FREEDOM OF SPEECH AND EXPRESSION
9006
CASE 1
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION, doing business as MANILA
STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock,
non-profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of general
circulation, which features news- worthy items of information including
election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the Commission
on Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act),
which provides:
Surveys affecting national candidates shall not be published fifteen (15)
days before an election and surveys affecting local candidates shall not
be published seven (7) days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions
of the voters as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to the election,
including voters preference for candidates or publicly discussed issues
during the campaign period (hereafter referred to as "Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of
the COMELEC enjoins –
Surveys affecting national candidates shall not be published fifteen (15)
days before an election and surveys affecting local candidates shall not
be published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local
levels and release to the media the results of such survey as well as
publish them directly. Petitioner Kamahalan Publishing Corporation, on
the other hand, states that it intends to publish election survey results up
to the last day of the elections on May 14,2001.
Petitioners argue that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such restraint. They claim
that SWS and other pollsters conducted and published the results of
surveys prior to the 1992, 1995, and 1998 elections up to as close as
two days before the election day without causing confusion among the
voters and that there is neither empirical nor historical evidence to
support the conclusion that there is an immediate and inevitable danger
to tile voting process posed by election surveys. They point out that no
similar restriction is imposed on politicians from explaining their opinion
or on newspapers or broadcast media from writing and publishing
articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters
to be denied access to the results of election surveys, which are
relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in §5.4 of
R.A. No. 9006 as necessary to prevent the manipulation and corruption
of the electoral process by unscrupulous and erroneous surveys just
before the election. It contends that (1) the prohibition on the publication
of election survey results during the period proscribed by law bears a
rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from manipulated
surveys, bandwagon effect, and absence of reply; (2) it is narrowly
tailored to meet the "evils" sought to be prevented; and (3) the
impairment of freedom of expression is minimal, the restriction being
limited both in duration, i.e., the last 15 days before the national election
and the last 7 days before a local election, and in scope as it does not
prohibit election survey results but only require timeliness. Respondent
claims that in National Press Club v. COMELEC,1 a total ban on political
advertisements, with candidates being merely allocated broadcast time
during the so-called COMELEC space or COMELEC hour, was upheld
by this Court. In contrast, according to respondent, it states that the
prohibition in §5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No.
constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech, expression,
and the press prohibiting the publication of election survey results
affecting candidates within the prescribed periods of fifteen (15) days
immediately preceding a national election seven (7) days before a local
election. Because of tile preferred status of tile constitutional rights of
speech, expression, and he press, such a measure is vitiated by a
weighty presumption of invalidity.2 Indeed, any system of prior restraints
of expression comes to this Court bearing a heavy Presumption against
its constitutional validity. ...The Government thus carries a heavy burden
of showing justification for in enforcement of such restraint. "'3 There,
thus a reversal of the normal presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution,
which gives the COMELEC supervisory power to regulate the enjoyment
or utilization of franchise for the operation of media of communication,
no presumption of invalidity attaches to a measure like §5.4. For as we
have pointed out in sustaining tile ban on media political advertisements,
the grant of power to the COMELEC under Art. IX-C, §4 is limited to
ensuring "equal opportunity, time, space, and the right to reply" as well
as uniform and reasonable rates of charges for the use of such media
facilities "public information campaigns and forums among
candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen
to be that no presumption of invalidity arises in respect of exercises of
supervisory or regulatory authority on the part of the Comelec for the
Purpose of securing equal opportunity among candidates for political
office, although such supervision or regulation may result in some
limitation of the rights of free speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test
of clear and present danger for determining the validity of §5.4. Indeed,
as has been pointed out in Osmeña v. COMELEC,6 this test was
originally formulated for the criminal law and only later appropriated for
free speech cases. Hence, while it may be useful for determining the
validity of laws dealing with inciting to sedition or incendiary speech, it
may not be adequate for such regulations as the one in question. For
such a test is concerned with questions of the gravity and imminence of
the danger as basis for curtailing free speech, which is not the case of
§5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of
balancing by "weighing and balancing the circumstances to determine
whether public interest [in free, orderly, honest, peaceful and credible
elections] is served by the regulation of the free enjoyment of the rights"
(page 7). After canvassing the reasons for the prohibition, i.e., to prevent
last-minute pressure on voters, the creation of bandwagon effect to favor
candidates, misinformation, the junking" of weak and "losing" candidates
by their parties, and the form of election cheating called "dagdag-bawas"
and invoking the State's power to supervise media of information during
the election period (pages 11-16), the dissenting opinion simply
concludes:
Viewed in the light of the legitimate and significant objectives of Section
5.4, It may be seen that its limitingimpact on the rights of free speech
and of the press is not unduly repressive or unreasonable. In Indeed, it
is a mere restriction, not an absolute prohibition, on the publication of
election surveys. It is limited in duration; it applies only during the period
when the voters are presumably contemplating whom they should elect
and when they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of expression.
Instead, reliance is placed on Art. IX-C, §4. As already stated, the
purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space
and the right of reply, including reasonable, equal rates therefor for
public information campaigns and forums among candidates. " Hence
the validity of the ban on media advertising. It is noteworthy that R.A.
No. 9006, § 14 has lifted the ban and now allows candidates to advertise
their candidacies in print and broadcast media. Indeed, to sustain the
ban on the publication of survey results would sanction the censorship
of all speaking by candidates in an election on the ground that the usual
bombasts and hyperbolic claims made during the campaigns can
confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This
form of ad hoc balancing predictably results in sustaining the challenged
1
legislation and leaves freedom of speech, expression, and the press with
little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and
a legitimate governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales v. COMELEC,7 from
which the dissent in this case takes its cue, was a strong one resulting
in his conclusion that , §50-B of R.A. No. 4880, which limited the period
of election campaign and partisan political activity, was an
unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there
are other countries - 78, according to the Solicitor General, while the
dissent cites 28 - which similarly impose restrictions on the publication
of election surveys. At best this survey is inconclusive. It is note worthy
that in the United States no restriction on the publication of election
survey results exists. It cannot be argued that this is because the United
States is a mature democracy. Neither are there laws imposing an
embargo on survey results, even for a limited period, in other countries.
As pointed out by petitioners, the United Kingdom, Austria, Belgium,
Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia,
the Netherlands, Norway, Sweden, and Ukraine, some of which are no
older nor more mature than the Philippines in political development, do
not restrict the publication of election survey results.
What test should then be employed to determine the constitutional
validity of §5.4? The United States Supreme Court, through Chief
Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that
interest.8
This is so far the most influential test for distinguishing content-based
from content neutral regulations and is said to have "become canonical
in the review of such laws."9 is noteworthy that the O 'Brien test has been
applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental
interest is "not unrelated to the Expression of free expression."
Moreover, even if the purpose is unrelated to the suppression of free
speech, the law should nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary to achieve the
governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as
applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the
causal connection of expression to the asserted governmental interest
makes such interest "not related to the suppression of free expression."
By prohibiting the publication of election survey results because of the
possibility that such publication might undermine the integrity of the
election, §5.4 actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter
by newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion takers. In effect, §5.4 shows a bias for a
particular subject matter, if not viewpoint, by referring personal opinion
to statistical results. The constitutional guarantee of freedom of
expression means that "the government has no power to restrict
expression because of its message, its ideas, its subject matter, or its
content."11 The inhibition of speech should be upheld only if the
expression falls within one of the few unprotected categories dealt with
in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or 'fighting' words - those
which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality
Nor is there justification for the prior restraint which §5.4Iays on
protected speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited.
