PHILIPPINE
BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the
Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his capacity as the
Commissioner of Customs, respondents.
RESOLUTION

MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the petitions filed in these cases for the
declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded Value-Added Tax Law. The
motions, of which there are 10 in all, have been filed by the several petitioners in these cases, with the exception of
the Philippine Educational Publishers Association, Inc. and the Association of Philippine Booksellers, petitioners in
G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the Philippine Airlines,
Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan T.
David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder
to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino, Kilosbayan, Inc.,
Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders Association (CREBA)) reiterate previous
claims made by them that R.A. No. 7716 did not "originate exclusively" in the House of Representatives as required
by Art. VI, §24 of the Constitution. Although they admit that H. No. 11197 was filed in the House of Representatives
where it passed three readings and that afterward it was sent to the Senate where after first reading it was referred to
the Senate Ways and Means Committee, they complain that the Senate did not pass it on second and third readings.
Instead what the Senate did was to pass its own version (S. No. 1630) which it approved on May 24, 1994. Petitioner
Tolentino adds that what the Senate committee should have done was to amend H. No. 11197 by striking out the text
of the bill and substituting it with the text of S. No. 1630. That way, it is said, "the bill remains a House bill and the
Senate version just becomes the text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment to a House
revenue bill by enacting its own version of a revenue bill. On at least two occasions during the Eighth Congress, the
Senate passed its own version of revenue bills, which, in consolidation with House bills earlier passed, became the
enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY EXTENDING FROM
FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY EXEMPTION AND TAX CREDIT ON
CAPITAL EQUIPMENT) which was approved by the President on April 10, 1992. This Act is actually a
consolidation of H. No. 34254, which was approved by the House on January 29, 1992, and S. No. 1920, which was
approved by the Senate on February 3, 1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD TO ANY
FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by the President on May
22, 1992. This Act is a consolidation of H. No. 22232, which was approved by the House of Representatives on
August 2, 1989, and S. No. 807, which was approved by the Senate on October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also the result of the consolidation of House
and Senate bills. These are the following, with indications of the dates on which the laws were approved by the
President and dates the separate bills of the two chambers of Congress were respectively passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS
PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE
(December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE
PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL
GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING FOR THIS PURPOSE
CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992
Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE
THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS,
AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED (February 24, 1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS,
INSTRUMENTALITIES OR AGENCIES INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT AND WITHHOLD THE VALUE-
ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS PAYMENT FOR THE
PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)
 House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO
DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO THE NATIONAL
GOVERNMENT, AND FOR OTHER PURPOSES (November 9, 1993)
House Bill No. 11024, November 3, 1993
Senate Bill No. 1168, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE
DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR
SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)
House Bill No. 7789, May 31, 1993
Senate Bill No. 1330, November 18, 1993
7. R.A. NO. 7717
AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF
STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE OR THROUGH
INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, BY INSERTING A NEW SECTION AND REPEALING
CERTAIN SUBSECTIONS THEREOF (May 5, 1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of its power to
propose amendments to bills required to originate in the House, passed its own version of a House revenue measure. It
is noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino and Roco, as members of the Senate,
voted to approve it on second and third readings.
On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino, concerns a mere matter of
form. Petitioner has not shown what substantial difference it would make if, as the Senate actually did in this case, a
separate bill like S. No. 1630 is instead enacted as a substitute measure, "taking into Consideration . . . H.B. 11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
§68. Not more than one amendment to the original amendment shall be considered.
No amendment by substitution shall be entertained unless the text thereof is submitted in writing.
Any of said amendments may be withdrawn before a vote is taken thereon.
§69. No amendment which seeks the inclusion of a legislative provision foreign to the subject matter
of a bill (rider) shall be entertained.
xxx xxx xxx
§70-A. A bill or resolution shall not be amended by substituting it with another which covers a
subject distinct from that proposed in the original bill or resolution. (emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate possesses less
power than the U.S. Senate because of textual differences between constitutional provisions giving them the power to
propose or concur with amendments.
Art. I, §7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may
propose or concur with amendments as on other Bills.
Art. VI, §24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the phrase "as on other
Bills" in the American version, according to petitioners, shows the intention of the framers of our Constitution to
restrict the Senate's power to propose amendments to revenue bills. Petitioner Tolentino contends that the word
"exclusively" was inserted to modify "originate" and "the words 'as in any other bills' (sic) were eliminated so as to
show that these bills were not to be like other bills but must be treated as a special kind."
The history of this provision does not support this contention. The supposed indicia of constitutional intent are
nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be recalled that the 1935
Constitution originally provided for a unicameral National Assembly. When it was decided in 1939 to change to a
bicameral legislature, it became necessary to provide for the procedure for lawmaking by the Senate and the House of
Representatives. The work of proposing amendments to the Constitution was done by the National Assembly, acting
as a constituent assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers, sought
to curtail the powers of the proposed Senate. Accordingly they proposed the following provision:
All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills
shall originate exclusively in the Assembly, but the Senate may propose or concur with amendments.
In case of disapproval by the Senate of any such bills, the Assembly may repass the same by a two-
thirds vote of all its members, and thereupon, the bill so repassed shall be deemed enacted and may
be submitted to the President for corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days from the opening of the next regular
session of the same legislative term, reapprove the same with a vote of two-thirds of all the members
of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted
to the President for corresponding action.
The special committee on the revision of laws of the Second National Assembly vetoed the proposal. It deleted
everything after the first sentence. As rewritten, the proposal was approved by the National Assembly and embodied
in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66
(1950)). The proposed amendment was submitted to the people and ratified by them in the elections held on June 18,
1940.
This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. VI, §24 of the present Constitution
was derived. It explains why the word "exclusively" was added to the American text from which the framers of the
Philippine Constitution borrowed and why the phrase "as on other Bills" was not copied. Considering the defeat of the
proposal, the power of the Senate to propose amendments must be understood to be full, plenary and complete "as on
other Bills." Thus, because revenue bills are required to originate exclusively in the House of Representatives, the
Senate cannot enact revenue measures of its own without such bills. After a revenue bill is passed and sent over to it
by the House, however, the Senate certainly can pass its own version on the same subject matter. This follows from
the coequality of the two chambers of Congress.
That this is also the understanding of book authors of the scope of the Senate's power to concur is clear from the
following commentaries:
The power of the Senate to propose or concur with amendments is apparently without restriction. It
would seem that by virtue of this power, the Senate can practically re-write a bill required to come
from the House and leave only a trace of the original bill. For example, a general revenue bill passed
by the lower house of the United States Congress contained provisions for the imposition of an
 inheritance tax . This was changed by the Senate into a corporation tax. The amending authority of
the Senate was declared by the United States Supreme Court to be sufficiently broad to enable it to
make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAÑADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961))
The above-mentioned bills are supposed to be initiated by the House of Representatives because it is
more numerous in membership and therefore also more representative of the people. Moreover, its
members are presumed to be more familiar with the needs of the country in regard to the enactment
of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of its power to propose or concur with
amendments to the bills initiated by the House of Representatives. Thus, in one case, a bill introduced
in the U.S. House of Representatives was changed by the Senate to make a proposed inheritance tax a
corporation tax. It is also accepted practice for the Senate to introduce what is known as an
amendment by substitution, which may entirely replace the bill initiated in the House of
Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills must "originate exclusively in the House of Representatives," it
also adds, "but the Senate may propose or concur with amendments." In the exercise of this power, the Senate may
propose an entirely new bill as a substitute measure. As petitioner Tolentino states in a high school text, a committee
to which a bill is referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding sections or
altering its language; (3) to make and endorse an entirely new bill as a substitute, in which case it will
be known as a committee bill; or (4) to make no report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to originate in the House by prescribing that
the number of the House bill and its other parts up to the enacting clause must be preserved although the text of the
Senate amendment may be incorporated in place of the original body of the bill is to insist on a mere technicality. At
any rate there is no rule prescribing this form. S. No. 1630, as a substitute measure, is therefore as much an
amendment of H. No. 11197 as any which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that S. No. 1630 is
an independent and distinct bill. Hence their repeated references to its certification that it was passed by the Senate
"in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there
is something substantially different between the reference to S. No. 1129 and the reference to H. No. 11197. From this
premise, they conclude that R.A. No. 7716 originated both in the House and in the Senate and that it is the product of
two "half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere amendments of the
corresponding provisions of H. No. 11197. The very tabular comparison of the provisions of H. No. 11197 and S. No.
1630 attached as Supplement A to the basic petition of petitioner Tolentino, while showing differences between the
two bills, at the same time indicates that the provisions of the Senate bill were precisely intended to be amendments to
the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was a mere amendment
of the House bill, H. No. 11197 in its original form did not have to pass the Senate on second and three readings. It
was enough that after it was passed on first reading it was referred to the Senate Committee on Ways and Means.
Neither was it required that S. No. 1630 be passed by the House of Representatives before the two bills could be
referred to the Conference Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When the House bill
and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank deposits), were referred to a
conference committee, the question was raised whether the two bills could be the subject of such conference,
considering that the bill from one house had not been passed by the other and vice versa. As Congressman Duran put
the question:
 MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is passed by
the House but not passed by the Senate, and a Senate bill of a similar nature is passed in the Senate
but never passed in the House, can the two bills be the subject of a conference, and can a law be
enacted from these two bills? I understand that the Senate bill in this particular instance does not refer
to investments in government securities, whereas the bill in the House, which was introduced by the
Speaker, covers two subject matters: not only investigation of deposits in banks but also investigation
of investments in government securities. Now, since the two bills differ in their subject matter, I
believe that no law can be enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is precisely in cases like this
where a conference should be had. If the House bill had been approved by the Senate, there would
have been no need of a conference; but precisely because the Senate passed another bill on the same
subject matter, the conference committee had to be created, and we are now considering the report of
that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct and unrelated
measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that because the President separately
certified to the need for the immediate enactment of these measures, his certification was ineffectual and void. The
certification had to be made of the version of the same revenue bill which at the momentwas being considered.
Otherwise, to follow petitioners' theory, it would be necessary for the President to certify as many bills as are
presented in a house of Congress even though the bills are merely versions of the bill he has already certified. It is
enough that he certifies the bill which, at the time he makes the certification, is under consideration. Since on March
22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified. For that matter on June 1,
1993 the President had earlier certified H. No. 9210 for immediate enactment because it was the one which at that
time was being considered by the House. This bill was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained in the main decision that the phrase
"except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, §26 (2) qualifies not
only the requirement that "printed copies [of a bill] in its final form [must be] distributed to the members three days
before its passage" but also the requirement that before a bill can become a law it must have passed "three readings on
separate days." There is not only textual support for such construction but historical basis as well.
Art. VI, §21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been printed and copies thereof in its
final form furnished its Members at least three calendar days prior to its passage, except when the
President shall have certified to the necessity of its immediate enactment. Upon the last reading of a
bill, no amendment thereof shall be allowed and the question upon its passage shall be taken
immediately thereafter, and the yeas and nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):
(2) No bill shall become a law unless it has passed three readings on separate days, and printed copies
thereof in its final form have been distributed to the Members three days before its passage, except
when the Prime Minister certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.
This provision of the 1973 document, with slight modification, was adopted in Art. VI, §26 (2) of the present
Constitution, thus:
(2) No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in
the Journal.
The exception is based on the prudential consideration that if in all cases three readings on separate days are required
and a bill has to be printed in final form before it can be passed, the need for a law may be rendered academic by the
occurrence of the very emergency or public calamity which it is meant to address.
Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a country like the
Philippines where budget deficit is a chronic condition. Even if this were the case, an enormous budget deficit does
not make the need for R.A. No. 7716 any less urgent or the situation calling for its enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in these cases) believed that there was an
urgent need for consideration of S. No. 1630, because they responded to the call of the President by voting on the bill
on second and third readings on the same day. While the judicial department is not bound by the Senate's acceptance
of the President's certification, the respect due coequal departments of the government in matters committed to them
by the Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it was discussed for
six days. Only its distribution in advance in its final printed form was actually dispensed with by holding the voting on
second and third readings on the same day (March 24, 1994). Otherwise, sufficient time between the submission of
the bill on February 8, 1994 on second reading and its approval on March 24, 1994 elapsed before it was finally voted
on by the Senate on third reading.
The purpose for which three readings on separate days is required is said to be two-fold: (1) to inform the members of
Congress of what they must vote on and (2) to give them notice that a measure is progressing through the enacting
process, thus enabling them and others interested in the measure to prepare their positions with reference to it. (1 J. G.
SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes were
substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the Movement of Attorneys
for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of the constitutional policy of full public
disclosure and the people's right to know (Art. II, §28 and Art. III, §7) the Conference Committee met for two days in
executive session with only the conferees present.
As pointed out in our main decision, even in the United States it was customary to hold such sessions with only the
conferees and their staffs in attendance and it was only in 1975 when a new rule was adopted requiring open sessions.
Unlike its American counterpart, the Philippine Congress has not adopted a rule prescribing open hearings for
conference committees.
It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least staff members were
present. These were staff members of the Senators and Congressmen, however, who may be presumed to be their
confidential men, not stenographers as in this case who on the last two days of the conference were excluded. There is
no showing that the conferees themselves did not take notes of their proceedings so as to give petitioner Kilosbayan
basis for claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of their
meetings. Above all, the public's right to know was fully served because the Conference Committee in this case
submitted a report showing the changes made on the differing versions of the House and the Senate.
Petitioners cite the rules of both houses which provide that conference committee reports must contain "a detailed,
sufficiently explicit statement of the changes in or other amendments." These changes are shown in the bill attached to
the Conference Committee Report. The members of both houses could thus ascertain what changes had been made in
the original bills without the need of a statement detailing the changes.
The same question now presented was raised when the bill which became R.A. No. 1400 (Land Reform Act of 1955)
was reported by the Conference Committee. Congressman Bengzon raised a point of order. He said:
MR. BENGZON. My point of order is that it is out of order to consider the report of the conference
committee regarding House Bill No. 2557 by reason of the provision of Section 11, Article XII, of the
Rules of this House which provides specifically that the conference report must be accompanied by a
detailed statement of the effects of the amendment on the bill of the House. This conference
committee report is not accompanied by that detailed statement, Mr. Speaker. Therefore it is out of
order to consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
 MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with the point of
order raised by the gentleman from Pangasinan.
There is no question about the provision of the Rule cited by the gentleman from Pangasinan, but this
provision applies to those cases where only portions of the bill have been amended. In this case
before us an entire bill is presented; therefore, it can be easily seen from the reading of the bill what
the provisions are. Besides, this procedure has been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the provisions
of the Rules, and the reason for the requirement in the provision cited by the gentleman from
Pangasinan is when there are only certain words or phrases inserted in or deleted from the provisions
of the bill included in the conference report, and we cannot understand what those words and phrases
mean and their relation to the bill. In that case, it is necessary to make a detailed statement on how
those words and phrases will affect the bill as a whole; but when the entire bill itself is copied
verbatim in the conference report, that is not necessary. So when the reason for the Rule does not
exist, the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that when the ruling was appealed, it was
upheld by viva voce and when a division of the House was called, it was sustained by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new provisions as long as these are
germane to the subject of the conference. As this Court held in Philippine Judges Association v. Prado, 227 SCRA
703 (1993), in an opinion written by then Justice Cruz, the jurisdiction of the conference committee is not limited to
resolving differences between the Senate and the House. It may propose an entirely new provision. What is important
is that its report is subsequently approved by the respective houses of Congress. This Court ruled that it would not
entertain allegations that, because new provisions had been added by the conference committee, there was thereby a
violation of the constitutional injunction that "upon the last reading of a bill, no amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners' charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and
that copiesthereof in its final form were not distributed among the members of each House. Both the
enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance
with Article VI, Sec. 26 (2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the Philippines in a 1979 study:
Conference committees may be of two types: free or instructed. These committees may be given
instructions by their parent bodies or they may be left without instructions. Normally the conference
committees are without instructions, and this is why they are often critically referred to as "the little
legislatures." Once bills have been sent to them, the conferees have almost unlimited authority to
change the clauses of the bills and in fact sometimes introduce new measures that were not in the
original legislation. No minutes are kept, and members' activities on conference committees are
difficult to determine. One congressman known for his idealism put it this way: "I killed a bill on
export incentives for my interest group [copra] in the conference committee but I could not have
done so anywhere else." The conference committee submits a report to both houses, and usually it is
accepted. If the report is not accepted, then the committee is discharged and new members are
appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES: A
COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).
In citing this study, we pass no judgment on the methods of conference committees. We cite it only to say that
conference committees here are no different from their counterparts in the United States whose vast powers we noted
in Philippine Judges Association v. Prado, supra. At all events, under Art. VI, §16(3) each house has the power "to
determine the rules of its proceedings," including those of its committees. Any meaningful change in the method and
procedures of Congress or its committees must therefore be sought in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, §26 (1) of the
Constitution which provides that "Every bill passed by Congress shall embrace only one subject which shall be
expressed in the title thereof." PAL contends that the amendment of its franchise by the withdrawal of its exemption
from the VAT is not expressed in the title of the law.
Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all other taxes,
duties, royalties, registration, license and other fees and charges of any kind, nature, or description, imposed, levied,
established, assessed or collected by any municipal, city, provincial or national authority or government agency, now
or in the future."
PAL was exempted from the payment of the VAT along with other entities by §103 of the National Internal Revenue
Code, which provides as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international agreements to which the
Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending §103, as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decree Nos. 66, 529, 972, 1491, 1590. . . .
The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX
BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING
AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT) SYSTEM [BY]
WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES
AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE
CODE, AS AMENDED AND FOR OTHER PURPOSES," Congress thereby clearly expresses its intention to amend
any provision of the NIRC which stands in the way of accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific reference to P.D.
No. 1590. It is unnecessary to do this in order to comply with the constitutional requirement, since it is already stated
in the title that the law seeks to amend the pertinent provisions of the NIRC, among which is §103(q), in order to
widen the base of the VAT. Actually, it is the bill which becomes a law that is required to express in its title the subject
of legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically referred to §103 of the NIRC as among
the provisions sought to be amended. We are satisfied that sufficient notice had been given of the pendency of these
bills in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was rejected. R.A. No.
7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS,
FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR
OTHER PURPOSES CONNECTED THEREWITH. It contained a provision repealing all franking privileges. It was
contended that the withdrawal of franking privileges was not expressed in the title of the law. In holding that there was
sufficient description of the subject of the law in its title, including the repeal of franking privileges, this Court held:
To require every end and means necessary for the accomplishment of the general objectives of the
statute to be expressed in its title would not only be unreasonable but would actually render
 legislation impossible. [Cooley, Constitutional Limitations, 8th Ed., p. 297] As has been correctly
explained:
The details of a legislative act need not be specifically stated in its title, but matter
germane to the subject as expressed in the title, and adopted to the accomplishment
of the object in view, may properly be included in the act. Thus, it is proper to create
in the same act the machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its execution. If
such matters are properly connected with the subject as expressed in the title, it is
unnecessary that they should also have special mention in the title. (Southern Pac.
Co. v. Bartine, 170 Fed. 725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the press is not exempt
from the taxing power of the State and that what the constitutional guarantee of free press prohibits are laws which
single out the press or target a group belonging to the press for special treatment or which in any way discriminate
against the press on the basis of the content of the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while maintaining those
granted to others, the law discriminates against the press. At any rate, it is averred, "even nondiscriminatory taxation
of constitutionally guaranteed freedom is unconstitutional."
With respect to the first contention, it would suffice to say that since the law granted the press a privilege, the law
could take back the privilege anytime without offense to the Constitution. The reason is simple: by granting
exemptions, the State does not forever waive the exercise of its sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to which other
businesses have long ago been subject. It is thus different from the tax involved in the cases invoked by the PPI. The
license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was found to be discriminatory
because it was laid on the gross advertising receipts only of newspapers whose weekly circulation was over 20,000,
with the result that the tax applied only to 13 out of 124 publishers in Louisiana. These large papers were critical of
Senator Huey Long who controlled the state legislature which enacted the license tax. The censorial motivation for the
law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d
295 (1983), the tax was found to be discriminatory because although it could have been made liable for the sales tax
or, in lieu thereof, for the use tax on the privilege of using, storing or consuming tangible goods, the press was not.
Instead, the press was exempted from both taxes. It was, however, later made to pay a special use tax on the cost of
paper and ink which made these items "the only items subject to the use tax that were component of goods to be sold
at retail." The U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of regulation
is not related to suppression of expression, and such goal is presumptively unconstitutional." It would therefore appear
that even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely and
unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously granted to PAL,
petroleum concessionaires, enterprises registered with the Export Processing Zone Authority, and many more are
likewise totally withdrawn, in addition to exemptions which are partially withdrawn, in an effort to broaden the base
of the tax.
The PPI says that the discriminatory treatment of the press is highlighted by the fact that transactions, which are profit
oriented, continue to enjoy exemption under R.A. No. 7716. An enumeration of some of these transactions will suffice
to show that by and large this is not so and that the exemptions are granted for a purpose. As the Solicitor General
says, such exemptions are granted, in some cases, to encourage agricultural production and, in other cases, for the
personal benefit of the end-user rather than for profit. The exempt transactions are:
(a) Goods for consumption or use which are in their original state (agricultural, marine and forest
products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn
livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn,
sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of
feeds).
 (b) Goods used for personal consumption or use (household and personal effects of citizens returning
to the Philippines) or for professional use, like professional instruments and implements, by persons
coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of
petroleum products subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services rendered
under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
The PPI asserts that it does not really matter that the law does not discriminate against the press because "even
nondiscriminatory taxation on constitutionally guaranteed freedom is unconstitutional." PPI cites in support of this
assertion the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First
Amendment is not so restricted. A license tax certainly does not acquire constitutional validity
because it classifies the privileges protected by the First Amendment along with the wares and
merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not
save the ordinance. Freedom of press, freedom of speech, freedom of religion are in preferred
position.
The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for regulation. Its
imposition on the press is unconstitutional because it lays a prior restraint on the exercise of its right. Hence, although
its application to others, such those selling goods, is valid, its application to the press or to religious groups, such as
the Jehovah's Witnesses, in connection with the latter's sale of religious books and pamphlets, is unconstitutional. As
the U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher. It is quite another
thing to exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386 (1957) which
invalidated a city ordinance requiring a business license fee on those engaged in the sale of general merchandise. It
was held that the tax could not be imposed on the sale of bibles by the American Bible Society without restraining the
free exercise of its right to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a
constitutional right. It is imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange
of services and the lease of properties purely for revenue purposes. To subject the press to its payment is not to burden
the exercise of its right any more than to make the press pay income tax or subject it to general regulation is not to
violate its freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds derived from the sales
are used to subsidize the cost of printing copies which are given free to those who cannot afford to pay so that to tax
the sales would be to increase the price, while reducing the volume of sale. Granting that to be the case, the resulting
burden on the exercise of religious freedom is so incidental as to make it difficult to differentiate it from any other
economic imposition that might make the right to disseminate religious doctrines costly. Otherwise, to follow the
petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible burden on the right
of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by §107 of the NIRC, as amended by §7 of R.A. No.
7716, although fixed in amount, is really just to pay for the expenses of registration and enforcement of provisions
such as those relating to accounting in §108 of the NIRC. That the PBS distributes free bibles and therefore is not
liable to pay the VAT does not excuse it from the payment of this fee because it also sells some copies. At any rate
whether the PBS is liable for the VAT must be decided in concrete cases, in the event it is assessed this tax by the
Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses and the rule on taxation. CREBA
asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies transactions as covered or exempt
without reasonable basis and (3) violates the rule that taxes should be uniform and equitable and that Congress shall
"evolve a progressive system of taxation."
With respect to the first contention, it is claimed that the application of the tax to existing contracts of the sale of real
property by installment or on deferred payment basis would result in substantial increases in the monthly
amortizations to be paid because of the 10% VAT. The additional amount, it is pointed out, is something that the buyer
did not anticipate at the time he entered into the contract.
The short answer to this is the one given by this Court in an early case: "Authorities from numerous sources are cited
by the plaintiffs, but none of them show that a lawful tax on a new subject, or an increased tax on an old one,
interferes with a contract or impairs its obligation, within the meaning of the Constitution. Even though such taxation
may affect particular contracts, as it may increase the debt of one person and lessen the security of another, or may
impose additional burdens upon one class and release the burdens of another, still the tax must be paid unless
prohibited by the Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal
sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not only existing
laws but also "the reservation of the essential attributes of sovereignty, is . . . read into contracts as a postulate of the
legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts must be
understood as having been made in reference to the possible exercise of the rightful authority of the government and
no obligation of contract can extend to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed.
885 (1935)).
It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions as the sale of agricultural products,
food items, petroleum, and medical and veterinary services, it grants no exemption on the sale of real property which
is equally essential. The sale of real property for socialized and low-cost housing is exempted from the tax, but
CREBA claims that real estate transactions of "the less poor," i.e., the middle class, who are equally homeless, should
likewise be exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods and services was
already exempt under §103, pars. (b) (d) (1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error
in claiming that R.A. No. 7716 granted exemption to these transactions, while subjecting those of petitioner to the
payment of the VAT. Moreover, there is a difference between the "homeless poor" and the "homeless less poor" in the
example given by petitioner, because the second group or middle class can afford to rent houses in the meantime that
they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is inherent in the
power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities
which result from a singling out of one particular class for taxation, or exemption infringe no constitutional
limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134 Phil. 912 (1968);
Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan, 163 SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, §28(1) which provides
that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of property of the same class be taxed at
the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of
taxation. To satisfy this requirement it is enough that the statute or ordinance applies equally to all persons, forms and
corporations placed in similar situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A. No. 7716 merely
expands the base of the tax. The validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds similar to those made in these cases, namely,
that the law was "oppressive, discriminatory, unjust and regressive in violation of Art. VI, §28(1) of the Constitution."
(At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public,
which are not exempt, at the constant rate of 0% or 10%.
 The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-
sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of
farm and marine products, so that the costs of basic food and other necessities, spared as they are
from the incidence of the VAT, are expected to be relatively lower and within the reach of the general
public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of the Philippines,
Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the mandate of Congress to provide for a
progressive system of taxation because the law imposes a flat rate of 10% and thus places the tax burden on all
taxpayers without regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are regressive. What it
simply provides is that Congress shall "evolve a progressive system of taxation." The constitutional provision has been
interpreted to mean simply that "direct taxes are . . . to be preferred [and] as much as possible, indirect taxes should be
minimized." (E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the
mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII, §17(1) of the
1973 Constitution from which the present Art. VI, §28(1) was taken. Sales taxes are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not impossible, to avoid
them by imposing such taxes according to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
regressive effects of this imposition by providing for zero rating of certain transactions (R.A. No. 7716, §3, amending
§102 (b) of the NIRC), while granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of the
NIRC).
Thus, the following transactions involving basic and essential goods and services are exempted from the VAT:
(a) Goods for consumption or use which are in their original state (agricultural, marine and forest
products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn
livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn
sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of
feeds).
(b) Goods used for personal consumption or use (household and personal effects of citizens returning
to the Philippines) and or professional use, like professional instruments and implements, by persons
coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of
petroleum products subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services rendered
under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
On the other hand, the transactions which are subject to the VAT are those which involve goods and services which are
used or availed of mainly by higher income groups. These include real properties held primarily for sale to customers
or for lease in the ordinary course of trade or business, the right or privilege to use patent, copyright, and other similar
property or right, the right or privilege to use industrial, commercial or scientific equipment, motion picture films,
tapes and discs, radio, television, satellite transmission and cable television time, hotels, restaurants and similar
places, securities, lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers,
services of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by tendering issues not
at retail but at wholesale and in the abstract. There is no fully developed record which can impart to adjudication the
impact of actuality. There is no factual foundation to show in the concrete the application of the law to actual
contracts and exemplify its effect on property rights. For the fact is that petitioner's members have not even been
assessed the VAT. Petitioner's case is not made concrete by a series of hypothetical questions asked which are no
different from those dealt with in advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as
here, does not suffice. There must be a factual foundation of such unconstitutional taint. Considering
that petitioner here would condemn such a provision as void on its face, he has not made out a case.
This is merely to adhere to the authoritative doctrine that where the due process and equal protection
clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a
need for proof of such persuasive character as would lead to such a conclusion. Absent such a
showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete case. It may be that postponement of
adjudication would result in a multiplicity of suits. This need not be the case, however. Enforcement of the law may
give rise to such a case. A test case, provided it is an actual case and not an abstract or hypothetical one, may thus be
presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues. Otherwise, adjudication
would be no different from the giving of advisory opinion that does not really settle legal issues.
We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim is made that "there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." This duty can only arise if an actual case or controversy is before us. Under Art . VIII, §5 our
jurisdiction is defined in terms of "cases" and all that Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of
that jurisdiction we have the judicial power to determine questions of grave abuse of discretion by any branch or
instrumentality of the government.
Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power," which is "the power of a court to hear and
decide cases pending between parties who have the right to sue and be sued in the courts of law and equity" (Lamb v.
Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and executive power. This power cannot be
directly appropriated until it is apportioned among several courts either by the Constitution, as in the case of Art. VIII,
§5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of
1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others." (United States v.
Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this Court cannot inquire into any
allegation of grave abuse of discretion by the other departments of the government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of the Philippines
(CUP), after briefly surveying the course of legislation, argues that it was to adopt a definite policy of granting tax
exemption to cooperatives that the present Constitution embodies provisions on cooperatives. To subject cooperatives
to the VAT would therefore be to infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was
promulgated exempting cooperatives from the payment of income taxes and sales taxes but in 1984, because of the
crisis which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D. No.
2008 again granted cooperatives exemption from income and sales taxes until December 31, 1991, but, in the same
year, E.O. No. 93 revoked the exemption; and that finally in 1987 the framers of the Constitution "repudiated the
previous actions of the government adverse to the interests of the cooperatives, that is, the repeated revocation of the
tax exemption to cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of
tax exemptions," by providing the following in Art. XII:
§1. The goals of the national economy are a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged.
 The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human and
natural resources, and which are competitive in both domestic and foreign markets. However, the
State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and
similar collective organizations, shall be encouraged to broaden the base of their ownership.
§15. The Congress shall create an agency to promote the viability and growth of cooperatives as
instruments for social justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out cooperatives by
withdrawing their exemption from income and sales taxes under P.D. No. 175, §5. What P.D. No. 1955, §1 did was to
withdraw the exemptions and preferential treatments theretofore granted to private business enterprises in general, in
view of the economic crisis which then beset the nation. It is true that after P.D. No. 2008, §2 had restored the tax
exemptions of cooperatives in 1986, the exemption was again repealed by E.O. No. 93, §1, but then again
cooperatives were not the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to
all, including government and private entities. In the second place, the Constitution does not really require that
cooperatives be granted tax exemptions in order to promote their growth and viability. Hence, there is no basis for
petitioner's assertion that the government's policy toward cooperatives had been one of vacillation, as far as the grant
of tax privileges was concerned, and that it was to put an end to this indecision that the constitutional provisions cited
were adopted. Perhaps as a matter of policy cooperatives should be granted tax exemptions, but that is left to the
discretion of Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no
violation of any constitutional policy can be charged.
Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt from taxation. Such
theory is contrary to the Constitution under which only the following are exempt from taxation: charitable institutions,
churches and parsonages, by reason of Art. VI, §28 (3), and non-stock, non-profit educational institutions by reason of
Art. XIV, §4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the equal protection
of the law because electric cooperatives are exempted from the VAT. The classification between electric and other
cooperatives (farmers cooperatives, producers cooperatives, marketing cooperatives, etc.) apparently rests on a
congressional determination that there is greater need to provide cheaper electric power to as many people as possible,
especially those living in the rural areas, than there is to provide them with other necessities in life. We cannot say that
such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional validity of R.A. No. 7716. We have in
fact taken the extraordinary step of enjoining its enforcement pending resolution of these cases. We have now come to
the conclusion that the law suffers from none of the infirmities attributed to it by petitioners and that its enactment by
the other branches of the government does not constitute a grave abuse of discretion. Any question as to its necessity,
desirability or expediency must be addressed to Congress as the body which is electorally responsible, remembering
that, as Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the people in
quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed.
971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public
accountability of legislators, that those who took part in passing the law in question by voting for it in Congress
should later thrust to the courts the burden of reviewing measures in the flush of enactment. This Court does not sit as
a third branch of the legislature, much less exercise a veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining order
previously issued is hereby lifted.
SO ORDERED.
Narvasa, C.J., Feliciano, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
Padilla and Vitug, JJ., maintained their separate opinion.
Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ, maintained their dissenting opinion.
Panganiban, J., took no part.
====================================================================================
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon,
Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the
Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and
Western Police District Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul
Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael
Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita
Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De
los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity,
ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO
LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official
capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official
capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and
AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-
KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M.
TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines
and that their rights as organizations and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that
they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted
and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in
marched to Malacañang to protest issuances of the Palace which, they claim, put the country under an "undeclared"
martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct
peaceful mass actions and that their rights as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated
Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge
but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several
of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored
was scheduled to proceed along España Avenue in front of the University of Santo Tomas and going towards
Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further.
They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and
14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally"
policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The
Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the
government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the
State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion
to the general public on any particular issue; or protesting or influencing any state of affairs whether political,
economic or social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes
shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in
Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules
and regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare,
park, plaza, square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace
keeping authorities shall observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting
of the parade or street march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to
organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case
only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-
owned and operated educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by law are not
covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:
 (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose
of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended
activity; and the probable number of persons participating, the transport and the public address systems to be
used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction
the intended activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or
municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is
clear and convincing evidence that the public assembly will create a clear and present danger to public order,
public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days
from the date the application was filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to
have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be heard on the
matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his
permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the
applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of
filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length
of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to
prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the
vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of
commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public
assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted
peacefully in accordance with the terms of the permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit; |avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
 (c) To confer with local government officials concerned and law enforcers to the end that the public assembly
may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with
the rights of other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete
uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped
with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin
guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the
public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of
property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However,
when an assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at
the police or at the non-participants, or at any property causing damage to such property, the ranking officer
of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate,
the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute
a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a
permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first
secured that written permit where a permit is required from the office concerned, or the use of such permit for
such purposes in any place other than those set out in said permit: Provided, however, That no person can be
punished or held criminally liable for participating in or attending an otherwise peaceful assembly;
 (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the
mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by
the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse
the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six
years without prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day
to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of
this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within
the period of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof
which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in
Annex "A" to the Petition in G.R. No. 169848, thus:
Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

 STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy,
disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well
as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a
democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a
signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or
absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the message for which the expression is
sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The
words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the
government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right
to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that
right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal.
Thus, its provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in
the laws (clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth
in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P.
No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to
this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing
evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is
too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can
perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the
maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise
by the people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza,
Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo
Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their
control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao,
the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested
or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa
[No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and
manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a)
B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is
narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served
by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels
for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the
public assembly’s time, place and manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore,
nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rally’s program content or the
statements of the speakers therein, except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for such regulation, namely, these regulations need only
a substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise
police power to meet "the demands of the common good in terms of traffic decongestion and public
convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d),
and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety, public convenience, public
morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of
the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to
protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838
should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently
of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to
stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit;
that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-
based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court
set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows:
 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a)
thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration of Human
Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved and/or noted by
the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions
raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as
applied to the rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used
as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what
was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as
stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it
does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and
exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a
permit for all who would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in
public assemblies without the required permits to press their claim that no such permit can be validly required without
violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law
and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with
freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional democratic polity, without which all the other
rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this
century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of
grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage
in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4
and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with
hallowed pronouncements defending and promoting the people’s exercise of these rights. As early as the onset of this
century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly
as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in
the most peaceable manner would expose all those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line betweendisorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and
petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But
it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights,
nor injurious to the rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities
and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be
passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and
petition the Government for redress of grievances." Free speech, like free press, may be identified with the
liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment.
There is to be then no previous restraint on the communication of views or subsequent liability whether in
libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear
and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes
the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the
state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it
is a necessary consequence of our republican institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in
Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public safety, public morals, public health, or any
other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill
of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of communication that the guaranty of free speech was
given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason
and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution."
What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may
be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true
ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One
may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more
or less disorder will mark the public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater
the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to one’s
destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of
streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions may be regulated in the interest of all; it
is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied."
The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that
plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use,"
which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a
permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two
blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In
holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the
case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be
permitted unless a special license therefor shall first be obtained from the selectmen of the town or from
licensing committee,’ was construed by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of
the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State
Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights
of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be
ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
 authority of a municipality to impose regulations in order to assure the safety and convenience of the people
in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of
the means of safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the
use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot
be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to
protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words:
"The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the
auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but
whether their utterances transcend the bounds of the freedom of speech which the Constitution protects."
There could be danger to public peace and safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that
the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place
– is that the permit must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be
exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its legal possession is required. Such application should be
filed well ahead in time to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition
to such refusal or modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at
the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free
speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme
of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the
other departments – rests the grave and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so
felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they
do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public
Sec. 4. Permit when required and when not
required.-- A written permit shall be required for
any person or persons to organize and hold a public
assembly in a public place. However, no permit
shall be required if the public assembly shall be
done or made in a freedom park duly established by
law or ordinance or in private property, in which
case only the consent of the owner or the one
placewhere and the time when it will take place. If
it were a private place, only the consent of the
owner or the one entitled to its legal possession is
required. Such application should be filed well
ahead in time to enable the public official
concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant
but at another public place. It is an indispensable
condition to such refusal or modification that the
clear and present danger test be the standard for the
decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.
entitled to its legal possession is required, or in the
campus of a government-owned and operated
educational institution which shall be subject to the
rules and regulations of said educational institution.
Political meetings or rallies held during any
election campaign period as provided for by law are
not covered by this Act.
Sec. 5. Application requirements.-- All applications
for a permit shall comply with the following
guidelines:
(a) The applications shall be in writing and
shall include the names of the leaders or
organizers; the purpose of such public
assembly; the date, time and duration
thereof, and place or streets to be used for
the intended activity; and the probable
number of persons participating, the
transport and the public address systems to
be used.
(b) The application shall incorporate the
duty and responsibility of applicant under
Section 8 hereof.
(c) The application shall be filed with the
office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least five
(5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which
must be duly acknowledged in writing, the
office of the city or municipal mayor shall
cause the same to immediately be posted at
a conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant
a permit unless there is clear and
convincing evidence that the public
assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public
health.
(b) The mayor or any official acting in his
behalf shall act on the application within
two (2) working days from the date the
application was filed, failing which, the
permit shall be deemed granted. Should for
any reason the mayor or any official acting
in his behalf refuse to accept the
application for a permit, said application
shall be posted by the applicant on the
premises of the office of the mayor and
shall be deemed to have been filed.

(c) If the mayor is of the view that there is

imminent and grave danger of a substantive
evil warranting the denial or modification
of the permit, he shall immediately inform
the applicant who must be heard on the
matter.

(d) The action on the permit shall be in

writing and served on the applica[nt]
within twenty-four hours.

(e) If the mayor or any official acting in his

behalf denies the application or modifies
the terms thereof in his permit, the
applicant may contest the decision in an
appropriate court of law.

(f) In case suit is brought before the

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

(g) All cases filed in court under this

section shall be decided within twenty-four
(24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to
the executive judge for disposition or, in
his absence, to the next in rank.

(h) In all cases, any decision may be

appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by

 formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the
Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that
would use public places. The reference to "lawful cause" does not make it content-based because assemblies really
have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words
"opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to
any subject. The words "petitioning the government for redress of grievances" come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety,
public convenience, public morals or public health. This is a recognized exception to the exercise of the right even
under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms
of others and of meeting the just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or
morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to
be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or
characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public place." So it does not cover any and all
kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present
danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c)
substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same
power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was
not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of
freedom parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of
this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within
the period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom
park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom
park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter
appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the
people’s exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any
public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the
law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices
should, however, be given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of
the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set
forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by
the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition
of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the
military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the
same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years.
Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P.
Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all
pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain
instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a
"no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the
maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of
violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly
was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only
wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of
keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we
would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads
with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered
my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid
purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what
is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically
means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
1avv phil.net

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete
uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped
with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin
guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the
public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of
property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However,
when an assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at
the police or at the non-participants, or at any property causing damage to such property, the ranking officer
of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate,
the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the
 public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute
a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a
permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the
public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public
assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its
horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications
for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately
dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the
police an application duly filed on a given date can, after two days from said date, rally in accordance with their
application without the need to show a permit, the grant of the permit being then presumed under the law, and it will
be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be
peacefully dispersed following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the
scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected toheightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be
struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to
justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly
restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from
being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present
danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline
of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no
such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality
or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold
an assembly therein. The only requirement will be written notices to the police and the mayor’s office to allow proper
coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior
and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of
Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in
every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the
giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of
maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and
toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other
respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.