But the limitation has been recognized only in exceptional cases…. No
one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates
transports or the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected
against incitements to acts of violence and overthrow by force of orderly
government…
Thus, contrary to the claim of the Solicitor General, the prohibition
imposed by §5.4 cannot be justified on the ground that it is only for a
limited period and is only incidental. The prohibition may be for a limited
time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech
and is not made less so because it is only for a period of fifteen (15) days
immediately before a national election and seven (7) days immediately
before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which
this Court found to be valid in National Press Club v. COMELEC,14 and
Osmeña v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b)
is not only authorized by a specific constitutional provision, 16 but it also
provided an alternative so that, as this Court pointed out
in Osmeña, there was actually no ban but only a substitution of media
advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of
free expression is only incidental, §5.4 nonetheless fails to meet criterion
[4] of the O 'Brien test, namely, that the restriction be not greater than is
necessary to further the governmental interest. As already stated, §5.4
aims at the prevention of last-minute pressure on voters, the creation of
bandwagon effect, "junking" of weak or "losing" candidates, and resort
to the form of election cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such aim can be
more narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech creates the
danger of such evils. Thus, under the Administrative Code of 1987,17the
COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop
any unlawful, libelous, misleading or false election propaganda, after
due notice and hearing.
This is surely a less restrictive means than the prohibition contained in
§5.4. Pursuant to this power of the COMELEC, it can confiscate bogus
survey results calculated to mislead voters. Candidates can have their
own surveys conducted. No right of reply can be invoked by others. No
principle of equality is involved. It is a free market to which each
candidate brings his ideas. As for the purpose of the law to prevent
bandwagon effects, it is doubtful whether the Government can deal with
this natural-enough tendency of some voters. Some voters want to be
identified with the "winners." Some are susceptible to the herd mentality.
Can these be legitimately prohibited by suppressing the publication of
survey results, which are a form of expression? It has been held that
"[mere] legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal
activities, but be insufficient to justify such as diminishes the exercise of
rights so vital to the maintenance of democratic institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it imposes
a prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression
is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than suppression of
freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, §7 of
the Constitution, its decisions, orders, or resolution may be reviewed by
this Court only certiorari. The flaws in this argument is that it assumes
that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for
COMELEC maintain that Resolution 3636 was "rendered" by the
Commission. However, the Resolution does not purport to adjudicate the
right of any party. It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary,
Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's
claim that this petition for prohibition is inappropriate. Prohibition has
been fund appropriate for testing the constitutionality of various election
laws, rules, and regulations.19
2
WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A.
No. 9006 §24(h) of COMELEC Resolution 3636, March 1, 2001, are
declared unconstitutional. 1âwphi1.nêt
SO ORDERED.1âwphi1.nêt

3
CASE 2
G.R. No. 159751 December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March
21, 2003 and the Resolution dated September 2, 2003, of the Court of
Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the
Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No.
99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for
violation of Article 2012 of the Revised Penal Code, as amended by
Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of prision
correccional, and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials,
officers of the Philippine National Police Criminal Investigation and
Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of
Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge
Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued
Search Warrant No. 99-1216 for violation of Article 201 of the Revised
Penal Code against petitioner Gaudencio E. Fernando and a certain
Warren Tingchuy. The warrant ordered the search of Gaudencio E.
Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo,
Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures;
and
d. Copies of VHS tapes containing pornographic shows. 3
On the same day, police officers of the PNP-CIDG NCR served the
warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes and
ten (10) different magazines, which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were
charged in an Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said
accused, did then and there willfully, unlawfully, feloniously, publicly and
jointly exhibit indecent or immoral acts, scenes or shows at Music Fair,
located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by
then and there selling and exhibiting obscene copies of x-rated VHS
Tapes, lewd films depicting men and women having sexual intercourse[,]
lewd photographs of nude men and women in explicating (sic) positions
which acts serve no other purpose but to satisfy the market for lust or
pornography to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the
offense charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and
presented the following witnesses: Police Inspector Rodolfo L. Tababan,
SPO4 Rolando Buenaventura and Barangay Chairperson Socorro
Lipana, who were all present during the raid. After the prosecution
presented its evidence, the counsel for the accused moved for leave of
court to file a demurrer to evidence, which the court granted. On October
5, 2000, the RTC however denied the demurrer to evidence and
scheduled the reception of evidence for the accused. A motion for
reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and
instead submitted the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but
convicted herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused
GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond
reasonable doubt of the crime charged and are hereby sentenced to
suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY
as minimum to SIX (6) YEARS of prision correccional as maximum, to
pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN
TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the
crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this
case are hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate
courtlatter affirmed in toto the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court,
the decision appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he
was not present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not
doing anything illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in
affirming the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time
of the search, they were selling pornographic materials. Fernando
contends that since he was not charged as the owner of an
establishment selling obscene materials, the prosecution must prove
that he was present during the raid and that he was selling the said
materials. Moreover, he contends that the appellate court’s reason for
convicting him, on a presumption of continuing ownership shown by an
expired mayor’s permit, has no sufficient basis since the prosecution
failed to prove his ownership of the establishment. Estorninos, on the
other hand, insists that he was not an attendant in Music Fair, nor did he
introduce himself so.9
The Solicitor General counters that owners of establishments selling
obscene publications are expressly held liable under Article 201, and
petitioner Fernando’s ownership was sufficiently proven. As the owner,
according to the Solicitor General, Fernando was naturally a seller of the
prohibited materials and liable under the Information. The Solicitor
General also maintains that Estorninos was identified by Barangay
Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10
At the outset, we note that the trial court gave petitionersthem the
opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present
evidence and opted to submitted the case for decision.a1 12 The trial
court therefore resolved the case on the basis of prosecution’s evidence
against the petitioners.
As obscenity is an unprotected speech which the State has the right to
regulate, the State in pursuing its mandate to protect, as parens
patriae, the public from obscene, immoral and indecent materials must
justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be
held liable, the prosecution must prove that (a) the materials, publication,
picture or literature are obscene; and (b) the offender sold, exhibited,
published or gave away such materials.13 Necessarily, that the
confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define
obscenity in People v. Kottinger.14 There the Court defined obscenity as
something which is offensive to chastity, decency or delicacy. The test
to determine the existence of obscenity is, 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.15 Another test
according to Kottinger is "that which shocks the ordinary and common
sense of men as an indecency."16 But, Kottinger hastened to say that
whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be
decided by the judgment of the aggregate sense of the community
reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova,
et al.,19 involving a prosecution under Article 201 of the Revised Penal
Code, laid the tests which did little to clearly draw the fine lines of
obscenity.