G.R. No. 36453 September 28, 1932

CRISANTO EVANGELISTA, plaintiff-appellant,
vs.
TOMAS EARNSHAW, Mayor of the City of Manila, defendant-appellee.
Vicente Sotto for appellant.
City Fiscal Felix for appellee.
OSTRAND, J.:
This is an action of mandamus brought against the defendant mayor of the City of Manila. The plaintiff alleges that he
is the president of the Communist Party in the Philippine Islands, a political group seeking the speedy granting of
independence in these Islands and the redemption of the proletariat, numbering over 300,000 men and woman in its
ranks; that on the 2d of March, 1931, by means of a letter to the defendant mayor of the city, the plaintiff requested the
necessary permission to hold a popular meeting at Plaza Moriones in that city, on the afternoon of March 12, 1931, to
be followed by a parade through the streets of Juan Luna, Azcarraga, Avenida Rizal, Echague, and General Solano in
order to deliver to the Governor-General a message from the laboring class; that on the 3d of March, 1931, the mayor
of the city denied the plaintiff's petition, instructing his subaltern, the chief of police, to prohibit all kinds of meetings
held by the Communist Party throughout the city, because he had revoked their permits and licenses; that
consequently, the Communist Party has not been able to hold any private or public meetings in the city since the 6th
day of March, 1931; that in refusing the requested permission and in prohibiting all meetings of the party within the
city, the defendant deprived the Communist Party of a constitutional right. The plaintiff further prays "that a writ
of mandamus be issued against the herein defendant compelling him to issue a permit for the holding of meetings and
parades by the Communist Party in Manila."
The defendant in his answer and special defense stated that subsequent to the issuance of the above-mentioned permit,
it was discovered after an investigation conducted by the office of the fiscal for the City of Manila, that said
Communist Party of the Philippines is an illegal association, or organization, which having for its principal object to
incite the revolt of the proletariat or laboring class, according to its constitution and by-laws, states as follows:
The Philippines, as a subject nation, in order to establish an independent government, has to revolt under the
leadership of the laborers.
. . . It is clear that the different political parties of the burgesses (Nacionalista-Consolidado, Democrata, etc.)
are no different from another. They have but one aim; to rise into power and exploit, with independence or
not; to enrich themselves and strengthen the control of a government which is procapitalist and proimperialist.
Because of these, we need a Communist Party, one that is not reformist but revolutionary. Only by
revolutionary means can we demolish the slavery of man by another and of one nation by another nation. . .
The principal ideal of the C. P. P. (Communist Party of the Philippines) in the desire to head the Philippine
Government is different from that of the burgees political parties. Its aim is not to strengthen the capitalist
government but to engender — as it cannot be avoided — the war of the classes and to bring about its
downfall. Therefore, the aims of the C. P. P. are the following:
1. To lead the movement for the immediate and complete independence of the Philippines.
2. To fight and bring about the downfall of American imperialism which oppresses the Philippines;
3. To stop the exploitation of the laborers and defend their rights and interests;
 4. To establish in the Philippines a Soviet Government under the laborers.
5. To bring about the downfall of capitalism.
6. Under the dictatorship of the laborers, to emancipate and redeem the laborers and farm hands, — to
embrace communism.
With these high ideals the Communist Party of the Philippines will be established. And inasmuch as these
ideals are the same as those of the C. I. (Communist International), the C. P. P. will extend its full help for the
redemption and welfare of the laborers.
. . . Here in the Philippines, American Imperialism is being fought also. The reluctance of the Moros in paying
taxes to the Government, the disorders in the large haciendas, the farmers resisting the owners and the
Constabulary, the strike of the high-school students, the uprising of the Colorums, and the oppression of the
imperialists and capitalists of the laborers, are symptoms of a movement, which if carried on with unity, will
perforce bring about the downfall of American imperialism and the obtaining of Philippine independence.
Before achieving this ultimate ideal of the C. P. P. we will have you take other steps. First, to overthrow
American imperialism which oppresses the Philippines; second, to overthrow capitalism and feudalism; third,
to seize the power in the government; fourth, the establishment of labor dictatorship; fifth, the bringing about
of class consciousness and class struggle and the prompt establishment of communism.
Under this state of affairs, a struggle is indespensable. This struggle may be peaceful or violent, but just the
same it will be a bitter struggle, where life and death will be staked.
For the prompt overthrow of the institutions of capitalism and for the purpose of opening the eyes of the
people that the imperialists are not really in earnest about giving subject peoples their independence —
because independence is an enemy of oppression and exploitation — unless their downfall is brought about, it
is necessary to struggle, not only during elections.
The difference of the revolutionary movement advocated by the C. P. P. is not found only in its principal ideal
but in the steps that it will take. While the reformists advocate understanding and cooperation with the
burgesses or capitalists, the movement of the laborers is based on the principle of class struggle. Instead of
cooperating with the enemy we should master our own strength and fight our enemies. And in order to
achieve this union, strong and powerful, it is necessary that we should counteract every move that will tend to
prejudice the laborers.
In view of the revolutionary campaign of the C. P. P. for the sake of the laborers and farm workers, the
capitalists and imperialists will become more violent and antagonistic toward them. And inasmuch as the
capitalists and imperialists have control of the government, it is not impossible that they will use their power
to more violently oppress us; in such a case they will make it clear that their ideals are inconsistent with those
of the laborers. When that day comes, the class struggle and the revolution will redouble their force, for they
will be forced to defend themselves by rising in revolt against the oppression they are being subject to by
means of the power of the state.
For the obtaining of the partial demands to be made by the C. P. P., it is necessary that all the laborers and
farm hands, now divided by their different industrial organization, be united. . . . If the factory laborers and
farm hands organizations are already established and ready for the struggle, and if their movement is already
under the leadership of the proletariat thru the C. P. P., it will endeavor to make the movement more vigorous
for the purpose of obtaining its partial demands until the time comes when the factory laborers and farm
hands are able to wrest the control of the Government from the capitalists and imperialists and place it in the
hands of the sons of the sweat;
By virtue of the original permits granted by the defendant mayor to the said Communist Party of the Philippines,
several public meetings were held under the auspices of the aforesaid association in different parts of the City of
Manila, in which seditious speeches were made urging the laboring class to unite by affiliating to the Communist
Party of the Philippines in order to be able to overthrow the present government, and stirring up enmity against the
insular and local police forces by branding the members thereof as the enemies of the laborers and as tools of the
capitalists and imperialists for oppressing the said laborers.
The communists further insisted that it was the duty of the laborers to bring the government into their hands and to run
it by themselves and for themselves, like the laboring class in Russia; that when the laborers were united, neither the
Constabulary nor the United States Army nor the imperialist Governor-General could stop them when they rose up as
one body in order to free themselves from slavery by the capitalists; that America was cunning and a coward, as
evidenced by the fact that when she entered the World War, her enemies were already weak; that the Constabulary and
the police were the ones who made trouble for the laborers because they were the agents of the American imperialists
in the Islands and they were used as instruments by the American Imperialist Government; that united together, the
laborers could down the American Imperialist Government; and other terms and expression of similar tenor and
import.
It will be readily seen that the doctrines and principles advocated and urged in the constitution and by-laws of the said
Communist Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite rebellious conspiracies
and disturb and obstruct the lawful authorities in their duty.
Considering the actions of the so-called president of the Communist Party, it is evident that he cannot expect that the
defendant will permit the Communist Party to hold meetings or parades in the manner herein described. Furthermore,
it may be noted that the complaint of the case is written merely in general terms and calls only for a judicial
declaration upon a question which is not at present an issue between the parties to this case. But be that as it may, it
must be considered that the respondent mayor, whose sworn duty it is "to see that nothing should occur which would
tend to provoke or excite the people to disturb the peace of the community or the safety or order of the Government,"
did only the right thing under the circumstances, that is, cancel and withdraw, as was done, the permit previously
issued by him to said Communist Party, in accordance with the power granted him by law — "To grant and refuse
municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they
were granted, or if acts prohibited by law or municipal ordinance are being committed under the protection of such
licenses or in the premises in which the business for which the same have been granted is carried on, or for any other
good reason of general interest." (Act No. 2774, sec. 4, amending sec. 2434, par [m], Administrative Code.)
Instead of being condemned or criticised, the respondent mayor should be praised and commended for having taken a
prompt, courageous, and firm stand towards the said Communist Party of the Philippines before the latter could do
more damage by its revolutionary propaganda, and by the seditious speeches and utterances of its members. In the
case of Gitlow vs. New York (268 U. S., 652), the Supreme Court of the United States said:
Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They
threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and
substantial because the effect of the given utterance cannot be accurately foreseen. The state cannot
reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's
scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping
and destructive conflagration. It cannot be said that the state is acting arbitrarily on unreasonably when, in the
exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to
extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot
reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary
utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own
destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.
In People vs. Lloyd, supra, p. 35 (136 N. E., 505)., it was aptly said: "Manifestly, the legislature has authority
to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until
there is a present and imminent danger of the success of the plan advocated. If the state were compelled to
wait until the apprehended danger became certain, then its right to protect itself would come into being
simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor
courts for the enforcement of the law."
At any rate, the right of peaceful assemblage is not an absolute one. In the case of People vs. Perez (45 Phil., 599,
605), this court said:
. . . when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press
and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted
authority, the supremacy of the constitution and the laws, and the existence of the State. (Citing III Wharton's Criminal
Law, pp. 2127 et seq.; U. S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto [1922], 43 Phil., 887.)
The judgment appealed from is affirmed with the costs against the appellant. So ordered.
Avanceña, C.J., Malcolm, Villamor, Villa-Real, Abad Santos, Hull, Vickers and Imperial, JJ., concur.
 De Jonge v.Oregon

Facts of the case

On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience
regarding jail conditions in the county and a maritime strike in progress in Portland. While the meeting
was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal
syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime,
physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting
industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal,
arguing that the evidence was insufficient to warrant his conviction. Disagreeing, the State Supreme
Court distinguished that the indictment did not charge De Jonge with criminal syndicalism, but rather
that he presided at, conducted and assisted in conducting an assemblage of persons, organization,
society and group called by the Communist Party, which was unlawfully teaching and advocating in
Multnomah county the doctrine of criminal syndicalism and sabotage.

Question
Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth
Amendment?

Conclusion
Yes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Oregon statute,
as applied, violated the due process clause of the Fourteenth Amendment. After reviewing the record,
the Court determined that De Jonge's sole offense was assisting in a public meeting held under the
auspices of the Communist Party. The Court reasoned that to preserve the rights of free speech and
peaceable assembly - principles embodied in the Fourteenth Amendment - not the auspices under which
a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the
bounds of freedom of speech must be examined, which had not occurred in De Jonge's case. Justice
Harlan Fiske Stone took no part in the consideration or decision of the case.

Cite this page

G.R. No. 1210 February 7, 1907

THE UNITED STATES, plaintiff-appellee,
vs.
FILOMENO APURADO, ET AL., defendant-appellants.
Ledesma, Sumulong & Quintos for appellants.
Office of the Solicitor-General Araneta for appellee.
CARSON, J.:
The appellants in this case were convicted of the crime of sedition as defined in section 5 of Act No. 292 of the
Philippine Commission, and each and all of them sentenced to six months of imprisonment, to pay a fine of 200
dollars, to subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.
The record discloses that some little time before the municipal council of San Carlos, Occidental Negros, entered
upon one of the municipality assembled near the municipal building, and upon the opening of the session a large
number of this assembled about the building crowded into the council chamber and demanded the dismissal from
office of the municipal treasurer, the municipal secretary, and the chief of police, and the substitution in their places of
new officials whose names were suggested by the spokesman of the party; that the council acceded to their wishes and
drew up a formal document setting out the reasons for its action, which was signed by the councilors present and by
several of the leaders of the crowd; that the persons who took part in the movement were wholly unarmed except that
a few carried canes; that the crowd was fairly orderly and well-behaved except in so far as their pressing into the
council chamber during a session of that body can be called disorder and misbehavior; and that the movement had its
origin in religious differences between the residents of the municipality, the petitioners desiring the dismissal of the
above-mentioned officials because they believed that they should not be permitted to hold office in the municipality
on account of their outspoken allegiance to one of the factions into which the town was at that time divided.
Section 5 of Act No. 292 is as follows:
All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of
the following objects are guilty of sedition:
xxx xxx xxx
2. To prevent the Insular Government, or any provincial or municipal government or any public official, from
freely exercising its or his duties or the due execution of any judicial or administrative order.
But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people peaceably to
assemble and petition the Government for redress or grievances" guaranteed by the express provisions of section 5 of
"the Philippine bill."
Counsel for the prosecution contends that the assembly was not a peaceable one; that they did not limit themselves to
petitioning for redress of grievances; and that by the very threat of their presence in the council chamber they imposed
their will upon the municipal authorities and prevented them from freely exercising their duties.
We think, however, that on the whole the testimony of the witnesses called at the trial does not sustain these
allegations. Not only were the individual members of the crowd wholly unarmed, but they were manifestly desirous
that fact should be known, for it appears that two American officials having asked what the purpose of the gathering
was, were assured that the assembly merely desired to petition for the removal of several municipal officials; and in
proof of the fact that they had no intention of committing a breach of the peace, the members of the crowd raised their
jackets and camisas to prove that they were carrying no concealed weapons.
The prosecution emphasizes unduly the fact that a few of those who took in the demonstration carried canes, but there
is nothing in the record to indicate that any usual number of sticks were in the hands of the petitioners, or that they
had been brought to the meeting for the purpose of using them as weapons of assault. It appears, on the contrary; that
only such number of canes were in evidence as might be seen in the hands of any ordinary crowd of citizens on any
ordinary occasion, and that for the most part they were carried by old men who used them as an aid in walking. The
prosecution also emphasizes the fact that the spokesmen of the assembly made their demands in an imperative tone
(roz imperativa) but there is some conflict in the evidence on this point, and in any event it would be going a long way
to say that the use of a more or less "imperative" tone of voice by a petitioner would be sufficient to convert a lawful
and peaceful assembly into an unlawful and seditious uprising. One of the witnesses testified that when the petitioners
had concluded their business with the council they begged permission ( pidicron permiso) to withdraw, which was
granted them by the Presidente, and this, together with other evidence as to conversations had between the leaders and
various members of the council and certain American officials, all tend to prove that the assembly may be described as
orderly rather than disorderly and that it could in no sense be said to have been a tumultuous and seditious rising of
the people.
It is true that the municipal presidente testified that the council acceded to the demands of the assembly through fear,
and under the influence of the threatening attitude of the crowd, and that there is some evidence in the record which
tends to establish that some individual members of the party made use of language which threatened evil
consequences should the council deny their petitioner, but we do not think that under all the circumstances
the presidente or the council were in any immediate danger of personal violence, and such threats as may have been
made by a few individual members of the crowd do not appear to have been made publicly, or to have received the
indorsement of the mass of the people there assembled. If such threats were in fact made, they might have rendered
the individuals making them liable to prosecution therefor, but there is nothing in the record to sustain a finding that
the crowd itself adopted these threats or had any intention of carrying them into effect.
It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly
as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in
the most peaceable manner would expose all those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line betweendisorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising.
The evidence of the record does not establish the guilt of the accused of the crime of sedition with which they are
charged, and they should be and are hereby acquitted, and the judgment and sentence of the trial court are reversed,
with the costs of both instances de oficio.
After expiration of ten days let judgment be entered in accordance herewith and ten days thereafter the record
remanded to the court from whence it came for proper action. So ordered.
Torres, Johnson, Willard and Tracey, JJ., concur.

=========================================================================

G.R. No. L-62270 May 21, 1984

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE
LEE,petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National Capital
Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA UNIVERSITY
FOUNDATION; CESAR MIJARES, in his capacity as the President of the Gregorio Araneta University
Foundation, GONZALO DEL ROSARIO, in his capacity as the Director for Academic Affairs of the Gregorio
Araneta University Foundation; TOMAS B. MESINA, in his capacity as the Dean of Student Affairs of the
Gregorio Araneta University Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal
Counsel & Security Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc Committee of
the Gregorio Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the
grievance alleged by petitioners, students of the Gregorio Araneta University Foundation, in this certiorari, prohibition
and mandamus proceeding. The principal respondents are Anastacio D. Ramento, Director of the National Capital
Region of the Ministry of Education, Culture and Sports and the Gregorio Araneta University Foundation. 1 The
nullification of the decision of respondent Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal
assembly and suspending them is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of respondent University.
They sought and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on
August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary
Medicine and Animal Science basketball court (VMAS), the place indicated in such permit, not in the basketball court
as therein stated but at the second floor lobby. At such gathering they manifested in vehement and vigorous language
their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30
A.M., the same day, they marched toward the Life Science Building and continued their rally. It was outside the area
covered by their permit. They continued their demonstration, giving utterance to language severely critical of the
University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being
held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created.
They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then
on September 9, 1982, they were formed through a memorandum that they were under preventive suspension for their
failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was
challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages
against private respondents 2 and before the Ministry of Education, Culture, and Sports. On October 20, 1982,
respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which
was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation.
The penalty was suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-parte motion for the
immediate issuance of a temporary mandatory order filed by counsel for petitioners, dated November 12, 1982, the
Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person or
persons acting in their place or stead from enforcing the order of the Ministry of' Education and Culture dated October
20, 1982 finding the petitioners guilty of the charges against them and suspending them for one (1) academic year
with a stern warning that a commission of the same or another offense will be dealt with utmost severity, effective as
of this date and continuing until otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private respondents prayed for the dismissal of the
petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the temporary restraining order
dated November 16, 1982." 4 Public respondent Ramento, on the other hand, through the Office of the Solicitor
General, prayed for the dismissal of the petition based on the following conclusion: "Consequently, it is respectfully
submitted that respondent Director of the MECS did not commit any error, much less abused his discretion, when he
affirmed the decision of respondent University finding petitioners guilty of violations of the provisions of the Manual
of Regulations for Private Schools and the Revised Student's Code of Discipline .and ordering their suspension for
one (1) academic school year. However, since said suspension has not been enforced except only briefly, thereby
enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing petitioners Lee and Jalos
to continue their schooling, if they so desire, this proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private respondents, the case was
ready for decision.
This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary
restraining order issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them
doing so and with the other two equally entitled to do so. Moreover, there is the added circumstance of more than a
year having passed since October 20, 1982 when respondent Ramento issued the challenged decision suspending them
for one year. Nonetheless, with its validity having been put in issue, for being violative of the constitutional rights of
freedom of peaceable assembly and free speech, there is need to pass squarely on the question raised.
This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for
the setting aside of the decision of respondent Ramento, the penalty imposed being unduly severe. It is true that
petitioners held the rally at a place other than that specified in the permit and continued it longer than the time
allowed. Undeniably too, they did disturb the classes and caused the work of the non-academic personnel to be left
undone. Such undesirable consequence could have been avoided by their holding the assembly in the basketball court
as indicated in the permit. Nonetheless, suspending them for one year is out of proportion to their misdeed. The
petition must be granted and the decision of respondent Ramento nullified, a much lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable
assembly carries with it the implication that the right to free speech has likewise been disregarded. Both are embraced
in the concept of freedom of expression which is Identified with the liberty to discuss publicly and truthfully, any
matter of public interest without censorship or punishment and which "is not to be limited, much less denied, except
on a showing ... of a clear and present danger of a substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public park to the gates
of the united States Embassy, hardly two blocks away, where in an open space of public property, a short program
would be held. Necessarily then, the question of the use of a public park and of the streets leading to the United States
Embassy was before this Court. We held that streets and parks have immemorially been held in trust for the use of the
public and have been used for purposes of assembly to communicate thoughts between citizens and to discuss public
issues. 8
3. The situation here is different. The assembly was to be held not in a public place but in private premises, property
of respondent University. There is in the Reyes opinion as part of the summary this relevant excerpt: "The applicants
for a permit to hold an assembly should inform the licensing authority of the date, the public placewhere and the
time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal
possession is required." 9 Petitioners did seek such consent. It was granted. According to the petition: "On August 27,
1982, by virtue of a permit granted to them by the school administration, the Supreme Student Council where your
petitioners are among the officers, held a General Assembly at the VMAS basketball court of the respondent
university." 10 There was an express admission in the Comment of private respondent University as to a permit having been granted for petitioners to hold a student
assembly. 11 The specific question to be resolved then is whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement
of the right to peaceable assembly and its cognate right of free speech.

4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the
rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in
gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des
Moines Community School District, 12 "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13 While, therefore, the
authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level
there is persuasive force to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for
the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of
attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or
on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without
'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. ... But
conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." 14

5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to peaceable assembly and free speech.
It must be in their favor, but subject to qualification in view of their continuing their demonstration in a place other than that specified in the permit for a longer period and their
making use of megaphones therein, resulting in the disruption of classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly.

6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a
vigorous presentation of views opposed to the proposed merger of the Institute of Animal Science with the Institute of
Agriculture was to be expected. There was no concealment of the fact that they were against such a move as it
confronted them with a serious problem (iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in
tuition fees, an additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such demonstration, with an enthusiastic
audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, diffident types.
They are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a
sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to
exaggerate, the exuberance of youth, They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime,
no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially
disrupts classwork or involves substantial disorder or invasion of the rights of others."

7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly.
In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly before the municipal council of San Carlos, Occidental Negros, started its
session, some five hundred residents of the municipality assembled near the municipal building, and, upon the opening of the session, a substantial number of such persons
barged into the council chamber, demanding that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed
substitutes. The municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was fairly orderly and well-behaved
except in so far as their pressing into the council chamber during a session of that body could be called disorder and misbehavior. It turned out that the movement had its origin in
religious differences. The defendant Filomeno Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal
government from freely exercising its duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "if the prosecution be
permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most
righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest form of punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising." 19 A careful reading of this decision is in order before private respondents attach, as they did in their
comments, a subversive character to the rally held by the students under the leadership of petitioners.

8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there
was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor
lobby, rather than the basketball court, of the VMAS building of the University. Moreover, it was continued longer
than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such
assembly] went on until 5:30 p. m. 20 Private respondents could thus, take disciplinary action. On those facts,
however, an admonition, even a censure-certainly not a suspension-could be the appropriate penalty. Private
respondents could and did take umbrage at the fact that in view of such infraction considering the places where and
the time when the demonstration took place-there was a disruption of the classes and stoppage of work of the non-
academic personnel. They would not be unjustified then if they did take a much more serious view of the matter. Even
then a one-year period of suspension is much too severe. While the discretion of both respondent University and
respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the
concept of proportionality between the offense connoted and the sanction imposed is not followed, an element of
arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the
holding of this Court that a one-week suspension would be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies. That is true, but
hardly decisive. Here, a purely legal question is presented. Such being the case, especially so where a decision on a
question of law is imperatively called for, and time being of the essence, this Court has invariably viewed the issue as
ripe for adjudication. What cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly
and free speech are invoked by petitioners. Moreover, there was, and very likely there will continue to be in the future,
militancy and assertiveness of students on issues that they consider of great importance, whether concerning their
welfare or the general public. That they have a right to do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay down the
principles for the guidance of school authorities and students alike. The rights to peaceable assembly and free speech
are guaranteed students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare
or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a
showing of a clear and present danger to a substantive evil that the state, has a right to present. As a corollary, the
utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable
character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever
grievances that may be aired being susceptible to correction through the ways of the law. If the assembly is to be held
in school premises, permit must be sought from its school authorities, who are devoid of the power to deny such
request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the time and place of the
assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to the offense.
WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento imposing a one-
year suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of
November 18, 1982 is made permanent. As of that date, petitioners had been suspended for more than a week. In that
sense, the one-week penalty had been served. No costs.
Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., and De la
Fuente, JJ., concur.
Aquino, Concepcion, Jr., and De Castro, JJ., took no part.
EN BANC
G.R. No. L-69198 April 17, 1985
VENECIO VILLAR, INOCENCIO F. RECITIS, NOVERTO BARRETO, RUFINO G. SALCON, JR.,
EDGARDO DE LEON, JR., REGLOBEN LAXAMANA, and ROMEO GUILATCO, JR., petitioners,
vs.
TECHNOLOGICAL INSTITUTE OF THE PHILIPPINES (TIP), DEMETRIO A. QUIRINO, JR., in his
capacity as Chairman of the Board of TIP, TERESITA U. QUIRINO, in her capacity as President of TIP, and
OSCAR M. SOLIVEN, in his capacity as Vice-President/Dean for Students and Alumni Affairs of
TIP, respondents.
Daniel M. Malabonga and Edgardo R. Abaya for petitioners.
Magno & Salita Law Office for respondents.