In People v. Go Pin, the Court said:
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
4
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 [of] 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. 20
People v. Padan y Alova, et al. in a way reaffirmed the standards set
in Go Pin but with its own test of "redeeming feature." The Court therein
said that:
[A]n 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.21
Notably, the Court in the later case of Gonzales v. Kalaw
Katigbak,22 involving motion pictures, still applied the "contemporary
community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures
obscenity in terms of the "dominant theme" of the material taken as a
"whole" rather than in isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic
publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, determine what art is; or that if they find inspiration in the
exhibitions, whether such exhibitions cease to be obscene. 23 Go
Pin and Padan y Alova gave too much latitude for judicial arbitrament,
which has permitted ad lib of ideas and "two-cents worths" among
judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and
pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It
is evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization.25 It
seems futile at this point to formulate a perfect definition of obscenity
that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that
of Miller v. California which established basic guidelines, to wit: (a)
whether to the average person, applying contemporary standards would
find the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading
of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive."27 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.28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or
simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the
genitals.29 What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and
on the judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and
the Court of Appeals affirmed such findings. The trial court in ruling that
the confiscated materials are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team
obscene or offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing
in the nine (9) confiscated magazines namely Dalaga, Penthouse,
Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are
offensive to morals and are made and shown not for the sake of art but
rather for commercial purposes, that is gain and profit as the exclusive
consideration in their exhibition. The pictures in the magazine exhibited
indecent and immoral scenes and acts…The exhibition of the sexual act
in their magazines is but a clear and unmitigated obscenity, indecency
and an offense to public morals, inspiring…lust and lewdness, exerting
a corrupting influence especially on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual
intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
Manibog as the actress shows the naked body of the actress. The tape
exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive
may be innocent, but the performance was revolting and shocking to
good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance
fees were usually not artists or persons interested in art to satisfy and
inspire their artistic tastes but persons who are desirous of satisfying
their morbid curiosity, taste and lust and for [love] of 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 the
pictures, the display of such pictures for commercial purposes is a
violation of Art. 201. If those pictures were shown in art exhibits and art
galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed (People vs. Go
Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court
are accorded great respect, even by this Court, unless such findings are
patently unsupported by the evidence on record or the judgment itself is
based on misapprehension of facts.31 In this case, petitioners neither
presented contrary evidence nor questioned the trial court’s findings.
There is also no showing that the trial court, in finding the materials
obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene
materials?
We emphasize that mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of
the forms under Article 201 is committed only when there is
publicity.32The law does not require that a person be caught in the act of
selling, giving away or exhibiting obscene materials to be liable, for as
long as the said materials are offered for sale, displayed or exhibited to
the public. In the present case, we find that petitioners are engaged in
selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio
E. Fernando Music Fair, named after petitioner Fernando.33 The mayor’s
permit was under his name. Even his bail bond shows that Hhe lives in
the same place.34 Moreover, the mayor’s permit dated August 8, 1996,
shows that he is the owner/operator of the store. 35 While the mayor’s
permit had already expired, it does not negate the fact that Fernando
owned and operated the establishment. It would be absurd to make his
failure to renew his business permit and illegal operation a shield from
prosecution of an unlawful act. Furthermore, when he preferred not to
present contrary evidence, the things which he possessed were
presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively
engaged in selling and exhibiting the obscene materials. Prosecution
witness Police Inspector Tababan, who led the PNP-CIDG NCR that
conducted the search, identified him as the store attendant upon whom
the search warrant was served.37 Tababan had no motive for testifying
falsely against Estorninos and we uphold the presumption of regularity
in the performance of his duties. Lastly, this Court accords great respect
to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in their
findings.38 In our view, no reversible error was committed by the
appellate court as well as the trial court in finding the herein petitioners
guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution
dated September 2, 2003, of the Court of Appeals affirming the Decision
of the Regional Trial Court of Manila, Branch 21, in Criminal Case No.
99-176582 are hereby AFFIRMED.
SO ORDERED.
5
6
CASE 3
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the
Department of Justice; and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondents.
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial
and so inextricably woven into the right to free speech and free
expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present would
be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished
freedom. We have struck down laws and issuances meant to curtail this
right, as in Adiong v. COMELEC,1Burgos v. Chief of Staff,2Social
Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary
Ermita.4 When on its face, it is clear that a governmental act is nothing
more than a naked means to prevent the free exercise of speech, it must
be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004
national and local elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation
allegedly between the President of the Philippines, Gloria Macapagal
Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped allegedly through wire-
tapping.5 Later, in a Malacañang press briefing, Secretary Bunye
produced two versions of the tape, one supposedly the complete
version, and the other, a spliced, “doctored” or altered version, which
would suggest that the President had instructed the COMELEC official
to manipulate the election results in the President’s favor. 6 It seems that
Secretary Bunye admitted that the voice was that of President Arroyo,
but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph
Estrada, Atty. Alan Paguia, subsequently released an alleged authentic
tape recording of the wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers. 8
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary
Raul Gonzales warned reporters that those who had copies of the
compact disc (CD) and those broadcasting or publishing its contents
could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that persons
possessing or airing said tapes were committing a continuing offense,
subject to arrest by anybody who had personal knowledge if the crime
was committed or was being committed in their presence. 9
4. On June 9, 2005, in another press briefing, Secretary Gonzales
ordered the National Bureau of Investigation (NBI) to go after
media organizations “found to have caused the spread, the playing and
the printing of the contents of a tape” of an alleged wiretapped
conversation involving the President about fixing votes in the 2004
national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily Inquirer and
GMA7 television network, because by the very nature of the Internet
medium, it was able to disseminate the contents of the tape more widely.
He then expressed his intention of inviting the editors and managers of
Inq7.net and GMA7 to a probe, and supposedly declared, “I [have] asked
the NBI to conduct a tactical interrogation of all concerned.” 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW
AND PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order
not to unnecessarily aggravate the same, the NTC warns all radio
stations and television network owners/operators that the conditions of
the authorization and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use [their] stations for the broadcasting or
telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the [NTC] that certain
personalities are in possession of alleged taped conversations which
they claim involve the President of the Philippines and a Commissioner
of the COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are
products of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, it is the
position of the [NTC] that the continuous airing or broadcast of the said
taped conversations by radio and television stations is a continuing
violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority issued to these radio
and television stations. It has been subsequently established that the
said tapes are false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are
hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations issued to
the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars
on program standards to be observed by radio and television stations.
NTC Memorandum Circular 111-12-85 explicitly states, among others,
that “all radio broadcasting and television stations shall, during any
broadcast or telecast, cut off from the air the speech, play, act or scene
or other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or
to propose and/or incite treason, rebellion or sedition.” The foregoing
directive had been reiterated by NTC Memorandum Circular No. 22-89,
which, in addition thereto, prohibited radio, broadcasting and television
stations from using their stations to broadcast or telecast any speech,
language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive or
treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of said Circulars and their
accompanying sanctions on erring radio and television stations and their
owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly
assured the KBP that the press release did not violate the constitutional
freedom of speech, of expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: 12
NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have
always been committed to the exercise of press freedom with high sense
of responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting
a restraint of press freedom or censorship. The NTC further denies and
does not intend to limit or restrict the interview of members of the
opposition or free expression of views.
What is being asked by NTC is that the exercise of press freedom [be]
done responsibly.
KBP has program standards that KBP members will observe in the
treatment of news and public affairs programs. These include verification
of sources, non-airing of materials that would constitute inciting to
sedition and/or rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and
handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of
the same.”