FERNANDO, C.J.:
The crucial question in this petition, inappropriately entitled "extraordinary legal and equitable remedies with prayer
for preliminary mandatory injunction," which this Court considered as a special civil action for certiorari and
prohibition, is whether or not the exercise of the freedom of assembly on the part of certain students of respondent
Technological Institute of the Philippines could be a basis for their being barred from enrollment. The answer is
supplied by our decision in Malabanan v. Ramento,1 where it was held that respect for the constitutional rights of
peaceable assembly and free speech calls for a negative answer. If that were an then, the petitioners 2 are entitled to
the remedy prayed for. There is, however, this other circumstance to be taken into consideration. In the opposition to
the petition for preliminary mandatory injunction, reference was made to the academic records of petitioners. Two of
the petitioners, Rufino G. Salcon, Jr., 3 and Romeo L. Guilatco, Jr., 4 had only one failing grade each, with the first
having failed in only one subject in either semester of 1984-1985 schoolyear and the second having failed in only one
subject, having passed in eight other subjects in the 1984-1985 schoolyear. Petitioner Venecio Villar failed in two
subjects but passed in four subjects in the first semester of the academic year, 1983-1984. 5 Petitioner Inocencio F.
Recitis6 passed all his subjects in the first semester of 19831984 schoolyear and had one failing grade during its
second semester. He had two failing grades during the first semester of 1984-1985 schoolyear. Petitioner Noverto
Barreto, 7 had five failing grades in the first semester of schoolyear 1983-1984, six failing grades in the second
semester of the same schoolyear, and six failing grades in the first semester of 1984-1985 schoolyear. Petitioner
Edgardo de Leon, Jr., 8 had three failing grades, one passing grade and one subject dropped in the first semester of
schoolyear 1984-1985. Petitioner Regloben Laxamana 9 had five failing grades with no passing grade in the first
semester of 1984-1985 schoolyear. Petitioners Barreto, de Leon, Jr. and Laxamana could be denied enrollment in view
of such failing grades. Respondent educational institution is under no obligation to admit them this coming academic
year. The constitutional provision on academic freedom enjoyed by institutions of higher learning justifies such
refusal. 10
Petitioners Venecio Villar, Rufino G. Salcon, Jr., Romeo L. Guilatco, Jr. and Inocencio F. Recites are entitled to the
writs of certiorari and prohibition.
1. In the aforementioned Malabanan v. Ramento decision, this Court held: "As is quite clear from the opinion inReyes
v. Bagatsing, the invocation of the right to freedom of peaceable assembly carries with it the implication that the right
to free speech has likewise been disregarded. Both are embraced in the concept of freedom of expression, which is
Identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or
punishment and which 'is not to be limited, much less denied, except on a showing ... of a clear and present danger of
a substantive evil that the state has a right to prevent." 11 An equally relevant excerpt from the opinion therein follows:
"Petitioners invoke their rights to peaceable assembly and free speech, they are entitled to do so. They enjoy like the
rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in
gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des
Moines Community School District, 'shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.'" 12 Petitioners, therefore, have a valid cause for complaint if the exercise of the constitutional rights
to free speech and peaceable assembly was visited by their expulsion from respondent College.
2. What cannot be stressed too sufficiently is that among the most important social, economic, and cultural rights is
the right to education not only in the elementary and high school grades but also on the college level. The
constitutional provision as to the State maintaining "a system of free public elementary education and, in areas where
finances permit, establish and maintain a system of free public education" 13 up to the high school level does not per
se exclude the exercise of that right in colleges and universities. It is only at the most a reflection of the lack of
sufficient funds for such a duty to be obligatory in the case of students in the colleges and universities. As far as the
right itself is concerned, not the effectiveness of the exercise of such right because of the lack of funds, Article 26 of
the Universal Declaration of Human Rights provides: "Everyone has the right to education. Education shall be free, at
least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to all on the basis of
merit." 14
3. It is quite clear that while the right to college education is included in the social economic, and cultural rights, it is
equally manifest that the obligation imposed on the State is not categorical, the phrase used being "generally
available" and higher education, while being "equally accessible to all should be on the basis of merit." To that extent,
therefore, there is justification for excluding three of the aforementioned petitioners because of their marked academic
deficiency.
4. The academic freedom enjoyed by "institutions of higher learning" includes the right to set academic standards to
determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however,
that standard should be followed meticulously. It cannot be utilized to discriminate against those students who
exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate
grievance by the students thus prejudiced, their right to the equal protection clause 15 being disregarded.
5. While the dispositive portion refers only to petitioners of record, the doctrine announced in this case should apply
to all other students similarly situated. That way, there should not be any need for a party to apply to this Court for the
necessary redress.
WHEREFORE, the writ of certiorari is granted to petitioners Venecio Villar, Inocencio F. Recitis, Rufino G. Salcon,
Jr. and Romeo Guilatco, Jr. to nullify the action taken by respondents in violation of their constitutional rights. The
writ of prohibition is likewise granted to such petitioners to enjoin respondents from acts of surveillance, black-listing,
suspension and refusal to allow them to enroll in the coming academic year 1985-1986, if so minded. The petition is
dismissed as to Noverto Barreto, Edgardo de Leon, Jr. and Regloben Laxamana. No costs.
Teehankee, Makasiar, Aquino, Abad Santos, Melencio-Herrera, Relova, Gutierrez, Jr., De la Fuente, Cuevas and
Alampay, JJ., concur.
Plana J., took no part.
Concepcion, Jr., and Escolin, JJ., are on leave.

G.R. No. 89317 May 20, 1990

ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES
BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA,
JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners,
vs.
HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38, Daet,
Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO ADEVA and by the
chairman of the Board of Trustees, JUSTO LUKBAN, respondents.
Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners
Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents.

CORTES, J.:
Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business Administration, et al., G.R. No. 76353, May 2,
1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence, may be refused readmission after the
semester is over, as the contract between the student and the school is deemed terminated.

Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not allowed to re-
enroll by the school for the academic year 1988-1989 for leading or participating in student mass actions against the
school in the preceding semester. The subject of the protests is not, however, made clear in the pleadings.
Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but the trial
court dismissed the petition in an order dated August 8, 1988; the dispositive portion of which reads:
WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on
 the point at issue in this case but the authority of the school regarding admission of students, save as
a matter of compassionate equity — when any of the petitioners would, at the least, qualify for re-
enrollment, this petition is hereby DISMISSED.
SO ORDERED. [Rollo, p. 12-A.]
A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this wise:
Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there
must be a better way of treating students and teachers than the manner ruled (not suggested) by the
Supreme Court, the Termination of Contract at the end of the semester, that is.
But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz,
et al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No.
76353, May 2, 1988; that of the termination at the end of the semester, reason for the critical
comments of Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling.
Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny
respondent's affirmative defenses that "they were given all the chances to air their grievances on
February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented
by Atty. Jose L. Lapak" and that on February 22, 1988, the date of the resumption of classes at
Mabini College, petitioners continued their rally picketing, even though without any renewal permit,
physically coercing students not to attend their classes, thereby disrupting the scheduled classes and
depriving a great majority of students of their right to be present in their classes.
Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for
re-enrollment with respondent college when they adopted, signed, and used its enrollment form for
the first semester of school year 1988-89. Said form specifically states that:
The Mabini College reserves the right to deny admission of students whose
scholarship and attendance are unsatisfactory and to require withdrawal of students
whose conduct discredits the institution and/or whose activities unduly disrupts or
interfere with the efficient operation of the college. Students, therefore, are required
to behave in accord with the Mabini College code of conduct and discipline.
In addition, for the same semester, petitioners duly signed pledges which among others uniformly
reads:
In consideration of my admission to the Mabini College and of my privileges as
student of this institution, I hereby pledge/ promise under oath to abide and comply
with all the rules and regulations laid down by competent authorities in the College
Department or School in which I am enrolled. Specifically:
xxx xxx xxx
3. I will respect my Alma Matter the Mabini College, which I represent and see to it
that I conduct myself in such a manner that the college wig not be put to a bad light;
xxx xxx xxx
9. I will not release false or unauthorized announcement which tend to cause
confusion or disrupt the normal appreciation of the college.
Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3,
Rule 65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled,
respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of
the academic freedom enjoyed by the school in accordance with the Supreme Court rulings in the
cases of Garcia vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975)
and Tangonon vs.Pano, et al. (L-45157, June 27, 1985).
WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for
reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED.
SO ORDERED. [Rollo pp. 15-16.]
Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction.
The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to refer the
case to the Court of Appeals for proper determination and disposition. The Court of Appeals ordered respondents to
comment on the petition and set the application for issuance of a writ of preliminary mandatory injunction for hearing.
After considering the comment and hearing the injunction application, the Court of Appeals resolved on May 22, 1989
to certify the case back to the Supreme Court considering that only pure questions of law were raised.
The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc on August 21,
1989 considering that the issues raised are jurisdictional. On September 14, 1989, the Court en bancaccepted the case
and required respondents to comment.
Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they filed a
pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to Counter-Comment To
this petitioners filed a "Rejoinder to Reply."
The issues having been joined, the case was deemed submitted.
At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz:
It is beyond dispute that a student once admitted by the school is considered enrolled for one
semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a
college student registers in a school, it is understood that he is enrolling for the entire semester.
Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are
for "one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer
has any existing contract either with the students or with the intervening teachers. Such being the
case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are
respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al.,
G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs.
Court of Appeals, 100 SCRA 197). The contract having been terminated, there is no more contract to
speak of. The school cannot be compelled to enter into another contract with said students and
teachers. "The courts, be they the original trial court or the appellate court, have no power to make
contracts for the parties.' (Henson vs. Intermediate Appellate Court, et al., supra). [At 161 SCRA 17-
18; Emphasis supplied.]
In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred from re-
enrolling after they led mass assemblies and put up barricades, but it added that "in the light of compassionate equity,
students who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year
when this petition was filed, should be allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr.
Justice Sarmiento dissented from the majority opinion.
A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for
reconsideration. The Court en banc, to which the case had been transferred, denied the motion for reconsideration in a
Resolution dated September 29, 1989, but added as an obiter dictum:
In conclusion, We wish to reiterate that while We value the right of students to complete their
education in the school or university of their choice, and while We fully respect their right to resort to
rallies and demonstrations for the redress of their grievances and as part of their freedom of speech
and their right to assemble, still such rallies, demonstrations, and assemblies must always be
conducted peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in
all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom
into degenerate license.
The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the decision
provoked several dissents on that issue. Although seven (7) members of the Court * disagreed with the Second
Division's dismissal of the students petition, a definitive ruling on the issue could not have been made because no
timely motion for reconsideration was filed by the students. (As stated above, the motion for reconsideration was filed
by the dismissed teachers.)
Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to bar the
readmission or re-enrollment of students on the ground of termination of contract, shall be made in this case where the
issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5].
Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school refusing
readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to readmit or re-enroll
petitioners was decided upon and implemented by school authorities as a reaction to student mass actions directed
against the school. Petitioners are students of respondent school who, after leading and participating in student
protests, were denied readmission or re-enrollment for the next semester. This is a case that focuses on the right to
speech and assembly as exercised by students vis-a-vis the right of school officials to discipline them.
Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8, 1988;Rollo,
pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the school's power to discipline
them, to wit:
Students should not be denied their constitutional and statutory right to education, and there is such
denial when students are expelled or barred from enrollment for the exercise of their right to free
speech and peaceable assembly and/or subjected to disciplinary action without abiding with the
requirements of due process. Also, it is understandable for student leaders to let loose extremely
critical and, at times, vitriolic language against school authorities during a student rally.
But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p.
13.]
1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate.
Central to the democratic tradition which we cherish is the recognition and protection of the rights of free speech and
assembly. Thus, our Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances. [Art.
III.]
This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973 Constitution, as
amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the Philippine Autonomy Act (Jones
Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907, the Court inPeople
v. Apurado, 7 Phil. 422, upheld the right to speech and assembly to overturn a conviction for sedition. It said:
Section 5 of the Act No. 292 is as follows:
All persons who rise publicly and tumultuously in order to attain by force or outside
of legal methods any of the following objects are guilty of sedition:
xxx xxx xxx
2. To prevent the Insular Government, or any provincial or municipal government or
any public official, from freely exercising its or his duties or the due execution of
any judicial or administrative order.
But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the
people peaceably to assemble and petition the Government for redress of grievances" guaranteed by
the express provisions of section 5 of "the Philippine Bill."
xxx xxx xxx
It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct
by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not happen
 to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercise in drawing the line between disorderly and seditious conduct and between
an essentially peaceable assembly and a tumultuous uprising. [At pp. 424, 426.]
That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is similarly available
to students is well-settled in our jurisdiction. In the leading case of Malabanan v. Ramento, G.R. No. 62270, May 21,
1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice Fernando in an en bancdecision, declared:
xxx xxx xxx
4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so.
They enjoy like the rest of the citizens the freedom to express their views and communicate their
thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to
borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate." While
therefore, the authority of educational institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. [At pp. 367-368.]
The facts in Malabanan are only too familiar in the genre of cases involving student mass actions:
. . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta]
University. They sought and were granted by the school authorities a permit to hold a meeting from
8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they
held a general assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated
in such permit, not in the basketball court as therein stated but at the respond floor lobby. At such
gathering they manifested in vehement and vigorous language their opposition to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same
day, they marched toward the Life Science building and continued their rally. It was outside the area
covered by their permit. They continued their demonstration, giving utterance to language severely
critical of the University authorities and using megaphones in the process. There was, as a result,
disturbance of the classes being held. Also, the non-academic employees, within hearing distance,
stopped their work because of the noise created. They were asked to explain on the same day why
they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were
informed through a memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof
was challenged by petitioners both before the Court of First Instance of Rizal in a petition
for mandamuswith damages against private respondents and before the Ministry of Education,
Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital
Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private
Schools more specifically their holding of an illegal assembly which was characterized by the
violation of the permit granted resulting in the disturbance of classes and oral defamation. The
penalty was suspension for one academic year. . . . [At pp. 363-364.]
The Court found the penalty imposed on the students too severe and reduced it to a one-week suspension.
The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the Court.
In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the Court
reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. It
enjoined the school and its officials from acts of surveillance, blacklisting, suspension and refusal to re-enroll. But the
Court allowed the non-enrollment of students who clearly incurred marked academic deficiency, with the
following caveat:
xxx xxx xxx
4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set
academic standards to determine under what circumstances failing grades suffice for the expulsion of
students. Once it has done so, however, that standard should be followed meticulously. It cannot be
utilized to discriminate against those students who exercise their constitutional rights to peaceable
assembly and free speech. If it does so, then there is a legitimate grievance by the students thus
 prejudiced, their right to the equal protection clause being disregarded. [At p. 711.]
In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a case arising
from almost the same facts as those in Malabanan, the Court rejected "the infliction of the highly- disproportionate
penalty of denial of enrollment and the consequent failure of senior students to graduate, if in the exercise of the
cognate rights of free speech and peaceable assembly, improper conduct could be attributed to them. [At p. 98].
In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was directed to
allow the petitioning students to re-enroll or otherwise continue with their respective courses, without prejudice to any
disciplinary proceedings that may be conducted in connection with their participation in the protests that led to the
stoppage of classes.
2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School.
While the highest regard must be afforded the exercise of the rights to free speech and assembly, this should not be
taken to mean that school authorities are virtually powerless to discipline students. This was made clear by the Court
in Malabanan, when it echoed Tinker v. Des Moines Community School District, 393 US 503, 514: "But conduct by
the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior —
materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech."
Thus, in Malabanan, the Court said:
xxx xxx xxx
8. It does not follow, however, that petitioners can be totally absolved for the events that transpired.
Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than
that specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of
the University. Moreover, it was continued longer than the period allowed. According to the decision
of respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m."
Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371].
But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due process.
Thus:
. . . There are withal minimum standards which must be met to satisfy the demands of procedural due
process; and these are, that (1) the students must be informed in writing of the nature and cause of
any accusation against them; (2) they shall have the right to answer the charges against them, with the
assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they
shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly
considered by the investigating committee or official designated by the school authorities to hear and
decide the case. [At pp. 706-707].
Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan, "[i]f the
concept of proportionality between the offense committed and sanction imposed is not followed, an element of
arbitrariness intrudes." [At p. 371].
3. Circumventing Established Doctrine.
Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only because of
political events that unfurled but also because of the constantly raging controversy over increases in tuition fees. But
the over-eager hands of some school authorities were not effectively tied down by the ruling inMalabanan. Instead of
suspending or expelling student leaders who fell into disfavor with school authorities, a new variation of the same
stratagem was adopted by the latter: refusing the students readmission or re-enrollment on grounds not related to, their
alleged misconduct of "illegal assembly" in leading or participating in student mass actions directed against the
school. Thus, the spate of expulsions or exclusions due to "academic deficiency."
4. The Nature of the Contract Between a School and its Student.
The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be repeatedly
emphasized that the contract between the school and the student is not an ordinary contract. It is imbued with public
interest, considering the high priority given by the Constitution to education and the grant to the State of supervisory
and regulatory powers over all educational institutions [See Art. XIV, secs. 1-2, 4(1)].
Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for Private
Schools, which provides that "[w]hen a student registers in a school, it is understood that he is enrolling . . . for the
entire semester for collegiate courses," which the Court in Alcuaz construed as authority for schools to refuse
enrollment to a student on the ground that his contract, which has a term of one semester, has already expired.
The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely clarifies that a
college student enrolls for the entire semester. It serves to protect schools wherein tuition fees are collected and paid
on an installment basis, i.e. collection and payment of the downpayment upon enrollment and the balance before
examinations. Thus, even if a student does not complete the semester for which he was enrolled, but has stayed on for
more than two weeks, he may be required to pay his tuition fees for the whole semester before he is given his
credentials for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other Fees,
which in its totality provides:
137. When a student registers in a school, it is understood that he is enrolling for the entire school
year for elementary and secondary courses, and for the entire semester for collegiate courses. A
student who transfers or otherwise withdraws, in writing, within two weeks after the beginning of
classes and who has already paid the pertinent tuition and other school fees in full or for any length of
time longer than one month may be charged ten per cent of the total amount due for the term if he
withdraws within the first week of classes, or twenty per cent if within the second week of classes,
regardless of whether or not he has actually attended classes. The student may be charged all the
school fees in full if he withdraws anytime after the second week of classes. However, if the transfer
or withdrawal is due to a justifiable reason, the student shall be charged the pertinent fees only up to
and including the last month of attendance.
Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only one semester,
and that after that semester is over his re-enrollment is dependent solely on the sound discretion of the school. On the
contrary, the Manual recognizes the right of the student to be enrolled in his course for the entire period he is expected
to complete it. Thus, Paragraph 107 states:
Every student has the right to enrol in any school, college or university upon meeting its specific
requirement and reasonable regulation: Provided, that except in the case of academic delinquency
and violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the
entire period he is expected to complete his course without prejudice to his right to transfer.
This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of 1982." Section
9 of this act provides:
Sec. 9. Rights of Students in School. — In addition to other rights, and subject to the limitations
prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights:
xxx xxx xxx
2. The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations.
xxx xxx xxx
5. Academic Freedom Not a Ground for Denying Students' Rights.
Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to admit or not
admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school" [Rollo, p. 16]. To
support this conclusion, he cited the cases of Garcia v. The Faculty Admission Committee, Loyola School of Theology,
G.R. No. L-40779, November 28, 1975, 68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137
SCRA 245, where the Court emphasized the institutions' discretion on the admission and enrollment of students as a
major component of the academic freedom guaranteed to institutions of higher learning.
These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has a clear legal
right to compel a seminary for the priesthood to admit her for theological studies leading to a degree. InTangonan, the
issue was whether a nursing student, who was admitted on probation and who has failed in her nursing subjects, may
compel her school to readmit her for enrollment.
Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an institution of
higher learning to set academic standards cannot be utilized to discriminate against students who exercise their
constitutional rights to speech and assembly, for otherwise there win be a violation of their right to equal protection
[At p. 711]
6. Capitol Medical Center and Licup.
In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol Medical
Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of San Carlos, G.R. No.
85839, October 19, 1989, both decided by the First Division of the Court.
We find the issues raised and resolved in these two decisions dissimilar from the issues in the present case.
In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the school because of
problems emanating from a labor dispute between the school and its faculty. The Court ruled that the students had no
clear legal right to demand the reopening of the school.
On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural due process
before disciplinary action was taken against them. Thus, the Court stated:
The Court finds no cogent basis for the protestations of petitioners that they were deprived of due
process of law and that the investigation conducted was far from impartial and fair. On the contrary,
what appear from the record is that the charges against petitioners were adequately established in an
appropriate investigation. The imputation of bias and partiality is not supported by the record. . . .
Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to wit:
While it is true that the students are entitled to the right to pursue their education, the USC as an
educational institution is also entitled to pursue its academic freedom and in the process has the
concommitant right to see to it that this freedom is not jeopardized.
True, an institution of learning has a contractual obligation to afford its students a fair opportunity to
complete the course they seek to pursue. However, when a student commits a serious breach of
discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the
court should not review the discretion of university authorities. (Emphasis supplied.)
7. The Instant Case.
To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their answer
filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing grades, to wit:
a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form
137 which is a pre-requisite to his re- enrollment and to his continuing as a student of Mabini;
b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4)
subjects as well as no grades in two (2) subjects;
c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades;
d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already
enrolled at Ago Foundation;
e) Joselito Villalon has incomplete grades in nine (9) subjects;
f) Luis Santos has failed in one (1) subject;
g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1)
subject;
h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more
objects and has no grade in one (1) subject. [Rollo, p. 79.]
Petitioners have not denied this, but have countered this allegation as follows:
xxx xxx xxx
(11) Petitioners were and are prepared to show, among others, that:
 a) Three of the 13 of them were graduating. (Admitted in the Answer.)
b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only
8 of the 13 as with deficiencies.)
c) Their breach of discipline, if any, was not serious.
d) The improper conduct attributed to them was during the exercise of the cognate rights of free
speech and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as
shown even in the Answer.)
e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted
in the Answer; even Alcuaz required due process.)
f) Respondents admit students with worse deficiencies — a clear case of discrimination against
petitioners for their role in the student rally. (An equal protection question.)
g) Respondent school is their choice institution near their places of residence which they can afford to
pay for tertiary education, of which they have already lost one-and-a-half school-years — in itself
punishment enough. [Rollo, p. 86].
Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes Banares,
Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without just cause and, hence,
should be allowed to re-enroll.
On the other hand, it does not appear that the petitioners were afforded due process, in the manner expressed
inGuzman, before they were refused re-enrollment. In fact, it would appear from the pleadings that the decision to
refuse them re-enrollment because of failing grades was a mere afterthought. It is not denied that what incurred the ire
of the school authorities was the student mass actions conducted in February 1988 and which were led and/or
participated in by petitioners. Certainly, excluding students because of failing grades when the cause for the action
taken against them undeniably related to possible breaches of discipline not only is a denial of due process but also
constitutes a violation of the basic tenets of fair play.
Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex Magana,
Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered marked academic
deficiency within the context of the Court's decision in Villar.
Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George (Jorge)
Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures were incurred in only
one semester or through the course of several semesters of study in the school. Neither are the academic standards of
respondent school, from which we can gauge whether or not these students are academically deficient, alleged by
respondents. Thus, while the prerogative of schools to set academic standards is recognized, we cannot affirm
respondent school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information.
With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such fact alone, if
true, will not bar him from seeking readmission in respondent school.
However, these should not be taken to mean that no disciplinary action could have been taken against petitioners for
breach of discipline if the facts had so warranted. In line with the Court's ruling in Malabanan, petitioners could have
been subjected to disciplinary proceedings in connection with the February 1988 mass actions. But the penalty that
could have been imposed must be commensurate to the offense committed and, as set forth inGuzman, it must be
imposed only after the requirements of procedural due process have been complied with. This is explicit from the
Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon
any student, except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated
and only after due investigation shall have been conducted."
But this matter of disciplinary proceedings and the imposition of administrative sanctions have become moot and
academic. Petitioners, who have been refused readmission or re-enrollment and who have been effectively excluded
from respondent school for four (4) semesters, have already been more than sufficiently penalized for any breach of
discipline they might have committed when they led and participated in the mass actions that, according to
respondents, resulted in the disruption of classes. To still subject them to disciplinary proceedings would serve no
useful purpose and would only further aggravate the strained relations between petitioners and the officials of
respondent school which necessarily resulted from the heated legal battle here, in the Court of Appeals and before the
trial court.
WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and February 24,
1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to allow the re- enrollment
of petitioners, if they are still so minded, without prejudice to its taking the appropriate action as to petitioners Ariel
Non, Joselito Villalon, George (Jorge) Dayaon and Daniel Torres, if it is shown by their records (Form 137) that they
have failed to satisfy the school's prescribed academic standards.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Paras, Gancayco, Bidin, Medialdea and Regalado, JJ., concur.
Griño-Aquino, J., is on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Like Mr. Justice Teodoro R. Padilla, I had concurred in the majority opinion in Alcuaz, et al., vs. Philippine School of
Business Administration, et al., G.R. No. 76353, 2 May 1988, 161 SCRA 7.
But, as I had expressed in my vote on the Motion for Reconsideration in the said Alcuaz case "Except for the general
statement that students' enrollment is limited to per semester, I concur."
In other words, I agree with Mme. Justice Cortes that the "termination of contract doctrine" should be overturned for
being a doctrinal error. It is now clear (it was quoted out of context before) that paragraph 137 of the Manual of
Regulations for Public Schools falls under Section VII on Tuition and Other Fees and is intended merely to protect
schools wherein tuition fees are collected and paid on installment basis. It cannot be construed to mean that a student
shall be enrolled for only one semester.
As to the power of discipline, my view still is that schools should retain that prerogative, with the caveat that the
penalty they impose be proportionate to the offense committed.
PADILLA, J., concurring:
I concurred in the majority opinion in Alcuaz, et al. vs. Philippine School of Business Administration, et al., G.R. No.
76353, 2 May 1988, 161 SCRA 7 including therefore that portion of the opinion which held that under par. 137,
Manual of Regulations for Private Schools, a college student in a private school is enrolled only for one (1) semester
and that after each semester "the school cannot be compelled to enter into another contract with said students . . . ."
However, after carefully considering the decision penned by Madame Justice Cortes in the case at bar, I am inclined to
agree with her that "the contract between the school and students is not an ordinary contract. It is imbued with public
interest, considering the high priority given by the Constitution to education . . . " (p. 15, Decision).
It would indeed appear that, consistent with this constitutional priority given to education, par. 107 of the Manual of
Regulations for Private Schools should be underscored. It provides that every student has the right to enroll in any
school college or university upon meeting its specific requirements and reasonable regulations; . . . and that "the
student is presumed to be qualified for enrollment for the entire period he is expected to complete the course,without
prejudice to his right to transfer."
It should be stressed, however, that this right of students to enroll is not designed to leave schools completely helpless
to deny enrollment or re- enrollment. For, par. 107 itself of the Manual of Regulations for Private Schools still
recognizes the right of the school to refuse enrollment in case of academic deficiency or violation of disciplinary
regulations of the school.
SARMIENTO, J., concurring:
I have always held that schools are not free to penalize, by administrative sanction or outright expulsion, students on
account alone of the fact that they had taken part in mass actions or assemblies. 1
Students, as all persons, enjoy freedom of speech and assembly, right granted by the Constitution, and one nobody
may abridge. The opinion of the majority reaffirms this fundamental principle.
This case also clarifies the true import of Paragraph 137 of the Manual of Regulations for Private Schools, i.e., that it
is intended merely to enable schools to collect fees for the entire semester although the student may not have
completed the semester. But in no way may learning institutions use the provision as an excuse to dismiss students
after one semester on the ground of termination of contract.
The "termination of contract" theory espoused by Alcuaz v. Philippine School of Business Administration 2 has indeed
allowed schools to circumvent the guarantees of the Constitution by denying "erring" students of their right to enroll,
when the single "error" committed by the students was to participate in political activities. As I said, our students have
as much right to disagree — whether against school policies or government programs, and whether in or out of the
school compound — and no prior or subsequent penalty may be inflicted on account of such acts alone.
To be sure, the school may punish students for breach of discipline, as, say, for breaking chairs or window panes or for
disrupting classes in the course of a demonstration, but they may be penalized for those actions alone and not because
of the content of their speech or the vociferousness with which it was said .3 Moreover, violations of school discipline
must be judged on a case to case basis and measured depending on gravity before school authorities may legitimately
act. I do not think that the fact that a demonstration has disrupted ongoing classes is a ground for penalizing students
taking part therein because a demonstration, from its very nature, is likely to disrupt classes. 4 The school must
convincingly show that the demonstrators had deliberately turned to lawlessness, say, by barricading the school gate
or the classroom entrances or otherwise prevented non-demonstrating students or members of the faculty from
attending a class or publishing one by threats or intimidation. Only in that sense may school heads validly invoke
"disruption of classes."
As far as discipline is concerned, this Court has laid down guidelines for proper school action. In Malabanan
v.Ramento, as in the present case, we held that the punishment must fit the crime, and in Guzman v. National
University,5 we ruled that before any penalty may be imposed, the students concerned should be allowed to be heard
by themselves or representatives. In all cases, the courts should be wary — and the school authorities must themselves
convince the judge that punishment meted out is due to a real injury done to the school and not for the fact that the
students had simply expressed their constitutional right to disagree.
As to failing grades, I agree that, as we held in Villar v. Technological Institute of the Philippines, 6 academic
deficiency is a legal basis for, among other things, expulsion. However, as Villar warned, educational institutions must
set standard "to determine under what circumstances failing grades suffice for the expulsion of students, 7and that
such standards "should be followed meticulously," 8 and that they "cannot be utilized to discriminate against those
students who exercise their constitutional rights to peaceable assembly and free speech." 9 What this decision makes
plain is that the school must pre-set the ground rules for either suspension or expulsion of students by reason of falling
marks which must be observed with reasonable uniformity. The school can not use it to spring surprises on students
with failing grades, who also happen to be politically active in the campus, after the authorities had long tolerated
their poor performance. In this case, our courts must also exercise caution that, as "disruption of classes", resort to
"failing grades" is not done to evade the constitutional mandates.
I take note of the increasing practice by school heads to simply bar students from enrollment for a host of excuses as a
result of their exercise of constitutional rights. I am gratified that the majority has put an end to this practice.
I concur fully with Mme. Justice Irene Cortes' ponencia.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
Like Mr. Justice Teodoro R. Padilla, I had concurred in the majority opinion in Alcuaz, et al., vs. Philippine School of
Business Administration, et al., G.R. No. 76353, 2 May 1988, 161 SCRA 7.
But, as I had expressed in my vote on the Motion for Reconsideration in the said Alcuaz case "Except for the general
statement that students' enrollment is limited to per semester, I concur."
In other words, I agree with Mme. Justice Cortes that the "termination of contract doctrine" should be overturned for
being a doctrinal error. It is now clear (it was quoted out of context before) that paragraph 137 of the Manual of
Regulations for Public Schools falls under Section VII on Tuition and Other Fees and is intended merely to protect
schools wherein tuition fees are collected and paid on installment basis. It cannot be construed to mean that a student
shall be enrolled for only one semester.
As to the power of discipline, my view still is that schools should retain that prerogative, with the caveat that the
penalty they impose be proportionate to the offense committed.
PADILLA, J., concurring:
I concurred in the majority opinion in Alcuaz, et al. vs. Philippine School of Business Administration, et al., G.R. No.
76353, 2 May 1988, 161 SCRA 7 including therefore that portion of the opinion which held that under par. 137,
Manual of Regulations for Private Schools, a college student in a private school is enrolled only for one (1) semester
and that after each semester "the school cannot be compelled to enter into another contract with said students . . . ."
However, after carefully considering the decision penned by Madame Justice Cortes in the case at bar, I am inclined to
agree with her that "the contract between the school and students is not an ordinary contract. It is imbued with public
interest, considering the high priority given by the Constitution to education . . . " (p. 15, Decision).
It would indeed appear that, consistent with this constitutional priority given to education, par. 107 of the Manual of
Regulations for Private Schools should be underscored. It provides that every student has the right to enroll in any
school college or university upon meeting its specific requirements and reasonable regulations; . . . and that "the
student is presumed to be qualified for enrollment for the entire period he is expected to complete the course,without
prejudice to his right to transfer."
It should be stressed, however, that this right of students to enroll is not designed to leave schools completely helpless
to deny enrollment or re- enrollment. For, par. 107 itself of the Manual of Regulations for Private Schools still
recognizes the right of the school to refuse enrollment in case of academic deficiency or violation of disciplinary
regulations of the school.
SARMIENTO, J., concurring:
I have always held that schools are not free to penalize, by administrative sanction or outright expulsion, students on
account alone of the fact that they had taken part in mass actions or assemblies. 1
Students, as all persons, enjoy freedom of speech and assembly, right granted by the Constitution, and one nobody
may abridge. The opinion of the majority reaffirms this fundamental principle.
This case also clarifies the true import of Paragraph 137 of the Manual of Regulations for Private Schools, i.e., that it
is intended merely to enable schools to collect fees for the entire semester although the student may not have
completed the semester. But in no way may learning institutions use the provision as an excuse to dismiss students
after one semester on the ground of termination of contract.
The "termination of contract" theory espoused by Alcuaz v. Philippine School of Business Administration 2 has indeed
allowed schools to circumvent the guarantees of the Constitution by denying "erring" students of their right to enroll,
when the single "error" committed by the students was to participate in political activities. As I said, our students have
as much right to disagree — whether against school policies or government programs, and whether in or out of the
school compound — and no prior or subsequent penalty may be inflicted on account of such acts alone.
To be sure, the school may punish students for breach of discipline, as, say, for breaking chairs or window panes or for
disrupting classes in the course of a demonstration, but they may be penalized for those actions alone and not because
of the content of their speech or the vociferousness with which it was said .3 Moreover, violations of school discipline
must be judged on a case to case basis and measured depending on gravity before school authorities may legitimately
act. I do not think that the fact that a demonstration has disrupted ongoing classes is a ground for penalizing students
taking part therein because a demonstration, from its very nature, is likely to disrupt classes. 4 The school must
convincingly show that the demonstrators had deliberately turned to lawlessness, say, by barricading the school gate
or the classroom entrances or otherwise prevented non-demonstrating students or members of the faculty from
attending a class or publishing one by threats or intimidation. Only in that sense may school heads validly invoke
"disruption of classes."
As far as discipline is concerned, this Court has laid down guidelines for proper school action. In Malabanan
v.Ramento, as in the present case, we held that the punishment must fit the crime, and in Guzman v. National
University,5 we ruled that before any penalty may be imposed, the students concerned should be allowed to be heard
by themselves or representatives. In all cases, the courts should be wary — and the school authorities must themselves
convince the judge that punishment meted out is due to a real injury done to the school and not for the fact that the
students had simply expressed their constitutional right to disagree.
As to failing grades, I agree that, as we held in Villar v. Technological Institute of the Philippines, 6 academic
deficiency is a legal basis for, among other things, expulsion. However, as Villar warned, educational institutions must
set standard "to determine under what circumstances failing grades suffice for the expulsion of students, 7and that
such standards "should be followed meticulously," 8 and that they "cannot be utilized to discriminate against those
students who exercise their constitutional rights to peaceable assembly and free speech." 9 What this decision makes
plain is that the school must pre-set the ground rules for either suspension or expulsion of students by reason of falling
marks which must be observed with reasonable uniformity. The school can not use it to spring surprises on students
with failing grades, who also happen to be politically active in the campus, after the authorities had long tolerated
their poor performance. In this case, our courts must also exercise caution that, as "disruption of classes", resort to
"failing grades" is not done to evade the constitutional mandates.
I take note of the increasing practice by school heads to simply bar students from enrollment for a host of excuses as a
result of their exercise of constitutional rights. I am gratified that the majority has put an end to this practice.
I concur fully with Mme. Justice Irene Cortes' ponencia.

=====================================================================================