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court
against respondents Secretary Gonzales and the NTC, “praying for the
issuance of the writs of certiorari and prohibition, as extraordinary legal
remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the
respondents.”13
Alleging that the acts of respondents are violations of the freedom on
expression and of the press, and the right of the people to information
on matters of public concern,14petitioner specifically asked this Court:
7
[F]or [the] nullification of acts, issuances, and orders of respondents
committed or made since June 6, 2005 until the present that curtail the
public’s rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of President
Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. 15
Respondents16 denied that the acts transgress the Constitution, and
questioned petitioner’s legal standing to file the petition. Among the
arguments they raised as to the validity of the “fair warning” issued by
respondent NTC, is that broadcast media enjoy lesser constitutional
guarantees compared to print media, and the warning was issued
pursuant to the NTC’s mandate to regulate the telecommunications
industry. 17 It was also stressed that “most of the [television] and radio
stations continue, even to this date, to air the tapes, but of late within the
parameters agreed upon between the NTC and KBP.” 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional
challenge peculiar. Petitioner, who is not a member of the broadcast
media, prays that we strike down the acts and statements made by
respondents as violations of the right to free speech, free expression
and a free press. For another, the recipients of the press statements
have not come forward—neither intervening nor joining petitioner in this
action. Indeed, as a group, they issued a joint statement with respondent
NTC that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal
standing, having failed to allege “such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the Court so largely
depends for illumination of difficult constitutional questions.” 19
But as early as half a century ago, we have already held that where
serious constitutional questions are involved, “the transcendental
importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside if we must, technicalities of
procedure.” 20 Subsequently, this Court has repeatedly and consistently
refused to wield procedural barriers as impediments to its addressing
and resolving serious legal questions that greatly impact on public
interest,21 in keeping with the Court’s duty under the 1987 Constitution
to determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws and that
they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a
case involves an issue of overarching significance to our society, 22 we
therefore brush aside technicalities of procedure and take cognizance of
this petition,23 seeing as it involves a challenge to the most exalted of all
the civil rights, the freedom of expression. The petition raises other
issues like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only the
most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech
and freedom of the press have been infringed, the case at bar also gives
this Court the opportunity: (1) to distill the essence of freedom of speech
and of the press now beclouded by the vagaries of motherhood
statements; (2) to clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core concepts of prior
restraint, content-neutral and content-based regulations and their
constitutional standard of review; (4) to examine the historical difference
in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to
the ongoing blurring of the lines of distinction between print and
broadcast media.
E. Re-examining The law on freedom of speech,
of expression and of the press
No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances. 24
Freedom of expression has gained recognition as a fundamental
principle of every democratic government, and given a preferred right
that stands on a higher level than substantive economic freedom or other
liberties. The cognate rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the First Amendment of the
U.S. Bill of Rights,25 were considered the necessary consequence of
republican institutions and the complement of free speech. 26 This
preferred status of free speech has also been codified at the
international level, its recognition now enshrined in international law as
a customary norm that binds all nations.27
In the Philippines, the primacy and high esteem accorded freedom of
expression is a fundamental postulate of our constitutional
system. 28 This right was elevated to constitutional status in the 1935,
the 1973 and the 1987 Constitutions, reflecting our own lesson of history,
both political and legal, that freedom of speech is an indispensable
condition for nearly every other form of freedom.29 Moreover, our history
shows that the struggle to protect the freedom of speech, expression
and the press was, at bottom, the struggle for the indispensable
preconditions for the exercise of other freedoms. 30 For it is only when
the people have unbridled access to information and the press that they
will be capable of rendering enlightened judgments. In the oft-quoted
words of Thomas Jefferson, we cannot both be free and ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we
have adopted as part and parcel of our own Bill of Rights provision on
this basic freedom.31 What is embraced under this provision was
discussed exhaustively by the Court in Gonzales v. Commission on
Elections, 32 in which it was held:
…At the very least, free speech and free press may be identified with
the liberty to discuss publicly and truthfully any matter of public interest
without censorship and punishment. There is to be no previous restraint
on the communication of views or subsequent liability whether in libel
suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive
evil that Congress has a right to prevent. 33
Gonzales further explained that the vital need of a constitutional
democracy for freedom of expression is undeniable, whether as a
means of assuring individual self-fulfillment; of attaining the truth; of
assuring participation by the people in social, including political,
decision-making; and of maintaining the balance between stability and
change.34 As early as the 1920s, the trend as reflected in Philippine and
American decisions was to recognize the broadest scope and assure the
widest latitude for this constitutional guarantee. The trend represents a
profound commitment to the principle that debate on public issue should
be uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the
right to approve existing political beliefs or economic arrangements, to
lend support to official measures, and to take refuge in the existing
climate of opinion on any matter of public consequence.36 When
atrophied, the right becomes meaningless.37 The right belongs as well—
if not more—to those who question, who do not conform, who
differ.38 The ideas that may be expressed under this freedom are
confined not only to those that are conventional or acceptable to the
majority. To be truly meaningful, freedom of speech and of the press
should allow and even encourage the articulation of the unorthodox
view, though it be hostile to or derided by others; or though such view
“induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger.”39 To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us. 40
The scope of freedom of expression is so broad that it extends protection
to nearly all forms of communication. It protects speech, print and
assembly regarding secular as well as political causes, and is not
confined to any particular field of human interest. The protection covers
myriad matters of public interest or concern embracing all issues, about
which information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and
free press for religious, political, economic, scientific, news, or
informational ends, inasmuch as the Constitution’s basic guarantee of
freedom to advocate ideas is not confined to the expression of ideas that
are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The
protection afforded free speech extends to speech or publications that
are entertaining as well as instructive or informative. Specifically,
in Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court
stated that all forms of media, whether print or broadcast, are entitled to
the broad protection of the clause on freedom of speech and of
expression.
While all forms of communication are entitled to the broad protection of
freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to
newspapers and other print media, as will be subsequently discussed.
8
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would
appear that the right to free speech and a free press is not susceptible
of any limitation. But the realities of life in a complex society preclude a
literal interpretation of the provision prohibiting the passage of a law that
would abridge such freedom. For freedom of expression is not an
absolute, 42 nor is it an “unbridled license that gives immunity for every
possible use of language and prevents the punishment of those who
abuse this freedom.”
Thus, all speech are not treated the same. Some types of speech may
be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or
those of the community or society.43 The difference in treatment is
expected because the relevant interests of one type of speech, e.g.,
political speech, may vary from those of another, e.g., obscene speech.
Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories
of speech. 44 We have ruled, for example, that in our jurisdiction slander
or libel, lewd and obscene speech, as well as “fighting words” are not
entitled to constitutional protection and may be penalized.45
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to
each category, either consciously or unconsciously. 46 A study of free
speech jurisprudence—whether here or abroad—will reveal that courts
have developed different tests as to specific types or categories of
speech in concrete situations; i.e., subversive speech; obscene speech;
the speech of the broadcast media and of the traditional print media;
libelous speech; speech affecting associational rights; speech before
hostile audiences; symbolic speech; speech that affects the right to a fair
trial; and speech associated with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a)
the dangerous tendency doctrine which permits limitations on speech
once a rational connection has been established between the speech
restrained and the danger contemplated; 48 (b) the balancing of interests
tests, used as a standard when courts need to balance conflicting social
values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation
of type of situation; 49 and (c) the clear and present danger rule which
rests on the premise that speech may be restrained because there is
substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, “extremely
serious and the degree of imminence extremely high.” 50
As articulated in our jurisprudence, we have applied either
the dangerous tendency doctrine or clear and present danger test to
resolve free speech challenges. More recently, we have concluded that
we have generally adhered to the clear and present danger test. 51
E.3. In Focus: Freedom of the Press
Much has been written on the philosophical basis of press freedom as
part of the larger right of free discussion and expression. Its practical
importance, though, is more easily grasped. It is the chief source of
information on current affairs. It is the most pervasive and perhaps most
powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their
aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the
mistakes of every administration would go uncorrected and its abuses
unexposed. As Justice Malcolm wrote in United States v. Bustos:52
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; the wound
can be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving
of extra protection. Indeed, the press benefits from certain ancillary
rights. The productions of writers are classified as intellectual and
proprietary. Persons who interfere or defeat the freedom to write for the
press or to maintain a periodical publication are liable for damages, be
they private individuals or public officials.