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,
FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a legitimate
labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners
Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang on March 4, 1969,
in protest against alleged abuses of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M.
to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M.,
respectively); and that they informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the respondent Court
reproduced the following stipulation of facts of the parties — parties —
3. That on March 2, 1969 complainant company learned of the projected mass demonstration at
Malacañang in protest against alleged abuses of the Pasig Police Department to be participated by the
first shift (6:00 AM-2:00 PM) workers as well as those working in the regular shifts (7:00 A.M. to
4:00 PM and 8:00 AM to 5:00 PM) in the morning of March 4, 1969;
 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the
Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de
Leon, Jr., (3) and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2)
Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin
Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass demonstration at
Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be
cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that
the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly prejudice the normal operation of
the Company. For which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without previous leave of
absence approved by the Company, particularly , the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company represented
by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodolfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company
reiterated and appealed to the PBMEO representatives that while all workers may join the
Malacañang demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV:
NO LOCKOUT — NO STRIKE'. All those who will not follow this warning of the Company shall
be dismiss; De Leon reiterated the Company's warning that the officers shall be primarily liable being
the organizers of the mass demonstration. The union panel countered that it was rather too late to
change their plans inasmuch as the Malacañang demonstration will be held the following morning;
and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which
was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING
REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.'
(Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas
of the respondent Company that the first shift workers should not be required to participate in the demonstration and
that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on
March 4, 1969, respondent Company prior notice of the mass demonstration on March 4, 1969, with the respondent
Court, a charge against petitioners and other employees who composed the first shift, charging them with a "violation
of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint
affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding
complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda
P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA because they
gave the respondent Company prior notice of the mass demonstration on March 4, 1969; that the said mass
demonstration was a valid exercise of their constitutional freedom of speech against the alleged abuses of some Pasig
policemen; and that their mass demonstration was not a declaration of strike because it was not directed against the
respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M. Salvador, in an
order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in bad faith and herein
petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin
Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for perpetrating the said unfair labor practice
and were, as a consequence, considered to have lost their status as employees of the respondent Company (Annex "F",
pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.); and that they filed
on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said
order dated September 15, 1969, on the ground that it is contrary to law and the evidence, as well as asked for ten (10)
days within which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended
(Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company averred that
herein petitioners received on September 22, 1969, the order dated September 17 (should be September 15), 1969;
that under Section 15 of the amended Rules of the Court of Industrial Relations, herein petitioners had five (5) days
from September 22, 1969 or until September 27, 1969, within which to file their motion for reconsideration; and that
because their motion for reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,1 which held among others, that a motion for extension of the five-day period for the filing of a motion for
reconsideration should be filed before the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11, 1969, in support
of their motion for reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration of herein
petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its Rules (Annex "J", pp.
74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969 and
addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as
amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration shall be filed within five
(5) days from receipt of its decision or order and that an appeal from the decision, resolution or order of the C.I.R.,
sitting en banc, shall be perfected within ten (10) days from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order dated
October 9, 1969, on the ground that their failure to file their motion for reconsideration on time was due to excusable
negligence and honest mistake committed by the president of the petitioner Union and of the office clerk of their
counsel, attaching thereto the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein petitioners
filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central
core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be
"protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person."2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of
opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of
those who have no patience with general principles."3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects
from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and
to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free
speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote;
they depend on the outcome of no elections."4 Laski proclaimed that "the happiness of the individual, not the well-
being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits
to the authority it was entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities
reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or
hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but
also to benefit the majority who refuse to listen.6 And as Justice Douglas cogently stresses it, the liberties of one are
the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.7
(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential
to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the
citizens can participate not merely in the periodic establishment of the government through their suffrage but also in
the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is
recognized.8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in our society" and
the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they "need
breathing space to survive," permitting government regulation only "with narrow specificity."9
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of
oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and political institutions; 10 and such priority "gives these liberties
the sanctity and the sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational
relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor
discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. 12 On the
other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the
opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo inGonzales vs. Comelec, supra, like
Justices Douglas, Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of the
press as well as of peaceful assembly and of petition for redress of grievances are absolute when directed against
public officials or "when exercised in relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice Vinson is partial to
the improbable danger rule formulated by Chief Judge Learned Hand, viz. — whether the gravity of the evil,
discounted by its improbability, justifies such invasion of free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass demonstration was not a declaration of
strike, concluded that by their "concerted act and the occurrence temporary stoppage of work," herein petitioners are
guilty bargaining in bad faith and hence violated the collective bargaining agreement with private respondent
Philippine Blooming Mills Co., inc.. Set against and tested by foregoing principles governing a democratic society,
such conclusion cannot be sustained. The demonstration held petitioners on March 4, 1969 before Malacañang was
against alleged abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of their right of
assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief
Executive, again the police officers of the municipality of Pasig. They exercise their civil and political rights for their
mutual aid protection from what they believe were police excesses. As matter of fact, it was the duty of herein private
respondent firm to protect herein petitioner Union and its members fro the harassment of local police officers. It was
to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so
that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently their
respective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede
for its employees with the local police. Was it securing peace for itself at the expenses of its workers? Was it also
intimidated by the local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend
its own employees all the more weakened the position of its laborers the alleged oppressive police who might have
been all the more emboldened thereby subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged
persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their
very survival, utilizing only the weapons afforded them by the Constitution — the untrammelled enjoyment of their
basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of
its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their
property rights. Such apprehended loss or damage would not spell the difference between the life and death of the firm
or its owners or its management. The employees' pathetic situation was a stark reality — abused, harassment and
persecuted as they believed they were by the peace officers of the municipality. As above intimated, the condition in
which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right
to individual existence as well as that of their families. Material loss can be repaired or adequately compensated. The
debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary
terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for
retribution, denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for
redress of grievances — over property rights has been sustained. 18 Emphatic reiteration of this basic tenet as a
coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming
ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for
him who toils so that capital can produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and
hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of
inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the employees, according to the respondent
Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular working hours." The strain
construction of the Court of Industrial Relations that a stipulated working shifts deny the workers the right to stage
mass demonstration against police abuses during working hours, constitutes a virtual tyranny over the mind and life
the workers and deserves severe condemnation. Renunciation of the freedom should not be predicated on such a
slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined by any
court, such an injunction would be trenching upon the freedom expression of the workers, even if it legally appears to
be illegal picketing or strike. 20 The respondent Court of Industrial Relations in the case at bar concedes that the mass
demonstration was not a declaration of a strike "as the same not rooted in any industrial dispute although there is
concerted act and the occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate in the demonstration and that
they suggested to the Union that only the first and regular shift from 6 A.M. to 2 P.M. should report for work in order
that loss or damage to the firm will be averted. This stand failed appreciate the sine qua non of an effective
demonstration especially by a labor union, namely the complete unity of the Union members as well as their total
presence at the demonstration site in order to generate the maximum sympathy for the validity of their cause but also
immediately action on the part of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are reduced by
one-third, then by that much the circulation of the issues raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their
members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and
abet continued alleged police persecution. At any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made arrangements to counteract or prevent whatever losses it
might sustain by reason of the absence of its workers for one day, especially in this case when the Union requested it
to excuse only the day-shift employees who will join the demonstration on March 4, 1969 which request the Union
reiterated in their telegram received by the company at 9:50 in the morning of March 4, 1969, the day of the mass
demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion on the part of the firm in
rejecting the request of the Union for excuse from work for the day shifts in order to carry out its mass demonstration.
And to regard as a ground for dismissal the mass demonstration held against the Pasig police, not against the
company, is gross vindictiveness on the part of the employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent
firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the
subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the
freedom of expression, freedom of assembly and freedom petition for redress of grievances, the respondent firm
committed an unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875,
otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right
"to engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair labor
practice for an employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in Section
Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent firm on March
4, 1969, was for their mutual aid and protection against alleged police abuses, denial of which was interference with
or restraint on the right of the employees to engage in such common action to better shield themselves against such
alleged police indignities. The insistence on the part of the respondent firm that the workers for the morning and
regular shift should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated, "a
potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at least equal protection as the concerted action
of employees in giving publicity to a letter complaint charging bank president with immorality, nepotism, favoritism
an discrimination in the appointment and promotion of ban employees. 23 We further ruled in the Republic Savings
Bank case, supra, that for the employees to come within the protective mantle of Section 3 in relation to Section 4(a-
1) on Republic Act No. 875, "it is not necessary that union activity be involved or that collective bargaining be
contemplated," as long as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated September 15,
1969, the company, "while expressly acknowledging, that the demonstration is an inalienable right of the Union
guaranteed by the Constitution," nonetheless emphasized that "any demonstration for that matter should not unduly
prejudice the normal operation of the company" and "warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work the following morning (March
4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees
from joining the mass demonstration. However, the issues that the employees raised against the local police, were
more important to them because they had the courage to proceed with the demonstration, despite such threat of
dismissal. The most that could happen to them was to lose a day's wage by reason of their absence from work on the
day of the demonstration. One day's pay means much to a laborer, more especially if he has a family to support. Yet,
they were willing to forego their one-day salary hoping that their demonstration would bring about the desired relief
from police abuses. But management was adamant in refusing to recognize the superior legitimacy of their right of
free speech, free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to demand from the workers proof of the truth of
the alleged abuses inflicted on them by the local police, it thereby concedes that the evidence of such abuses should
properly be submitted to the corresponding authorities having jurisdiction over their complaint and to whom such
complaint may be referred by the President of the Philippines for proper investigation and action with a view to
disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the demonstration "paralyzed to a
large extent the operations of the complainant company," the respondent Court of Industrial Relations did not make
any finding as to the fact of loss actually sustained by the firm. This significant circumstance can only mean that the
firm did not sustain any loss or damage. It did not present evidence as to whether it lost expected profits for failure to
comply with purchase orders on that day; or that penalties were exacted from it by customers whose orders could not
be filled that day of the demonstration; or that purchase orders were cancelled by the customers by reason of its failure
to deliver the materials ordered; or that its own equipment or materials or products were damaged due to absence of its
workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of wages for its hundreds
of workers, cost of fuel, water and electric consumption that day. Such savings could have amply compensated for
unrealized profits or damages it might have sustained by reason of the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the right to petition for
redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers for proceeding with the
demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the
promotion of social justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall afford protection
to labor ...". Respondent Court of Industrial Relations as an agency of the State is under obligation at all times to give
meaning and substance to these constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the Industrial Peace Act,
the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest
by encouraging and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most unfortunate in
the case at bar that respondent Court of Industrial Relations, the very governmental agency designed therefor, failed to
implement this policy and failed to keep faith with its avowed mission — its raison d'etre — as ordained and directed
by the Constitution.
V
It has been likewise established that a violation of a constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no rights. Relief from a criminal conviction secured at the
sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even long after the finality of
the judgment. Thus, habeas corpus is the remedy to obtain the release of an individual, who is convicted by final
judgment through a forced confession, which violated his constitutional right against self-incrimination; 25 or who is
denied the right to present evidence in his defense as a deprivation of his liberty without due process of law, 26 even
after the accused has already served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional immunities of
petitioners. Both failed to accord preference to such rights and aggravated the inhumanity to which the aggrieved
workers claimed they had been subjected by the municipal police. Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself of jurisdiction and the questioned orders it issued in the instant
case are a nullity. Recognition and protection of such freedoms are imperative on all public offices including the
courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not be nullified by
mere procedural rule promulgated by the Court Industrial Relations exercising a purely delegate legislative power,
when even a law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is no
time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the
printing of one article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised
when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing the
period for appeal. The battle then would be reduced to a race for time. And in such a contest between an employer and
its laborer, the latter eventually loses because he cannot employ the best an dedicated counsel who can defend his
interest with the required diligence and zeal, bereft as he is of the financial resources with which to pay for competent
legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should filed within
five (5) days from notice thereof and that the arguments in support of said motion shall be filed within ten (10) days
from the date of filing of such motion for reconsideration (Sec. 16). As above intimated, these rules of procedure were
promulgated by the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on September 22,
1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that they could have filed it on
September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of the petitioning
employees? Or more directly and concretely, does the inadvertent omission to comply with a mere Court of Industrial
Relations procedural rule governing the period for filing a motion for reconsideration or appeal in labor cases,
promulgated pursuant to a legislative delegation, prevail over constitutional rights? The answer should be obvious in
the light of the aforecited cases. To accord supremacy to the foregoing rules of the Court of Industrial Relations over
basic human rights sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and regulations, but also does violence
to natural reason and logic. The dominance and superiority of the constitutional right over the aforesaid Court of
Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial Relations rule as
applied in this case does not implement or reinforce or strengthen the constitutional rights affected,' but instead
constrict the same to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court of
Industrial Relations rule, promulgated as it was pursuant to a mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days within which to file
a motion for reconsideration is too short, especially for the aggrieved workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of Appeals and the Supreme Court, a period of
fifteen (15) days has been fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1,
Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could have
been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial are concerned.
It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on the ground that
the order sought to be reconsidered "is not in accordance with law, evidence and facts adduced during the hearing,"
and likewise prays for an extension of ten (10) days within which to file arguments pursuant to Sections 15, 16 and 17
of the Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the arguments were actually
filed by the herein petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required
for the filing of such supporting arguments counted from the filing of the motion for reconsideration. Herein
petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or where the arguments
in suppf such motion are filed beyond the 10 day reglementary period provided for by the Court of Industrial
Relations rules, the order or decision subject of29-a reconsideration becomes final and unappealable. But in all these
cases, the constitutional rights of free expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and defenses presently available must be specifically raised in
the complaint or answer; so that any cause of action or defense not raised in such pleadings, is deemed waived.
However, a constitutional issue can be raised any time, even for the first time on appeal, if it appears that the
determination of the constitutional issue is necessary to a decision of the case, the very lis mota of the case without the
resolution of which no final and complete determination of the dispute can be made. 30 It is thus seen that a procedural
rule of Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the procedural rule of
the Court of Industrial Relations, a creature of Congress, must likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the unfair labor practice charged against them and in their defense to
the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a most compelling
reason to deny application of a Court of Industrial Relations rule which impinges on such human rights.30-a
It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to except a
particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice Barredo in his concurring
opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations without concerning itself about
procedural niceties that do not square with the need to do justice, in any case, without further loss of
time, provided that the right of the parties to a full day in court is not substantially impaired. Thus,
this Court may treat an appeal as a certiorari and vice-versa. In other words, when all the material
facts are spread in the records before Us, and all the parties have been duly heard, it matters little
that the error of the court a quo is of judgment or of jurisdiction. We can then and there render the
appropriate judgment. Is within the contemplation of this doctrine that as it is perfectly legal and
within the power of this Court to strike down in an appeal acts without or in excess of jurisdiction or
 committed with grave abuse of discretion, it cannot be beyond the admit of its authority, in
appropriate cases, to reverse in a certain proceed in any error of judgment of a court a quo which
cannot be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do not
entertain, on whether or not the errors this Court has found in the decision of the Court of Appeals are
short of being jurisdiction nullities or excesses, this Court would still be on firm legal grounds should
it choose to reverse said decision here and now even if such errors can be considered as mere
mistakes of judgment or only as faults in the exercise of jurisdiction, so as to avoid the unnecessary
return of this case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in this particular case at bar would an
unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers, whose basic human
freedoms, including the right to survive, must be according supremacy over the property rights of their employer firm
which has been given a full hearing on this case, especially when, as in the case at bar, no actual material damage has
be demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the Constitution renders more imperative the
suspension of a Court of Industrial Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It should be stressed that the application in
the instant case Section 15 of the Court of Industrial Relations rules relied upon by herein respondent firm is
unreasonable and therefore such application becomes unconstitutional as it subverts the human rights of petitioning
labor union and workers in the light of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference to the case at
is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of
Industrial Relations to "act according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo, speaking for the
Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners in the motion for new trial is not
"newly discovered," as such term is understood in the rules of procedure for the ordinary courts, We
hold that such criterion is not binding upon the Court of Industrial Relations. Under Section 20 of
Commonwealth Act No. 103, 'The Court of Industrial Relations shall adopt its, rules or procedure and
shall have such other powers as generally pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or controversy and in exercising any duties
and power under this Act, the Court shall act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall not be bound by any technical rules
of legal evidence but may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities applicable to
ordinary courts. Said court is not even restricted to the specific relief demanded by the parties but
may issue such orders as may be deemed necessary or expedient for the purpose of settling the
dispute or dispelling any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No.
46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons,
We believe that this provision is ample enough to have enabled the respondent court to consider
whether or not its previous ruling that petitioners constitute a minority was founded on fact, without
regard to the technical meaning of newly discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315;
Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is to rule in
effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek the sanctuary of human
freedoms secured to them by the fundamental law, simply because their counsel — erroneously believing that he
received a copy of the decision on September 23, 1969, instead of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which practically is only one day late considering that September 28, 1969 was a
Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of justice, for the
attainment of which such rules have been devised. Summarizing the jurisprudence on this score, Mr. Justice Fernando,
speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910]. The
Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600
[1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2
SCRA 675.), decided as far back as 1910, "technicality. when it deserts its proper-office as an aid to
justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts."
(Ibid., p, 322.) To that norm, this Court has remained committed. The late Justice Recto in Blanco v.
Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the interpretation of procedural rule
should never "sacrifice the ends justice." While "procedural laws are no other than technicalities"
view them in their entirety, 'they were adopted not as ends themselves for the compliance with which
courts have organized and function, but as means conducive to the realization the administration of
the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in the highly rhetorical
language Justice Felix, to "a sacrifice of substantial rights of a litigant in altar of sophisticated
technicalities with impairment of the sacred principles of justice." (Potenciano v. Court of Appeals,
104 Phil. 156, 161 [1958]). As succinctly put by Justice Makalintal, they "should give way to the
realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the
latest decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier
formulation of Justice Labrador that rules of procedure "are not to be applied in a very rigid,
technical sense"; but are intended "to help secure substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal or
termination of the employment of the petitioning eight (8) leaders of the Union is harsh for a one-day absence from
work. The respondent Court itself recognized the severity of such a sanction when it did not include the dismissal of
the other 393 employees who are members of the same Union and who participated in the demonstration against the
Pasig police. As a matter of fact, upon the intercession of the Secretary of Labor, the Union members who are not
officers, were not dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20, respondent's Brief; Annexes
"A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the 400 or so employee
participated in the demonstration, for which reason only the Union and its thirteen (13) officers were specifically
named in the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all, of the
morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in
operation that day and did not sustain any damage.
The appropriate penalty — if it deserves any penalty at all — should have been simply to charge said one-day absence
against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty,
since as aforestated the Union leaders depend on their wages for their daily sustenance as well as that of their
respective families aside from the fact that it is a lethal blow to unionism, while at the same time strengthening the
oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who consciously seek to destroy our
system of Government, but from men of goodwill — good men who allow their proper concerns to
blind them to the fact that what they propose to accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we must remember, however, is
thatpreservation of liberties does not depend on motives. A suppression of liberty has the same effect
whether the suppress or be a reformer or an outlaw. The only protection against misguided zeal is a
constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each
surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle
over the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all are protected.
 ... But even if we should sense no danger to our own liberties, even if we feel secure because we
belong to a group that is important and respected, we must recognize that our Bill of Rights is a code
of fair play for the less fortunate that we in all honor and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim that they are being subjected to indignities by the local police, It
was more expedient for the firm to conserve its income or profits than to assist its employees in their fight for their
freedoms and security against alleged petty tyrannies of local police officers. This is sheer opportunism. Such
opportunism and expediency resorted to by the respondent company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank dismissed eight
(8) employees for having written and published "a patently libelous letter ... to the Bank president demanding his
resignation on the grounds of immorality, nepotism in the appointment and favoritism as well as discrimination in the
promotion of bank employees." Therein, thru Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the respondents. Assuming that the latter
acted in their individual capacities when they wrote the letter-charge they were nonetheless protected
for they were engaged in concerted activity, in the exercise of their right of self organization that
includes concerted activity for mutual aid and protection, (Section 3 of the Industrial Peace Act ...)
This is the view of some members of this Court. For, as has been aptly stated, the joining in protests
or demands, even by a small group of employees, if in furtherance of their interests as such, is a
concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be
involved or that collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for what it calls the respondents' libel
in giving undue publicity to their letter-charge. To be sure, the right of self-organization of employees
is not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the
employer to discharge for cause (Philippine Education Co. v. Union of Phil. Educ. Employees, L-
13773, April 29, 1960) is undenied. The Industrial Peace Act does not touch the normal exercise of
the right of the employer to select his employees or to discharge them. It is directed solely against the
abuse of that right by interfering with the countervailing right of self organization (Phelps Dodge
Corp. v. NLRB 313 U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity that the Bank's conduct, identified as an
interference with the employees' right of self-organization or as a retaliatory action, and/or as a
refusal to bargain collectively, constituted an unfair labor practice within the meaning and intendment
of section 4(a) of the Industrial Peace Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify labor unionism in the Republic Savings case,
supra, where the complaint assailed the morality and integrity of the bank president no less, such recognition and
protection for free speech, free assembly and right to petition are rendered all the more justifiable and more imperative
in the case at bar, where the mass demonstration was not against the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated September 15 and
October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of their separation
from the service until re instated, minus one day's pay and whatever earnings they might have realized from other
sources during their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.
The background of this case may be found principally in the stipulation of facts upon which the decision under review
is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing and
operating under and by virtue of the laws of the Philippines with corporate address at 666 Muelle de
Binondo, Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a legitimate labor
organization, and the respondents herein are either officers of respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant company learned of the projected mass demonstration at
Malacañang in protest against alleged abuses of the Pasig Police Department to be participated by the
first shift (6:00 AM — 2:00 PM workers as well as those working in the regular shifts (7:00 A.M. to
4:00 PM and 8:00 AM to 5:00 PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the
Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty.
Cesareo S. de Leon, Jr. (3) and all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass demonstration at
Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as the spokesman of the
union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot
be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that