E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and
Content-Based Regulations
Philippine jurisprudence, even as early as the period under the 1935
Constitution, has recognized four aspects of freedom of the press.
These are (1) freedom from prior restraint; (2) freedom from punishment
subsequent to publication; 53 (3) freedom of access to
information; 54 and (4) freedom of circulation.55
Considering that petitioner has argued that respondents’ press
statement constitutes a form of impermissible prior restraint, a closer
scrutiny of this principle is in order, as well as its sub-specie of content-
based (as distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that
their acts constitute prior restraints. This presents a unique tinge to the
present challenge, considering that the cases in our jurisdiction involving
prior restrictions on speech never had any issue of whether the
governmental act or issuance actually constituted prior restraint. Rather,
the determinations were always about whether the restraint was justified
by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been
based on the circumstances of each case, including the nature of the
restraint. And in its application in our jurisdiction, the parameters of this
principle have been etched on a case-to-case basis, always tested by
scrutinizing the governmental issuance or act against the circumstances
in which they operate, and then determining the appropriate test with
which to evaluate.
Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or
dissemination.56 Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment
of license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of
certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. 57 Any law
or official that requires some form of permission to be had before
publication can be made, commits an infringement of the constitutional
right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility
against all prior restraints on speech, and any act that restrains speech
is presumed invalid,58 and “any act that restrains speech is hobbled by
the presumption of invalidity and should be greeted with furrowed
brows,” 59 it is important to stress not all prior restraints on speech are
invalid. Certain previous restraints may be permitted by the
Constitution, but determined only upon a careful evaluation of the
challenged act as against the appropriate test by which it should be
measured against.
Hence, it is not enough to determine whether the challenged act
constitutes some form of restraint on freedom of speech. A distinction
has to be made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under
well defined standards;60 or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the
utterance or speech. 61 The cast of the restriction determines the test by
which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its
validity.62 Because regulations of this type are not designed to suppress
any particular message, they are not subject to the strictest form of
judicial scrutiny but an intermediate approach—somewhere between
the mere rationality that is required of any other law and the compelling
interest standard applied to content-based restrictions.63 The test is
called intermediate because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions be narrowly-tailored
to promote an important or significant governmental interest that is
unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of
speech or of the press based on content is given the strictest scrutiny in
9
light of its inherent and invasive impact. Only when the challenged act
has overcome the clear and present danger rule will it pass
constitutional muster,65 with the government having the burden of
overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-
based restraint will be struck down.66
With respect to content-based restrictions, the government must also
show the type of harm the speech sought to be restrained would bring
about—especially the gravity and the imminence of the threatened
harm—otherwise the prior restraint will be invalid. Prior restraint on
speech based on its content cannot be justified by hypothetical fears,
“but only by showing a substantive and imminent evil that has taken the
life of a reality already on ground.”67 As formulated, “the question in
every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.”68
The regulation which restricts the speech content must also serve an
important or substantial government interest, which is unrelated to the
suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what
is essential to the furtherance of that interest. 70 A restriction that is so
broad that it encompasses more than what is required to satisfy the
governmental interest will be invalidated. 71 The regulation, therefore,
must be reasonable and narrowly drawn to fit the regulatory purpose,
with the least restrictive means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it
is subjected to an intermediate review. A content-based
regulation,73 however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at
bar need to be subjected to the clear and present danger rule, as they
are content-based restrictions.The acts of respondents focused solely
on but one object—a specific content—fixed as these were on the
alleged taped conversations between the President and a COMELEC
official. Undoubtedly these did not merely provide regulations as to the
time, place or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents’ argument that the challenged act is valid on
the ground that broadcast media enjoys free speech rights that are
lesser in scope to that of print media. We next explore and test the
validity of this argument, insofar as it has been invoked to validate a
content-based restriction on broadcast media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers,
magazines and traditional printed matter, broadcasting, film and video
have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in
the United States. There, broadcast radio and television have been held
to have limited First Amendment protection,75 and U.S. Courts
have excluded broadcast media from the application of the “strict
scrutiny” standard that they would otherwise apply to content-based
restrictions.76 According to U.S. Courts, the three major reasons why
broadcast media stands apart from print media are: (a) the scarcity of
the frequencies by which the medium operates [i.e., airwaves are
physically limited while print medium may be limitless]; 77 (b) its
“pervasiveness” as a medium; and (c) its unique accessibility to
children. 78Because cases involving broadcast media need not follow
“precisely the same approach that [U.S. courts] have applied to other
media,” nor go “so far as to demand that such regulations serve
‘compelling’ government interests,”79they are decided on whether the
“governmental restriction” is narrowly tailored to further a substantial
governmental interest,”80 or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also
echoed a differentiation in treatment between broadcast and print
media. Nevertheless, a review of Philippine case law on broadcast
media will show that—as we have deviated with the American
conception of the Bill of Rights81—we likewise did not adopt
en masse the U.S. conception of freespeech as it relates to broadcast
media, particularly as to which test would govern content-based prior
restraints.
Our cases show two distinct features of this dichotomy. First, the
difference in treatment, in the main, is in the regulatory scheme applied
to broadcast media that is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g., obscenity, pornography,
seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security
or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is
subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without
making a distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was first
enunciated in Eastern Broadcasting Corporation (DYRE) v.
Dans,82 wherein it was held that “[a]ll forms of media, whether print or
broadcast, are entitled to the broad protection of the freedom of speech
and expression clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule…”83
Dans was a case filed to compel the reopening of a radio station which
had been summarily closed on grounds of national security. Although
the issue had become moot and academic because the owners were no
longer interested to reopen, the Court still proceeded to do an analysis
of the case and made formulations to serve as guidelines for all inferior
courts and bodies exercising quasi-judicial functions. Particularly, the
Court made a detailed exposition as to what needs be considered in
cases involving broadcast media. Thus:84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the
broad protection of the freedom of speech and expression clause. The
test for limitations on freedom of expression continues to be the clear
and present danger rule,that words are used in such circumstances and
are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that the lawmaker has a right to
prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570)
Chief Justice Enrique M. Fernando cites at least nine of our decisions
which apply the test. More recently, the clear and present danger test
was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v.
Bagatsing. (4) The clear and present danger test, however, does not
lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be
allocated among qualified users. A broadcast corporation cannot simply
appropriate a certain frequency without regard for government
regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting, more
than other forms of communications, receives the most limited protection
from the free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all citizens,
Material presented over the airwaves confronts the citizen, not only in
public, but in the privacy of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion picture theaters may be
prohibited from making certain material available to children, but the
same selectivity cannot be done in radio or television, where the listener
or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive
presence in the lives of all Filipinos. Newspapers and current books are
found only in metropolitan areas and in the poblaciones of municipalities
accessible to fast and regular transportation. Even here, there are low
income masses who find the cost of books, newspapers, and magazines
beyond their humble means. Basic needs like food and shelter perforce
enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The
television set is also becoming universal. Their message may be
simultaneously received by a national or regional audience of listeners
including the indifferent or unwilling who happen to be within reach of a
blaring radio or television set. The materials broadcast over the airwaves
reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons
whose reactions to inflammatory or offensive speech would be difficult
to monitor or predict. The impact of the vibrant speech is forceful and
10
immediate. Unlike readers of the printed work, the radio audience has
lesser opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the
industry itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which
incite the listeners to violently overthrow it. Radio and television may not
be used to organize a rebellion or to signal the start of widespread
uprising. At the same time, the people have a right to be informed. Radio
and television would have little reason for existence if broadcasts are
limited to bland, obsequious, or pleasantly entertaining utterances.
Since they are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality
of a representative democracy. In the 1918 case of United States v.
Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual
be exalted.
(7) Broadcast stations deserve the special protection given to all forms
of media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments
found in U.S. jurisprudence to justify differentiation of treatment (i.e., the
scarcity, pervasiveness and accessibility to children), but only after
categorically declaring that “the test for limitations on freedom of
expression continues to be the clear and present danger rule,” for all
forms of media, whether print or broadcast. Indeed, a close reading of
the above-quoted provisions would show that the differentiation that the
Court in Dans referred to was narrowly restricted to what is otherwise
deemed as “unprotected speech” (e.g., obscenity, national security,
seditious and inciting speech), or to validate a licensing or regulatory
scheme necessary to allocate the limited broadcast frequencies, which
is absent in print media. Thus, when this Court declared in Dans that the
freedom given to broadcast media was “somewhat lesser in scope than
the freedom accorded to newspaper and print media,” it was not as to
what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected
speech. 85
In the same year that the Dans case was decided, it was reiterated
in Gonzales v. Katigbak,86 that the test to determine free expression
challenges was the clear and present danger, again without
distinguishing the media.87Katigbak, strictly speaking, does not treat of
broadcast media but motion pictures. Although the issue involved
obscenity standards as applied to movies,88 the Court concluded its
decision with the following obiter dictum that a less liberal approach
would be used to resolve obscenity issues in television as opposed to
motion pictures:
All that remains to be said is that the ruling is to be limited to the concept
of obscenity applicable to motion pictures. It is the consensus of this
Court that where television is concerned, a less liberal approach calls
for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where
there is a set. Children then will likely be among the avid viewers of the
programs therein shown…..It cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the
welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that
the clear and present danger rule is the test we unquestionably adhere
to issues that involve freedoms of speech and of the press.89
This is not to suggest, however, that the clear and present danger rule
has been applied to all cases that involve the broadcast media. The rule
applies to all media, including broadcast, but only when the challenged
act is a content-based regulation that infringes on free speech,
expression and the press. Indeed, in Osmena v. COMELEC,90which
also involved broadcast media, the Court refused to apply the clear and
present danger rule to a COMELEC regulation of time and manner of
advertising of political advertisements because the challenged
restriction was content-neutral.91 And in a case involving due process
and equal protection issues, the Court in Telecommunications and
Broadcast Attorneys of the Philippines v. COMELEC92 treated a
restriction imposed on a broadcast media as a reasonable condition for
the grant of the media’s franchise, without going into which test would
apply.
That broadcast media is subject to a regulatory regime absent in print
media is observed also in other jurisdictions, where the statutory
regimes in place over broadcast media include elements of licensing,
regulation by administrative bodies, and censorship. As explained by a
British author:
The reasons behind treating broadcast and films differently from the
print media differ in a number of respects, but have a common historical
basis. The stricter system of controls seems to have been adopted in
answer to the view that owing to their particularimpact on audiences,
films, videos and broadcasting require a system of prior restraints,
whereas it is now accepted that books and other printed media do not.
These media are viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of harm. 93
Parenthetically, these justifications are now the subject of
debate. Historically, the scarcity of frequencies was thought to provide a
rationale. However, cable and satellite television have enormously
increased the number of actual and potential channels. Digital
technology will further increase the number of channels available. But
still, the argument persists that broadcasting is the most influential
means of communication, since it comes into the home, and so much
time is spent watching television. Since it has a unique impact on people
and affects children in a way that the print media normally does not, that
regulation is said to be necessary in order to preserve pluralism. It has
been argued further that a significant main threat to free expression—in
terms of diversity—comes not from government, but from private
corporate bodies. These developments show a need for a reexamination
of the traditional notions of the scope and extent of broadcast media
regulation. 94
The emergence of digital technology—which has led to the convergence
of broadcasting, telecommunications and the computer industry—has
likewise led to the question of whether the regulatory model for
broadcasting will continue to be appropriate in the converged
environment.95 Internet, for example, remains largely unregulated, yet
the Internet and the broadcast media share similarities, 96 and the
rationales used to support broadcast regulation apply equally to the
Internet.97 Thus, it has been argued that courts, legislative bodies and
the government agencies regulating media must agree to regulate both,
regulate neither or develop a new regulatory framework and rationale to
justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts freedom of speech or
of the press based on content is given the strictest scrutiny, with
the government having the burden of overcoming the presumed
unconstitutionality by the clear and present danger rule. This rule
applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as
it spells out the following: (a) the test; (b) the presumption; (c) the burden
of proof; (d) the party to discharge the burden; and (e) the quantum of
evidence necessary. On the basis of the records of the case at bar,
respondents who have the burden to show that these acts do not abridge
freedom of speech and of the press failed to hurdle the clear and present
danger test. It appears that the great evil which government wants to
prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar, however, are confused
and confusing, and respondents’ evidence falls short of satisfying the
clear and present danger test. Firstly, the various statements of the
Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also
suspect. The Press Secretary showed to the public two versions, one
supposed to be a “complete” version and the other, an “altered”
version. Thirdly, the evidence of the respondents on the who’s and the
how’s of the wiretapping act is ambivalent, especially considering the
tape’s different versions. The identity of the wire-tappers, the manner of
its commission and other related and relevant proofs are some of the
invisibles of this case. Fourthly, given all these unsettled facets of the
11
tape, it is even arguable whether its airing would violate the anti-
wiretapping law.
We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of different
kinds and doubtless, some of them provide norms of conduct which
even if violated have only an adverse effect on a person’s private comfort
but does not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot
support suppression of free speech and free press. In fine, violation of
law is just a factor, a vital one to be sure, which should be weighed in
adjudging whether to restrain freedom of speech and of the press.
The totality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and calibrated
measurement of the circumference of all these factors to determine
compliance with the clear and present danger test, the Court should not
be misinterpreted as devaluing violations of law. By all means, violations
of law should be vigorously prosecuted by the State for they breed their
own evil consequence. But to repeat, the need to prevent their violation
cannot per se trump the exercise of free speech and free press, a
preferred right whose breach can lead to greater evils. For this failure of
the respondents alone to offer proof to satisfy the clear and present
danger test, the Court has no option but to uphold the exercise of free
speech and free press. There is no showing that the feared violation of
the anti-wiretapping law clearly endangers the national security of the
State.