the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly prejudice the normal operation of
the Company. For which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without previous leave of
absence approved by the Company, particularly the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company represented
by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodulfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company
reiterated and appealed to the PBMEO representatives that while all workers may join the
Malacañang demonstration, the workers for the first and regular shift of March 4, 1969 should be
 excused from joining the demonstration and should report for work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV
"NO LOCKOUT — NO STRIKE". All those who will not follow this warning of the Company shall
be dismissed; De Leon reiterated the Company's warning that the officers shall be primarily liable
being the organizers of the mass demonstration. The union panel countered that it was rather too late
to change their plans inasmuch as the Malacañang demonstration will be held the following morning;
and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which
was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING
REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected demonstration did in fact occur and in the process paralyzed to a
large extent the operations of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a complaint for
Unfair Labor Practice against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first shift, in
violation of the existing collective bargaining agreement and without filing the necessary notice as
provided for by law, failed to report for work, amounting to a declaration of strike;
4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to Sections 13, 14
and 15 of Republic Act No. 875, and of the collective bargaining agreement. (Pars. 3 and 4, Annex
C.)
After due hearing, the court rendered judgment, the dispositive part of which read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is found
guilty of bargaining in bad faith and is hereby ordered to cease and desist from further committing
the same and its representatives namely: respondent Florencio Padrigano, Rufino Roxas, Mariano de
Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act, are hereby
considered to have lost their status as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex
F.)
Although it is alleged in the petition herein that petitioners were notified of this decision on September 23, 1969, there
seems to be no serious question that they were actually served therewith on September 22, 1969. In fact, petitioners
admitted this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969 and filed with the
industrial court on the following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of the court's
decision, that petitioners filed their motion for reconsideration with the industrial court; as it is also not disputed that
they filed their "Arguments in Support of the Respondents' Motion for Reconsideration" only on October 14, 1969.
(See Annex I.) In other words, petitioners' motion for reconsideration was filed two (2) days after the lapse of the five
(5) day period provided for the filing thereof in the rules of the Court of Industrial Relations, whereas the
"Arguments" were filed five (5) days after the expiration of the period therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely, that in view
of the failure of petitioners to file not only their motion for reconsideration but also their arguments in support thereof
within the periods respectively fixed in the rules therefor, the Court of Industrial Relations acted correctly and within
the law in rendering and issuing its impugned order of October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of this Court
in Elizalde & Co. Inc. vs. Court of Industrial Relations1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge Arsenio I.
Martinez, the dispositive part of which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were advanced in
support thereof.
August 21, 1963. Petitioner moved for additional time to file its arguments in support of its motion to
reconsider.
August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking
reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration. Ground
therefor was that the arguments were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the present petition
with this Court.
Upon respondent Perlado's return and petitioner's brief (respondents did not file their brief), the case
is now before us for resolution.
1. That the judgment appealed from is a final judgment — not merely an interlocutory order — there
is no doubt. The fact that there is need for computation of respondent Perlado's overtime pay would
not render the decision incomplete. This in effect is the holding of the Court in Pan American World
Airways System (Philippines) vs. Pan American Employees Association, which runs thus: 'It is next
contended that in ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and thereby rendered
an incomplete decision. We do not believe so. Computation of the overtime pay involves a
mechanical function, at most. And the report would still have to be submitted to the Industrial Court
for its approval, by the very terms of the order itself. That there was no specification of the amount of
overtime pay in the decision did not make it incomplete, since this matter should necessarily be made
clear enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs. CIR, et
al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer the question in
the affirmative.
Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of the trial judge
must do so within five (5) days from the date on which he received notice of the decision, subject of
the motion. Next follows Section 16 which says that the motion must be submitted with arguments
supporting the same. But if said arguments could not be submitted simultaneously with the motion,
the same section commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes a movant that
"(f)ailure to observe the above-specified periods shall be sufficient cause for dismissal of the motion
for reconsideration or striking out of the answer and/or the supporting arguments, as the case may
be".
Not that the foregoing rules stand alone. Jurisprudence has since stabilized the enforceability thereof.
Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro forma motion for reconsideration
was filed out of time its denial is in order pursuant to CIR rules, regardless of whether the arguments
in support of said motion were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where a motion to
reconsider is filed out of time, the order or decision subject of reconsideration comes final. And so
also, where the arguments in support of the motion for reconsideration are filed beyond the ten-day
reglementary period, the pre forma motion for reconsideration although seasonably filed must
nevertheless be denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon the ground that the arguments in support
thereof were filed out of time, the order or decision subject of the motion becomes "final and
unappealable".
We find no difficulty in applying the foregoing rules and pronouncements of this Court in the case
before us. On August 6, petitioner received a copy of the judgment of Judge Arsenio I. Martinez
aforesaid. Petitioner's motion to reconsider — without arguments in support thereof — of August 12
 was filed on time. For, August 11, the end of the five-day reglementary period to file a motion for
reconsideration, was a Sunday. But, actually, the written arguments in support of the said motion
were submitted to the court on August 27. The period from August 12 to August 27, is a space of
fifteen (15) days. Surely enough, said arguments were filed out of time — five (5) days late. And the
judgment had become final.
3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time within which
to present its arguments in support of its motion. Counsel in his petition before this Court pleads that
the foregoing motion was grounded on the 'extremely busy and difficult schedule of counsel which
would not enable him to do so within the stated ten-day reglementary period. The arguments were
only filed on August 27 — five (5) days late, as aforesaid.
The foregoing circumstances will not avail petitioner any. It is to be noted that the motion for
expansion of time was filed only on August 21, that is, one day before the due date which is August
22. It was petitioner's duty to see to it that the court act on this motion forthwith or at least inquire as
to the fate thereof not later than the 22nd of August. It did not. It merely filed its arguments on the
27th.
To be underscored at this point is that "obviously to speed up the disposition of cases", CIR "has a
standing rule against the extension of the ten-day period for filing supporting arguments". That no-
extension policy should have placed petitioner on guard. It should not have simply folded its arms, sit
by supinely and relied on the court's generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that by that time the reglementary period had
expired.
Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the motion for
reconsideration on the ground that the supporting arguments were filed out of time. That ruling in
effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable. We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified, much less
revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of petitioners' pose that
the respondent court erred in holding them guilty of bargaining in bad faith but also to ultimately uphold petitioners'
claim for reinstatement on constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an exposition of the constitutional guarantees
of freedoms of speech and peaceful assembly for redress of grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I am constrained, over and above my sincere
admiration for the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as
presented by petitioners themselves and in the light of its attendant circumstances, this case does not call for the
resolution of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly when it
directly affects individual freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial practices related thereto, however, that even the most valuable of our
constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with substantive and procedural due
process are observed. No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very
often fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside final
judgments only in cases wherein there is a possible denial of due process. I have not come across any instance, and
none is mentioned or cited in the well-documented main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the effect of sanctioning the violation of a constitutional
right, unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from any judicial precedent or reason of
principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and accepted as an
absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and as a consequence its
judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned
almost in passing, does uphold the proposition that "relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus proceedings even after the finality of the judgment".
And, of course, Chavez is correct; as is also Abriol vs. Homeres2 which, in principle, served as its precedent, for the
very simple reason that in both of those cases, the accused were denied due process. In Chavez, the accused was
compelled to testify against himself as a witness for the prosecution; in Abriol, the accused was denied his request to
be allowed to present evidence to establish his defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases are a far cry from the one now before Us.
Here, petitioners do not claim they were denied due process. Nor do they pretend that in denying their motion for
reconsideration, "the respondent Court of Industrial Relations and private firm trenched upon any of their
constitutional immunities ...," contrary to the statement to such effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of petitioners can any direct or indirect assertion be found assailing the
impugned decision of the respondent court as being null and void because it sanctioned a denial of a valued
constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be resolved is whether or not the respondent
Courten banc under the facts and circumstances, should consider the Motion for Reconsideration
filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this Honorable Court
to treat this petition under Rule 43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc of the strict and narrow technical
rules of procedure without taking into account justice, equity and substantial merits of the case.
On the other hand, the complete argument submitted by petitioners on this point in their brief runs
thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably assemble
and petition the government for redress of grievances constitute bargaining in bad faith? and,
Do the facts found by the court below justify the declaration and conclusion that the union was guilty
of bargaining in bad faith meriting the dismissal of the persons allegedly responsible therefore?
2. Was there grave abuse of discretion when the respondent court refused to act one way or another
on the petition for relief from the resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union guilty of bargaining in bad faith and
consequently dismissing the persons allegedly responsible therefor, because such conclusion is
country to the evidence on record; that the dismissal of leaders was discriminatory.
As a result of exercising the constitutional rights of freedom to assemble and petition the duly
constituted authorities for redress of their grievances, the petitioners were charged and then
condemned of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad faith were not borne out by the records.
It was not even alleged nor proven by evidence. What has been alleged and which the respondent
company tried to prove was that the demonstration amounted to a strike and hence, a violation of the
provisions of the "no-lockout — no strike" clause of the collective bargaining agreement. However,
this allegation and proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:
'The company alleges that the walkout because of the demonstration is tantamount to
a declaration of a strike. We do not think so, as the same is not rooted in
any industrial dispute although there is a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis supplied, p. 4, 5th paragraph, Decision.)
 The respondent court's findings that the petitioner union bargained in bad faith is not
tenable because:
First, it has not been alleged nor proven by the respondent company; .
Second, before the demonstration, the petitioner union and the respondent company convened twice
in a meeting to thresh out the matter of demonstration. Petitioners requested that the employees and
workers be excused but the respondent company instead of granting the request or even settling the
matter so that the hours of work will not be disrupted, immediately threatened the employees of mass
dismissal;
Third, the refusal of the petitioner union to grant the request of the company that the first shift shall
be excluded in the demonstration is not tantamount to bargaining in bad faith because the company
knew that the officers of the union belonged to the first shift, and that the union cannot go and lead
the demonstration without their officers. It must be stated that the company intends to prohibit its
officers to lead and join the demonstration because most of them belonged to the first shift; and
Fourth, the findings of the respondent court that the demonstration if allowed will practically give the
union the right to change the working conditions agreed in the CBA is a conclusion of facts,
opinionated and not borne by any evidence on record. The demonstration did not practically change
the terms or conditions of employment because it was only for one (1) day and the company knew
about it before it went through. We can even say that it was the company who bargained in bad faith,
when upon representation of the Bureau of Labor not to dismiss the employees demonstrating, the
company tacitly approved the same and yet while the demonstration was in progress, the company
filed a ULP Charge and consequently dismissed those who participated.
Records of the case show that more or less 400 members of the union participated in the
demonstration and yet, the respondent court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent company. The respondent court should have
taken into account that the company's action in allowing the return of more or less three hundred
ninety two (392) employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees
Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by
the court, while there is a collective bargaining agreement, the union cannot go on demonstration or
go on strike because it will change the terms and conditions of employment agreed in the CBA. It
follows that the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a bad precedent
because it will appear that the rights of the union is solely dependent upon the CBA.
One of the cardinal primary rights which must be respected in proceedings before the Court of
Industrial Relations is that "the decision must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the parties affected." (Interstate Commerce
Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their
rights to know and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27,
1940.)
The petitioners respectfully and humbly submit that there is no scintilla of evidence to support the
findings of the respondent court that the petitioner union bargained in bad faith. Corollary therefore,
the dismissal of the individual petitioners is without basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been guilty of bargaining in bad faith and
consequently lost their status as employees of the respondent company did not meet the meaning and
comprehension of "substantial merits of the case." Bargaining in bad faith has not been alleged in the
complaint (Annex "C", Petition) nor proven during the hearing of the can. The important and
substantial merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on "illegal strike" and
therefore in violation of the "no strike — no lock out" clause of the Collective Bargaining
 Agreement. Petitioners respectfully reiterate and humbly submit, that the respondent court had
altogether opined and decided that such demonstration does not amount to a strike. Hence, with that
findings, petitioners should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the petitioners as
having "bargained in faith." The stand of the respondent court is fallacious, as it follows the principle
in logic as "non-siquitor";
2) That again respondents wanted to impress that the freedom to assemble peaceably to air grievances
against the duly constituted authorities as guaranteed in our Constitution is subject to the limitation of
the agreement in the Collective Bargaining Agreement. The fundamental rights of the petitioners to
free speech and assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These fundamental
rights of the petitioners were not taken into consideration in the deliberation of the case by the
respondent court;
Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process. They do not
posit that the decision of the industrial court is null and void on that constitutional ground. True it is that they fault the
respondent court for having priced the provisions of the collective bargaining agreement herein involved over and
above their constitutional right to peaceably assemble and petition for redress of their grievances against the abuses of
the Pasig police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a manner
that renders the proceedings a nullity. In other words, petitioners themselves consider the alleged flaw in the court's
action as a mere error of judgment rather than that of jurisdiction which the main opinion projects. For this Court to
roundly and indignantly condemn private respondent now for the grievous violation of the fundamental law the main
opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific issue has
not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the
manner this case was brought to Us does not afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding petitioners
guilty of bargaining in bad faith when the charge against them alleged in the complaint was for having conducted a
mass demonstration, which "amounted to a strike", in violation of the Collective Bargaining Agreement, but definitely,
this jurisdictional question has no constitutional color. Indeed, We can even assume for the sake of argument, that the
trial judge did err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot rightly hold that
such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The unbending
doctrine of this Court is that "decisions, erroneous or not, become final after the period fixed by law; litigations would
be endless, no questions would be finally settled; and titles to property would become precarious if the losing party
were allowed to reopen them at any time in the future".3
I only have to add to this that the fact that the error is in the interpretation, construction or application of a
constitutional precept not constituting a denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute than by a
misconstrued or constitutional injunction affecting his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount considerations that inform the principle of immutability of
final judgments. I dare say this must be the reason why, as I have already noted, the main opinion does not cite any
constitutional provision, law or rule or any judicial doctrine or principle supporting its basic holding that infringement
of constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render valid judgments.
In this connection, it must be recalled that the teaching of Philippine Association of Colleges and Universities vs.
Secretary of Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is one of our (the Supreme
Court's) decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners have not raised, they are not insisting upon,
much less have they adequately argued the constitutional issues so extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a court of a
constitutional issue not amounting to a denial of due process renders its judgment or decision null and void, and,
therefore, subject to attack even after said judgment or decision has become final and executory. I have actually tried
to bring myself into agreement with the views of the distinguished and learned writer of the main opinion, if only to
avoid dissenting from his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to
the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the authority of our
constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the Philippines6 (reenacted
practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize upon further reflection that the
very power granted to us to review decisions of lower courts involving questions of law(and these include
constitutional issues not affecting the validity of statutes, treaty, executive agreement, etc.) is not unqualified but has
to be exercised only in the manner provided in the law of the Rules of Court. In other words, before We can exercise
appellate jurisdiction over constitutional issues, no matter how important they may be, there must first be a showing
of compliance with the applicable procedural law or rules, among them, those governing appeals from the Court of
Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power and authority to review, much less alter or modify the same,
absent any denial of due process or fatal defect of jurisdiction. It must be borne in mind that the situation confronting
Us now is not merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving the same; rather,
the real problem here is whether or not We have jurisdiction to entertain it. And, in this regard, as already stated
earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra., which is being relied upon by the main
opinion, already laid down the precedent in Elizalde vs. Court, supra, which for its four-square applicability to the
facts of this case, We have no choice but to follow, that is, that in view of reconsideration but even their argument
supporting the same within the prescribed period, "the judgment (against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments are made
contingent on the correctness thereof from the constitutional standpoint, and that in truth, whether or not they are
correct is something that is always dependent upon combined opinion of the members of the Supreme Court, which in
turn is naturally as changeable as the members themselves are changed, I cannot conceive of anything more pernicious
and destructive to a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be set aside or
reopened in instances other than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1)
of the Civil Code.7 And just to emphasize the policy of the law of respecting judgments once they have become final,
even as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors,8 it is only
when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside,9 and this only when
the remedy is sought within the prescriptive period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:
Litigation must end and terminate sometime and somewhere, and it is essential to an effective and
efficient administration of justice that once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against
any scheme calculated to bring about that result. Constituted as they are to put an end to
controversies, courts should frown upon any attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts
should become final at some definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose and to do so speedily, certain time
limits, more or less arbitrary, have to be set up to spur on the slothful. 'If a vacillating, irresolute
judge were allowed to thus keep causes ever within his power, to determine and redetermine them
term after term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final judgments but
rather on the correct interpretation of the contents of the judgment in question therein. Relevantly to this case at bar, I
said then:
 The point of res adjudicata discussed in the dissents has not escaped my attention. Neither am I
overlooking the point of the Chief Justice regarding the dangerous and inimical implications of a
ruling that would authorize the revision, amendment or alteration of a final and executory judgment. I
want to emphasize that my position in this opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining any such modifications. The public policy
of maintaining faith and respect in judicial decisions, which inform said doctrines, is admittedly of
the highest order. I am not advocating any departure from them. Nor am I trying to put forth for
execution a decision that I believe should have been rather than what it is. All I am doing is to view
not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-20950, as it is and not
as I believe it should have been, and, by opinion, I would like to guide the court a quo as to what, in
my own view, is the true and correct meaning and implications of decision of this Court, not that of
Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein the Court
refused to be constrained by technical rules of procedure in its determination to accord substantial justice to the parties
I still believe in those decisions, some of which were penned by me. I am certain, however, that in none of those
precedents did this Court disturb a judgment already final and executory. It too obvious to require extended
elucidation or even reference any precedent or authority that the principle of immutability of final judgments is not a
mere technicality, and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far as to
maintain that the long existing and constantly applied rule governing the filing of motions for reconsideration in the
Court of Industrial Relations, "as applied in this case does not implement on reinforce or strengthen the constitutional
rights affected, but instead constricts the same to the point of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule, promulgated as it was pursuant to mere legislative delegation, is
unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule
51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration
could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of
the Court of Industrial Relations Rule insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed objectively, it can
readily be seen that there can hardly be any factual or logical basis for such a critical view of the rule in question. Said
rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date on which
he receives notice of the order or decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the allegations of fact, and serving a copy
thereof, personally or by registered mail, on the adverse party. The latter may file an answer, in six
(6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with arguments supporting the same. If
the arguments can not be submitted simultaneously with said motions, upon notice Court, the movant
shall file same within ten (10) days from the date of the filing of his motion for reconsideration. The
adverse party shall also file his answer within ten (10) days from the receipt by him of a copy of the
arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten (10) days from the receipt of the
arguments in support of said motion having been filed, the motion shall be deemed submitted for
resolution of the Court in banc, unless it is considered necessary to bear oral arguments, in which
case the Court shall issue the corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the supporting arguments, as the case may be.
(As amended April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the industrial
court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-forma motion for
reconsideration without any argument or lengthy discussion and with barely a brief statement of the fundamental
ground or grounds therefor, without prejudice to supplementing the same by making the necessary exposition, with
citations laws and authorities, in the written arguments the be filed (10) days later. In truth, such a pro-forma motion
has to effect of just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is to apprise
everyone concerned within the shortest possible time that a reconsideration is to sought, and thereby enable the parties
concerned to make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital industries
in which labor-management problems might require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the case be known to the other so that both
avenues for earlier settlement may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the motion filed
petitioners was no more than the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this Honorable Court most respectfully moves
for the RECONSIDERATION of the Order of this Honorable Court dated September 17, 1969 on the
ground that the same is not in accordance with law, evidence and facts adduced during the hearing of
the above entitled case.
Movant-respondents most respectfully move for leave to file their respective arguments within ten
(10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing of such a motion is to me simply
incomprehensible. What worse in this case is that petitioners have not even taken the trouble of
giving an explanation of their inability to comply with the rule. Not only that, petitioners were also
late five (5) days in filing their written arguments in support of their motion, and, the only excuse
offered for such delay is that both the President of the Union and the office clerk who took charge of
the matter forgot to do what they were instructed to do by counsel, which, according to this Court, as
I shall explain anon "is the most hackneyed and habitual subterfuge employed by litigants who fail to
observe the procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook such
nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of judgments are
in a sense more substantive than procedural in their real nature, for in their operation they have the effect of either
creating or terminating rights pursuant to the terms of the particular judgment concerned. And the fact that the court
that rendered such final judgment is deprived of jurisdiction or authority to alter or modify the same enhances such
substantive character. Moreover, because they have the effect of terminating rights and the enforcement thereof, it
may be said that said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed period. On the
other hand, procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is
not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and be has no
reason to complain because public policy demands that rights must be asserted in time, as otherwise they can be
deemed waived.
I see no justification whatsoever for not applying these self-evident principles to the case of petitioners. Hence, I feel
disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the rules aforequoted of the
Court of Industrial Relations. Besides, I have grave doubts as to whether we can suspend rules of other courts,
particularly that is not under our supervisory jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of substance justice, this Court did exercise in some
instances its re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case in
which the judo has already become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their Petitioners
filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to file "Arguments in
Support of their Motion for Reconsideration within the reglementary period or five (5), if not seven (7), days late "was
due to excusable negligence and honest mistake committed by the President of the respondent Union and on office
clerk of the counsel for respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which
in brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite previous
instructions and of the said office employee having also coincidentally forgotten "to do the work instructed (sic) to
(him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations,
for, under probably more justification circumstances, this Court ruled out a similar explanation previous case this
wise:
We find merit in PAL's petition. The excuse offered respondent Santos as reason for his failure to
perfect in due time appeal from the judgment of the Municipal Court, that counsel's clerk forgot to
hand him the court notice, is the most hackneyed and habitual subterfuge employed by litigants who
fail to observe procedural requirements prescribed by the Rules of Court. The uncritical acceptance
of this kind of common place excuses, in the face of the Supreme Court's repeated rulings that they
are neither credible nor constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January
1952; Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical exercise
of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present case has
already become final and executory, nay, not without the fault of the petitioners, hence, no matter how erroneous from
the constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this case, without pronouncement
as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against alleged abuses of the
Pasig police department, upon two days' prior notice to respondent employer company, as against the latter's insistence that the first shift 1 should not
participate but instead report for work, under pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual petitioners as union officers
and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad faith and
unfair labor practice for having so carried out the mass demonstration, notwithstanding that it concededly was nota
declaration of strike nor directed in any manner against respondent employer, and ordering the dismissal of the union
office manifestly constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm conceded that "the
demonstration is an inalienable right of the union guaranteed' by the Constitution" and the union up to the day of the
demonstration pleaded by cablegram to the company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause as would
warrant the union leaders' dismissal, since as found by respondent court itself the mass demonstration was not a
declaration of a strike, there being no industrial dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their constitutional rights of free expression, peaceable
assembly and petition for redress of grievance against alleged police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been filed two
days late, after expiration of the reglementary five-day period fixed by its rules, due to the negligence of petitioners'
counsel and/or the union president should likewise be set aside as a manifest act of grave abuse of discretion.
Petitioners' petition for relief from the normal adverse consequences of the late filing of their motion for
reconsideration due to such negligence — which was not acted upon by respondent court — should have been
granted, considering the monstrous injustice that would otherwise be caused the petitioners through their summary
dismissal from employment, simply because they sought in good faith to exercise basic human rights guaranteed them
by the Constitution. It should be noted further that no proof of actual loss from the one-day stoppage of work was
shown by respondent company, providing basis to the main opinion's premise that its insistence on dismissal of the
union leaders for having included the first shift workers in the mass demonstration against its wishes was but an act of
arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction to afford
protection to labor be given true substance and meaning. No person may be deprived of such basic rights without due
process — which is but "responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively
put, arbitrariness is ruled out and unfairness avoided ... Due process is thus hostile to any official action marred by
lack of reasonableness. Correctly it has been identified as freedom from arbitrariness."2
Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the judgment for
petitioners as set forth in the main opinion.

Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.
The background of this case may be found principally in the stipulation of facts upon which the decision under review
is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing and
operating under and by virtue of the laws of the Philippines with corporate address at 666 Muelle de
Binondo, Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a legitimate labor
organization, and the respondents herein are either officers of respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant company learned of the projected mass demonstration at
Malacañang in protest against alleged abuses of the Pasig Police Department to be participated by the
first shift (6:00 AM — 2:00 PM workers as well as those working in the regular shifts (7:00 A.M. to
4:00 PM and 8:00 AM to 5:00 PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the
Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty.
Cesareo S. de Leon, Jr. (3) and all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass demonstration at
Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as the spokesman of the
union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot
be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that
the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly prejudice the normal operation of
the Company. For which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without previous leave of
absence approved by the Company, particularly the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company represented
by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodulfo Munsod,
 Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company
reiterated and appealed to the PBMEO representatives that while all workers may join the
Malacañang demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV
"NO LOCKOUT — NO STRIKE". All those who will not follow this warning of the Company shall
be dismissed; De Leon reiterated the Company's warning that the officers shall be primarily liable
being the organizers of the mass demonstration. The union panel countered that it was rather too late
to change their plans inasmuch as the Malacañang demonstration will be held the following morning;
and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which
was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING
REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected demonstration did in fact occur and in the process paralyzed to a
large extent the operations of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a complaint for
Unfair Labor Practice against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first shift, in
violation of the existing collective bargaining agreement and without filing the necessary notice as
provided for by law, failed to report for work, amounting to a declaration of strike;
4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to Sections 13, 14
and 15 of Republic Act No. 875, and of the collective bargaining agreement. (Pars. 3 and 4, Annex
C.)
After due hearing, the court rendered judgment, the dispositive part of which read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is found
guilty of bargaining in bad faith and is hereby ordered to cease and desist from further committing
the same and its representatives namely: respondent Florencio Padrigano, Rufino Roxas, Mariano de
Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act, are hereby
considered to have lost their status as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex
F.)
Although it is alleged in the petition herein that petitioners were notified of this decision on September 23, 1969, there
seems to be no serious question that they were actually served therewith on September 22, 1969. In fact, petitioners
admitted this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969 and filed with the
industrial court on the following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of the court's
decision, that petitioners filed their motion for reconsideration with the industrial court; as it is also not disputed that
they filed their "Arguments in Support of the Respondents' Motion for Reconsideration" only on October 14, 1969.
(See Annex I.) In other words, petitioners' motion for reconsideration was filed two (2) days after the lapse of the five
(5) day period provided for the filing thereof in the rules of the Court of Industrial Relations, whereas the
"Arguments" were filed five (5) days after the expiration of the period therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely, that in view
of the failure of petitioners to file not only their motion for reconsideration but also their arguments in support thereof
within the periods respectively fixed in the rules therefor, the Court of Industrial Relations acted correctly and within
the law in rendering and issuing its impugned order of October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of this Court
in Elizalde & Co. Inc. vs. Court of Industrial Relations1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge Arsenio I.
Martinez, the dispositive part of which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were advanced in
support thereof.
August 21, 1963. Petitioner moved for additional time to file its arguments in support of its motion to
reconsider.
August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking
reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration. Ground
therefor was that the arguments were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the present petition
with this Court.
Upon respondent Perlado's return and petitioner's brief (respondents did not file their brief), the case
is now before us for resolution.
1. That the judgment appealed from is a final judgment — not merely an interlocutory order — there
is no doubt. The fact that there is need for computation of respondent Perlado's overtime pay would
not render the decision incomplete. This in effect is the holding of the Court in Pan American World
Airways System (Philippines) vs. Pan American Employees Association, which runs thus: 'It is next
contended that in ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and thereby rendered
an incomplete decision. We do not believe so. Computation of the overtime pay involves a
mechanical function, at most. And the report would still have to be submitted to the Industrial Court
for its approval, by the very terms of the order itself. That there was no specification of the amount of
overtime pay in the decision did not make it incomplete, since this matter should necessarily be made
clear enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs. CIR, et
al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer the question in
the affirmative.
Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of the trial judge
must do so within five (5) days from the date on which he received notice of the decision, subject of
the motion. Next follows Section 16 which says that the motion must be submitted with arguments
supporting the same. But if said arguments could not be submitted simultaneously with the motion,
the same section commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes a movant that
"(f)ailure to observe the above-specified periods shall be sufficient cause for dismissal of the motion
for reconsideration or striking out of the answer and/or the supporting arguments, as the case may
be".
Not that the foregoing rules stand alone. Jurisprudence has since stabilized the enforceability thereof.
Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro forma motion for reconsideration
was filed out of time its denial is in order pursuant to CIR rules, regardless of whether the arguments
in support of said motion were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where a motion to
reconsider is filed out of time, the order or decision subject of reconsideration comes final. And so
also, where the arguments in support of the motion for reconsideration are filed beyond the ten-day
reglementary period, the pre forma motion for reconsideration although seasonably filed must
nevertheless be denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon the ground that the arguments in support
thereof were filed out of time, the order or decision subject of the motion becomes "final and
unappealable".
 We find no difficulty in applying the foregoing rules and pronouncements of this Court in the case
before us. On August 6, petitioner received a copy of the judgment of Judge Arsenio I. Martinez
aforesaid. Petitioner's motion to reconsider — without arguments in support thereof — of August 12
was filed on time. For, August 11, the end of the five-day reglementary period to file a motion for
reconsideration, was a Sunday. But, actually, the written arguments in support of the said motion
were submitted to the court on August 27. The period from August 12 to August 27, is a space of
fifteen (15) days. Surely enough, said arguments were filed out of time — five (5) days late. And the
judgment had become final.
3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time within which
to present its arguments in support of its motion. Counsel in his petition before this Court pleads that
the foregoing motion was grounded on the 'extremely busy and difficult schedule of counsel which
would not enable him to do so within the stated ten-day reglementary period. The arguments were
only filed on August 27 — five (5) days late, as aforesaid.
The foregoing circumstances will not avail petitioner any. It is to be noted that the motion for
expansion of time was filed only on August 21, that is, one day before the due date which is August
22. It was petitioner's duty to see to it that the court act on this motion forthwith or at least inquire as
to the fate thereof not later than the 22nd of August. It did not. It merely filed its arguments on the
27th.
To be underscored at this point is that "obviously to speed up the disposition of cases", CIR "has a
standing rule against the extension of the ten-day period for filing supporting arguments". That no-
extension policy should have placed petitioner on guard. It should not have simply folded its arms, sit
by supinely and relied on the court's generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that by that time the reglementary period had
expired.
Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the motion for
reconsideration on the ground that the supporting arguments were filed out of time. That ruling in
effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable. We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified, much less
revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of petitioners' pose that
the respondent court erred in holding them guilty of bargaining in bad faith but also to ultimately uphold petitioners'
claim for reinstatement on constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an exposition of the constitutional guarantees
of freedoms of speech and peaceful assembly for redress of grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I am constrained, over and above my sincere
admiration for the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as
presented by petitioners themselves and in the light of its attendant circumstances, this case does not call for the
resolution of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly when it
directly affects individual freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial practices related thereto, however, that even the most valuable of our
constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with substantive and procedural due
process are observed. No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very
often fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside final
judgments only in cases wherein there is a possible denial of due process. I have not come across any instance, and
none is mentioned or cited in the well-documented main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the effect of sanctioning the violation of a constitutional
right, unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from any judicial precedent or reason of
principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and accepted as an
absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and as a consequence its
judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned
almost in passing, does uphold the proposition that "relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus proceedings even after the finality of the judgment".
And, of course, Chavez is correct; as is also Abriol vs. Homeres2 which, in principle, served as its precedent, for the
very simple reason that in both of those cases, the accused were denied due process. In Chavez, the accused was
compelled to testify against himself as a witness for the prosecution; in Abriol, the accused was denied his request to
be allowed to present evidence to establish his defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases are a far cry from the one now before Us.
Here, petitioners do not claim they were denied due process. Nor do they pretend that in denying their motion for
reconsideration, "the respondent Court of Industrial Relations and private firm trenched upon any of their
constitutional immunities ...," contrary to the statement to such effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of petitioners can any direct or indirect assertion be found assailing the
impugned decision of the respondent court as being null and void because it sanctioned a denial of a valued
constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be resolved is whether or not the respondent
Courten banc under the facts and circumstances, should consider the Motion for Reconsideration
filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this Honorable Court
to treat this petition under Rule 43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc of the strict and narrow technical
rules of procedure without taking into account justice, equity and substantial merits of the case.
On the other hand, the complete argument submitted by petitioners on this point in their brief runs
thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably assemble
and petition the government for redress of grievances constitute bargaining in bad faith? and,
Do the facts found by the court below justify the declaration and conclusion that the union was guilty
of bargaining in bad faith meriting the dismissal of the persons allegedly responsible therefore?
2. Was there grave abuse of discretion when the respondent court refused to act one way or another
on the petition for relief from the resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union guilty of bargaining in bad faith and
consequently dismissing the persons allegedly responsible therefor, because such conclusion is
country to the evidence on record; that the dismissal of leaders was discriminatory.
As a result of exercising the constitutional rights of freedom to assemble and petition the duly
constituted authorities for redress of their grievances, the petitioners were charged and then
condemned of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad faith were not borne out by the records.
It was not even alleged nor proven by evidence. What has been alleged and which the respondent
company tried to prove was that the demonstration amounted to a strike and hence, a violation of the
provisions of the "no-lockout — no strike" clause of the collective bargaining agreement. However,
this allegation and proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:
 'The company alleges that the walkout because of the demonstration is tantamount to
a declaration of a strike. We do not think so, as the same is not rooted in
any industrial dispute although there is a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis supplied, p. 4, 5th paragraph, Decision.)
The respondent court's findings that the petitioner union bargained in bad faith is not
tenable because:
First, it has not been alleged nor proven by the respondent company; .
Second, before the demonstration, the petitioner union and the respondent company convened twice
in a meeting to thresh out the matter of demonstration. Petitioners requested that the employees and
workers be excused but the respondent company instead of granting the request or even settling the
matter so that the hours of work will not be disrupted, immediately threatened the employees of mass
dismissal;
Third, the refusal of the petitioner union to grant the request of the company that the first shift shall
be excluded in the demonstration is not tantamount to bargaining in bad faith because the company
knew that the officers of the union belonged to the first shift, and that the union cannot go and lead
the demonstration without their officers. It must be stated that the company intends to prohibit its
officers to lead and join the demonstration because most of them belonged to the first shift; and
Fourth, the findings of the respondent court that the demonstration if allowed will practically give the
union the right to change the working conditions agreed in the CBA is a conclusion of facts,
opinionated and not borne by any evidence on record. The demonstration did not practically change
the terms or conditions of employment because it was only for one (1) day and the company knew
about it before it went through. We can even say that it was the company who bargained in bad faith,
when upon representation of the Bureau of Labor not to dismiss the employees demonstrating, the
company tacitly approved the same and yet while the demonstration was in progress, the company
filed a ULP Charge and consequently dismissed those who participated.
Records of the case show that more or less 400 members of the union participated in the
demonstration and yet, the respondent court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent company. The respondent court should have
taken into account that the company's action in allowing the return of more or less three hundred
ninety two (392) employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees
Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by
the court, while there is a collective bargaining agreement, the union cannot go on demonstration or
go on strike because it will change the terms and conditions of employment agreed in the CBA. It
follows that the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a bad precedent
because it will appear that the rights of the union is solely dependent upon the CBA.
One of the cardinal primary rights which must be respected in proceedings before the Court of
Industrial Relations is that "the decision must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the parties affected." (Interstate Commerce
Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their
rights to know and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27,
1940.)
The petitioners respectfully and humbly submit that there is no scintilla of evidence to support the
findings of the respondent court that the petitioner union bargained in bad faith. Corollary therefore,
the dismissal of the individual petitioners is without basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been guilty of bargaining in bad faith and
consequently lost their status as employees of the respondent company did not meet the meaning and
comprehension of "substantial merits of the case." Bargaining in bad faith has not been alleged in the
 complaint (Annex "C", Petition) nor proven during the hearing of the can. The important and
substantial merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on "illegal strike" and
therefore in violation of the "no strike — no lock out" clause of the Collective Bargaining
Agreement. Petitioners respectfully reiterate and humbly submit, that the respondent court had
altogether opined and decided that such demonstration does not amount to a strike. Hence, with that
findings, petitioners should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the petitioners as
having "bargained in faith." The stand of the respondent court is fallacious, as it follows the principle
in logic as "non-siquitor";
2) That again respondents wanted to impress that the freedom to assemble peaceably to air grievances
against the duly constituted authorities as guaranteed in our Constitution is subject to the limitation of
the agreement in the Collective Bargaining Agreement. The fundamental rights of the petitioners to
free speech and assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These fundamental
rights of the petitioners were not taken into consideration in the deliberation of the case by the
respondent court;
Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process. They do not
posit that the decision of the industrial court is null and void on that constitutional ground. True it is that they fault the
respondent court for having priced the provisions of the collective bargaining agreement herein involved over and
above their constitutional right to peaceably assemble and petition for redress of their grievances against the abuses of
the Pasig police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a manner
that renders the proceedings a nullity. In other words, petitioners themselves consider the alleged flaw in the court's
action as a mere error of judgment rather than that of jurisdiction which the main opinion projects. For this Court to
roundly and indignantly condemn private respondent now for the grievous violation of the fundamental law the main
opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific issue has
not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the
manner this case was brought to Us does not afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding petitioners
guilty of bargaining in bad faith when the charge against them alleged in the complaint was for having conducted a
mass demonstration, which "amounted to a strike", in violation of the Collective Bargaining Agreement, but definitely,
this jurisdictional question has no constitutional color. Indeed, We can even assume for the sake of argument, that the
trial judge did err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot rightly hold that
such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The unbending
doctrine of this Court is that "decisions, erroneous or not, become final after the period fixed by law; litigations would
be endless, no questions would be finally settled; and titles to property would become precarious if the losing party
were allowed to reopen them at any time in the future".3
I only have to add to this that the fact that the error is in the interpretation, construction or application of a
constitutional precept not constituting a denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute than by a
misconstrued or constitutional injunction affecting his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount considerations that inform the principle of immutability of
final judgments. I dare say this must be the reason why, as I have already noted, the main opinion does not cite any
constitutional provision, law or rule or any judicial doctrine or principle supporting its basic holding that infringement
of constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render valid judgments.
In this connection, it must be recalled that the teaching of Philippine Association of Colleges and Universities vs.
Secretary of Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is one of our (the Supreme
Court's) decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners have not raised, they are not insisting upon,
much less have they adequately argued the constitutional issues so extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a court of a
constitutional issue not amounting to a denial of due process renders its judgment or decision null and void, and,
therefore, subject to attack even after said judgment or decision has become final and executory. I have actually tried
to bring myself into agreement with the views of the distinguished and learned writer of the main opinion, if only to
avoid dissenting from his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to
the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the authority of our
constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the Philippines6 (reenacted
practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize upon further reflection that the
very power granted to us to review decisions of lower courts involving questions of law(and these include
constitutional issues not affecting the validity of statutes, treaty, executive agreement, etc.) is not unqualified but has
to be exercised only in the manner provided in the law of the Rules of Court. In other words, before We can exercise
appellate jurisdiction over constitutional issues, no matter how important they may be, there must first be a showing
of compliance with the applicable procedural law or rules, among them, those governing appeals from the Court of
Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power and authority to review, much less alter or modify the same,
absent any denial of due process or fatal defect of jurisdiction. It must be borne in mind that the situation confronting
Us now is not merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving the same; rather,
the real problem here is whether or not We have jurisdiction to entertain it. And, in this regard, as already stated
earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra., which is being relied upon by the main
opinion, already laid down the precedent in Elizalde vs. Court, supra, which for its four-square applicability to the
facts of this case, We have no choice but to follow, that is, that in view of reconsideration but even their argument
supporting the same within the prescribed period, "the judgment (against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments are made
contingent on the correctness thereof from the constitutional standpoint, and that in truth, whether or not they are
correct is something that is always dependent upon combined opinion of the members of the Supreme Court, which in
turn is naturally as changeable as the members themselves are changed, I cannot conceive of anything more pernicious
and destructive to a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be set aside or
reopened in instances other than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1)
of the Civil Code.7 And just to emphasize the policy of the law of respecting judgments once they have become final,
even as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors,8 it is only
when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside,9 and this only when
the remedy is sought within the prescriptive period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:
Litigation must end and terminate sometime and somewhere, and it is essential to an effective and
efficient administration of justice that once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against
any scheme calculated to bring about that result. Constituted as they are to put an end to
controversies, courts should frown upon any attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts
should become final at some definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose and to do so speedily, certain time
limits, more or less arbitrary, have to be set up to spur on the slothful. 'If a vacillating, irresolute
judge were allowed to thus keep causes ever within his power, to determine and redetermine them
term after term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final judgments but
rather on the correct interpretation of the contents of the judgment in question therein. Relevantly to this case at bar, I
said then:
The point of res adjudicata discussed in the dissents has not escaped my attention. Neither am I
overlooking the point of the Chief Justice regarding the dangerous and inimical implications of a
ruling that would authorize the revision, amendment or alteration of a final and executory judgment. I
want to emphasize that my position in this opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining any such modifications. The public policy
of maintaining faith and respect in judicial decisions, which inform said doctrines, is admittedly of
the highest order. I am not advocating any departure from them. Nor am I trying to put forth for
execution a decision that I believe should have been rather than what it is. All I am doing is to view
not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-20950, as it is and not
as I believe it should have been, and, by opinion, I would like to guide the court a quo as to what, in
my own view, is the true and correct meaning and implications of decision of this Court, not that of
Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein the Court
refused to be constrained by technical rules of procedure in its determination to accord substantial justice to the parties
I still believe in those decisions, some of which were penned by me. I am certain, however, that in none of those
precedents did this Court disturb a judgment already final and executory. It too obvious to require extended
elucidation or even reference any precedent or authority that the principle of immutability of final judgments is not a
mere technicality, and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far as to
maintain that the long existing and constantly applied rule governing the filing of motions for reconsideration in the
Court of Industrial Relations, "as applied in this case does not implement on reinforce or strengthen the constitutional
rights affected, but instead constricts the same to the point of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule, promulgated as it was pursuant to mere legislative delegation, is
unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule
51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration
could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of
the Court of Industrial Relations Rule insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed objectively, it can
readily be seen that there can hardly be any factual or logical basis for such a critical view of the rule in question. Said
rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date on which
he receives notice of the order or decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the allegations of fact, and serving a copy
thereof, personally or by registered mail, on the adverse party. The latter may file an answer, in six
(6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with arguments supporting the same. If
the arguments can not be submitted simultaneously with said motions, upon notice Court, the movant
shall file same within ten (10) days from the date of the filing of his motion for reconsideration. The
adverse party shall also file his answer within ten (10) days from the receipt by him of a copy of the
arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten (10) days from the receipt of the
arguments in support of said motion having been filed, the motion shall be deemed submitted for
 resolution of the Court in banc, unless it is considered necessary to bear oral arguments, in which
case the Court shall issue the corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the supporting arguments, as the case may be.
(As amended April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the industrial
court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-forma motion for
reconsideration without any argument or lengthy discussion and with barely a brief statement of the fundamental
ground or grounds therefor, without prejudice to supplementing the same by making the necessary exposition, with
citations laws and authorities, in the written arguments the be filed (10) days later. In truth, such a pro-forma motion
has to effect of just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is to apprise
everyone concerned within the shortest possible time that a reconsideration is to sought, and thereby enable the parties
concerned to make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital industries
in which labor-management problems might require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the case be known to the other so that both
avenues for earlier settlement may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the motion filed
petitioners was no more than the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this Honorable Court most respectfully moves
for the RECONSIDERATION of the Order of this Honorable Court dated September 17, 1969 on the
ground that the same is not in accordance with law, evidence and facts adduced during the hearing of
the above entitled case.
Movant-respondents most respectfully move for leave to file their respective arguments within ten
(10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing of such a motion is to me simply
incomprehensible. What worse in this case is that petitioners have not even taken the trouble of
giving an explanation of their inability to comply with the rule. Not only that, petitioners were also
late five (5) days in filing their written arguments in support of their motion, and, the only excuse
offered for such delay is that both the President of the Union and the office clerk who took charge of
the matter forgot to do what they were instructed to do by counsel, which, according to this Court, as
I shall explain anon "is the most hackneyed and habitual subterfuge employed by litigants who fail to
observe the procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook such
nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of judgments are
in a sense more substantive than procedural in their real nature, for in their operation they have the effect of either
creating or terminating rights pursuant to the terms of the particular judgment concerned. And the fact that the court
that rendered such final judgment is deprived of jurisdiction or authority to alter or modify the same enhances such
substantive character. Moreover, because they have the effect of terminating rights and the enforcement thereof, it
may be said that said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed period. On the
other hand, procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is
not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and be has no
reason to complain because public policy demands that rights must be asserted in time, as otherwise they can be
deemed waived.
I see no justification whatsoever for not applying these self-evident principles to the case of petitioners. Hence, I feel
disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the rules aforequoted of the
Court of Industrial Relations. Besides, I have grave doubts as to whether we can suspend rules of other courts,
particularly that is not under our supervisory jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of substance justice, this Court did exercise in some
instances its re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case in
which the judo has already become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their Petitioners
filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to file "Arguments in
Support of their Motion for Reconsideration within the reglementary period or five (5), if not seven (7), days late "was
due to excusable negligence and honest mistake committed by the President of the respondent Union and on office
clerk of the counsel for respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which
in brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite previous
instructions and of the said office employee having also coincidentally forgotten "to do the work instructed (sic) to
(him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations,
for, under probably more justification circumstances, this Court ruled out a similar explanation previous case this
wise:
We find merit in PAL's petition. The excuse offered respondent Santos as reason for his failure to
perfect in due time appeal from the judgment of the Municipal Court, that counsel's clerk forgot to
hand him the court notice, is the most hackneyed and habitual subterfuge employed by litigants who
fail to observe procedural requirements prescribed by the Rules of Court. The uncritical acceptance
of this kind of common place excuses, in the face of the Supreme Court's repeated rulings that they
are neither credible nor constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January
1952; Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical exercise
of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present case has
already become final and executory, nay, not without the fault of the petitioners, hence, no matter how erroneous from
the constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this case, without pronouncement
as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against alleged abuses of the
Pasig police department, upon two days' prior notice to respondent employer company, as against the latter's insistence that the first shift 1 should not
participate but instead report for work, under pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual petitioners as union officers
and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad faith and
unfair labor practice for having so carried out the mass demonstration, notwithstanding that it concededly was nota
declaration of strike nor directed in any manner against respondent employer, and ordering the dismissal of the union
office manifestly constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm conceded that "the
demonstration is an inalienable right of the union guaranteed' by the Constitution" and the union up to the day of the
demonstration pleaded by cablegram to the company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause as would
warrant the union leaders' dismissal, since as found by respondent court itself the mass demonstration was not a
declaration of a strike, there being no industrial dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their constitutional rights of free expression, peaceable
assembly and petition for redress of grievance against alleged police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been filed two
days late, after expiration of the reglementary five-day period fixed by its rules, due to the negligence of petitioners'
counsel and/or the union president should likewise be set aside as a manifest act of grave abuse of discretion.
Petitioners' petition for relief from the normal adverse consequences of the late filing of their motion for
reconsideration due to such negligence — which was not acted upon by respondent court — should have been
granted, considering the monstrous injustice that would otherwise be caused the petitioners through their summary
dismissal from employment, simply because they sought in good faith to exercise basic human rights guaranteed them
by the Constitution. It should be noted further that no proof of actual loss from the one-day stoppage of work was
shown by respondent company, providing basis to the main opinion's premise that its insistence on dismissal of the
union leaders for having included the first shift workers in the mass demonstration against its wishes was but an act of
arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction to afford
protection to labor be given true substance and meaning. No person may be deprived of such basic rights without due
process — which is but "responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively
put, arbitrariness is ruled out and unfairness avoided ... Due process is thus hostile to any official action marred by
lack of reasonableness. Correctly it has been identified as freedom from arbitrariness."2
Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the judgment for
petitioners as set forth in the main opinion.