This is not all the faultline in the stance of the respondents. We slide to
the issue of whether the mere press statements of the Secretary of
Justice and of the NTC in question constitute a form of content-based
prior restraint that has transgressed the Constitution. In resolving this
issue, we hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or
circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice,
while the NTC issued its statement as the regulatory body of media. Any
act done, such as a speech uttered, for and on behalf of the government
in an official capacity is covered by the rule on prior restraint. The
concept of an “act” does not limit itself to acts already converted to a
formal order or official circular. Otherwise, the non formalization of an
act into an official order or circular will result in the easy circumvention
of the prohibition on prior restraint. The press statements at bar are acts
that should be struck down as they constitute impermissible forms of
prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on
record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio
and broadcast media. They also came from the Secretary of Justice, the
alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the
warnings, the KBP inexplicably joined the NTC in issuing an ambivalent
Joint Press Statement. After the warnings, petitioner Chavez was left
alone to fight this battle for freedom of speech and of the press. This
silence on the sidelines on the part of some media practitioners is too
deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts
should always be exercised with care and in light of the distinct facts of
each case. For there are no hard and fast rules when it comes to slippery
constitutional questions, and the limits and construct of relative
freedoms are never set in stone. Issues revolving on their construct must
be decided on a case to case basis, always based on the peculiar
shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should
be swift in striking them down as nullities per se. A blow too soon struck
for freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs
of certiorari and prohibition are hereby issued, nullifying the official
statements made by respondents on June 8, and 11, 2005 warning the
media on airing the alleged wiretapped conversation between the
President and other personalities, for constituting unconstitutional prior
restraint on the exercise of freedom of speech and of the press
SO ORDERED.
CASE 4
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.
12
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:
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

Dear Bishop Navarra: 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
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 The issues, which also served as guide for the oral arguments, are:20
promoting for or against the candidates and party-list groups with the
following names and messages, particularly described as follows:
I.

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

Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
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[;]

Message : CONSCIENCE VOTE (ANTI RH) TEAM

A. WHETHER PETITIONERS VIOLATED THE
HIERARCHY OF COURTS DOCTRINE AND
BUHAY; (PRO RH) TEAM PATAY JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS;
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY B. ASSUMING ARGUENDO THAT THE
AFOREMENTIONED ORDERS ARE NOT
CONSIDERED JUDGMENTS/FINAL
The three (3) – day notice expired on February 25, 2013.
ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL
Considering that the above-mentioned material is found to be in violation CIRCUMSTANCES WHICH WOULD ALLOW THIS
of Comelec Resolution No. 9615 promulgated on January 15, 2013 COURT TO TAKE COGNIZANCE OF THE CASE[;]
particularly on the size (even with the subsequent division of the said
tarpaulin into two), as the lawful size for election propaganda material is II.
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. WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A
We pray that the Catholic Church will be the first institution to help the POLITICAL CANDIDATE[;]
Commission on Elections inensuring the conduct of peaceful, orderly,
honest and credible elections.
III.
Thank you and God Bless!
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
[signed] ADVERTISEMENT[;]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
A. ASSUMING ARGUENDO THAT THE
TARPAULINS ARE A FORM OF EXPRESSION,
Concerned about the imminent threatof prosecution for their exercise of WHETHER THE COMELEC POSSESSES THE
free speech, petitioners initiated this case through this petition for
AUTHORITY TO REGULATE THE SAME[;]
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 B. WHETHER THIS FORM OF EXPRESSION MAY
that: (1) the petition be given due course; (2) a temporary restraining BE REGULATED[;]
order (TRO) and/or a writ of preliminary injunction be issued restraining
13
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 COMELEC En Banc, if:
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,26 Repol 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.32 At 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
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. 46No 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.
14
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 notice 51 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." 55Definitely,
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
15
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
16
lower courts on this matter. In Government of the United States v. modernization of voters’ registration lists,84 and the status and existence
Purganan,76 this court took cognizance of the case as a matter of first of a public office.85
impression that may guide the lower courts:
This case also poses a question of similar, if not greater import. Hence,
In the interest of justice and to settle once and for all the important issue a direct action to this court is permitted.
of bail in extradition proceedings, we deem it best to take cognizance of
the present case. Such proceedings constitute a matter of first
It is not, however, necessary that all of these exceptions must occur at
impression over which there is, as yet, no local jurisprudence to guide
the same time to justify a direct resort to this court. While generally, the
lower courts.77
hierarchy of courts is respected, the present case falls under the
recognized exceptions and, as such, may be resolved by this court
This court finds that this is indeed a case of first impression involving as directly.
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
I.D
provide substantial answers to, through jurisprudence. Thus, direct
resort to this court is allowed.
The concept of a political question
Fourth, the constitutional issues raisedare better decided by this court.
In Drilon v. Lim,78 this court held that: 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
. . . it will be prudent for such courts, if only out of a becoming modesty,
Osmeña v. COMELEC86 to support their position:
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 It might be worth mentioning that Section 26, Article II, of the Constitution
participated in its discussion.79 (Citation omitted) 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
In this case, it is this court, with its constitutionally enshrined judicial
Constitution to be all that adversarial or irreconcilably inconsistent with
power, that can rule with finality on whether COMELEC committed grave
the right of free expression. In any event, the latter, being one of general
abuse of discretion or performed acts contrary to the Constitution
application, must yield to the specific demands of the Constitution. The
through the assailed issuances.
freedom of expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all fundamental
Fifth, the time element presented in this case cannot be ignored. This rights, it is not without limitations.
case was filed during the 2013 election period. Although the elections
have already been concluded, future cases may be filed that necessitate
The case is not about a fight between the "rich" and the "poor" or
urgency in its resolution. Exigency in certain situations would qualify as
between the "powerful" and the "weak" in our society but it is to me a
an exception for direct resort to this court.
genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to
Sixth, the filed petition reviews the act of a constitutional organ. media coverage and thereby be equally perceived as giving real life to
COMELEC is a constitutional body. In Albano v. Arranz, 80 cited by the candidates’ right of free expression rather than being viewed as an
petitioners, this court held that "[i]t is easy to realize the chaos that would undue restriction of that freedom. The wisdom in the enactment of the
ensue if the Court of First Instance ofeach and every province were [to] law, i.e., that which the legislature deems to be best in giving life to the
arrogate itself the power to disregard, suspend, or contradict any order Constitutional mandate, is not for the Court to question; it is a matter that
of the Commission on Elections: that constitutional body would be lies beyond the normal prerogatives of the Court to pass upon. 87
speedily reduced to impotence."81
This separate opinion is cogent for the purpose it was said. But it is not
In this case, if petitioners sought to annul the actions of COMELEC in point in this case.
through pursuing remedies with the lower courts, any ruling on their part
would not have been binding for other citizens whom respondents may
The present petition does not involve a dispute between the rich and
place in the same situation. Besides, thiscourt affords great respect to
poor, or the powerful and weak, on their equal opportunities for media
the Constitution and the powers and duties imposed upon COMELEC.
coverage of candidates and their right to freedom of expression. This
Hence, a ruling by this court would be in the best interest of respondents,
case concerns the right of petitioners, who are non-candidates, to post
in order that their actions may be guided accordingly in the future.
the tarpaulin in their private property, asan exercise of their right of free
expression. Despite the invocation of the political question doctrine by
Seventh, petitioners rightly claim that they had no other plain, speedy, respondents, this court is not proscribed from deciding on the merits of
and adequate remedy in the ordinary course of law that could free them this case.
from the injurious effects of respondents’ acts in violation of their right to
freedom of expression.
In Tañada v. Cuenco,88 this court previously elaborated on the concept
of what constitutes a political question:
In this case, the repercussions of the assailed issuances on this basic
right constitute an exceptionally compelling reason to justify the direct
What is generally meant, when it is said that a question is political, and
resort to this court. The lack of other sufficient remedies in the course of
not judicial, is that it is a matter which is to be exercised by the people in
law alone is sufficient ground to allow direct resort to this court.
their primary political capacity, or that it has been specifically delegated
to some other department or particular officer of the government,
Eighth, the petition includes questionsthat are "dictated by public welfare withdiscretionary power to act.89 (Emphasis omitted)
and the advancement of public policy, or demanded by the broader
interest of justice, or the orders complained of were found to be patent
It is not for this court to rehearse and re-enact political debates on what
nullities, or the appeal was consideredas clearly an inappropriate
the text of the law should be. In political forums, particularly the
remedy."82 In the past, questions similar to these which this court ruled
legislature, the creation of the textof the law is based on a general
on immediately despite the doctrine of hierarchy of courts included
discussion of factual circumstances, broadly construed in order to allow
citizens’ right to bear arms,83 government contracts involving
for general application by the executive branch. Thus, the creation of the
17
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
18
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
19
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
20
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.
21
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
22
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." 160 It 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 . . .
23
....
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.189It 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.
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

In the hierarchy of civil liberties, the rights of free expression and of

While the tarpaulin may influence the success or failure of the named
assembly occupy a preferred position as they are essential to the
candidates and political parties, this does not necessarily mean it is
preservation and vitality of our civil and political institutions; and such
election propaganda. The tarpaulin was not paid for or posted "in return
priority "gives these liberties the sanctity and the sanction not permitting
for consideration" by any candidate, political party, or party-list group.
dubious intrusions."195 (Citations omitted)

The second paragraph of Section 1(4) of COMELEC Resolution No.

This primordial right calls for utmost respect, more so "when what may
9615, or the rules and regulations implementing Republic Act No. 9006
be curtailed is the dissemination of information to make more meaningful
as an aid to interpret the law insofar as the facts of this case requires,
the equally vital right of suffrage."196 A similar idea appeared in our
states:
jurisprudence as early as 1969, which was Justice Barredo’s concurring
and dissenting opinion in Gonzales v. COMELEC:197
4. The term "political advertisement" or "election propaganda" refers to
any matter broadcasted, published, printed, displayed or exhibited, in
I like to reiterate over and over, for it seems this is the fundamental point
any medium, which contain the name, image, logo, brand, insignia, color
others miss, that genuine democracy thrives only where the power and
motif, initials, and other symbol or graphic representation that is capable
right of the people toelect the men to whom they would entrust the
of being associated with a candidate or party, and is intended to draw
privilege to run the affairs of the state exist. In the language of the
the attention of the public or a segment thereof to promote or oppose,
declaration of principles of our Constitution, "The Philippines is a
directly or indirectly, the election of the said candidate or candidates to
republican state. Sovereignty resides in the people and all government
a public office. In broadcast media, political advertisements may take the
authority emanates from them" (Section 1, Article II). Translating this
form of spots, appearances on TV shows and radio programs, live or
declaration into actuality, the Philippines is a republic because and
taped announcements, teasers, and other forms of advertising
solely because the people in it can be governed only by officials whom
messages or announcements used by commercial advertisers. Political
they themselves have placed in office by their votes. And in it is on this
advertising includes matters, not falling within the scope of personal
cornerstone that I hold it tobe self-evident that when the freedoms of
opinion, that appear on any Internet website, including, but not limited
speech, press and peaceful assembly and redress of grievances are
to, social networks, blogging sites, and micro-blogging sites, in return for
being exercised in relation to suffrage or asa means to enjoy the
consideration, or otherwise capable of pecuniary estimation. (Emphasis
inalienable right of the qualified citizen to vote, they are absolute and
supplied)
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 It is clear that this paragraph suggests that personal opinions are not
and at all times. Every holder of power in our government must be ready included, while sponsored messages are covered.

24
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.
25
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.234The 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. Williams 237 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
26
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.
27
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
28
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."297 This 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
29
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.
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

Thus clearly, regulation of speech in the context of electoral campaigns
private property or constitutes an arbitrary or unreasonable infringement
made by candidates or the members of their political parties or their
of property rights is void, because it is repugnant to the constitutional
political parties may be regulated as to time, place, and manner. This is
guaranties of due process and equal protection of the laws. 316 (Citation
the effect of our rulings in Osmeña v. COMELEC and National Press
omitted)
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
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
30
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
31
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.
CASE 5
G.R. No. 164785 March 15, 2010
ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the
Movie and Television Review and Classification Board, MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ,
JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR.,
MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165636
ELISEO F. SORIANO, Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD,
ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL
PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and
FLORIMONDO C. ROUS, in their capacity as members of the Hearing
and Adjudication Committee of the MTRCB, JESSIE L. GALAPON,
ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M.
SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before the MTRCB, Respondents.
RESOLUTION
VELASCO, JR., J.:
Before us is this motion of petitioner Eliseo F. Soriano for
reconsideration of the Decision of the Court dated April 29, 2009,
modifying that of the Movie and Television Review and Classification
Board (MTRCB) by imposing the penalty of three-month suspension on
the television show Ang Dating Daan, instead of on petitioner Soriano,
as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1)
the suspension thus meted out to the program constitutes prior restraint;
(2) the Court erred in ruling that his utterances1 did not constitute
exercise of religion; (3) the Court erred in finding the language used as
offensive and obscene; (4) the Court should have applied its policy of
non-interference in cases of conflict between religious groups; and (5)
the Court erred in penalizing the television program for the acts of
petitioner.
The motion has no merit.
Petitioner’s threshold posture that the suspension thus imposed
constitutes prior restraint and an abridgement of his exercise of religion
and freedom of expression is a mere rehash of the position he articulated
in the underlying petitions for certiorari and expounded in his
memorandum.2 So are the supportive arguments and some of the
citations of decisional law, Philippine and American, holding it together.
They have been considered, sufficiently discussed in some detail, and
found to be without merit in our Decision. It would, thus, make little sense
to embark on another lengthy discussion of the same issues and
arguments.
Suffice it to reiterate that the sanction imposed on the TV program in
question does not, under the factual milieu of the case, constitute prior
restraint, but partakes of the nature of subsequent punishment for past
32
violation committed by petitioner in the course of the broadcast of the
program on August 10, 2004. To be sure, petitioner has not contested
the fact of his having made statements on the air that were contextually
violative of the program’s "G" rating. To merit a "G" rating, the program
must be "suitable for all ages," which, in turn, means that the "material
for television [does not], in the judgment of the [MTRCB], x x x contain
anything unsuitable for children and minors, and may be viewed without
adult guidance or supervision."3 As previously discussed by the Court,
the vulgar language petitioner used on prime-time television can in no
way be characterized as suitable for all ages, and is wholly inappropriate
for children.
Petitioner next harps on the primacy of his freedoms, referring
particularly to the exercise of his religious beliefs and profession, as
presiding minister of his flock, over the right and duty of the state
as parens patriae. Petitioner’s position may be accorded some cogency,
but for the fact that it fails to consider that the medium he used to make
his statements was a television broadcast, which is accessible to
children of virtually all ages. As already laid down in the Decision subject
of this recourse, the interest of the government in protecting children
who may be subjected to petitioner’s invectives must take precedence
over his desire to air publicly his dirty laundry. The public soapbox that
is television must be guarded by the state, which purpose the MTRCB
serves, and has served, in suspending Ang Dating Daan for petitioner’s
statements. As emphasized in Gonzalez v. Kalaw Katigbak, 4 the
freedom of broadcast media is, in terms of degree of protection it
deserves, lesser in scope, especially as regards television, which
reaches every home where there is a set, and where children will likely
be among the avid viewers of the programs shown. The same case also
laid the basis for the classification system of the MTRCB when it stated,
"It cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young." 5
The penalty of suspension imposed on petitioner has driven him to liken
the Court to "a blind man who was asked to describe an elephant, and
by his description he stubbornly believed that an elephant is just the
same as a Meralco post after touching one if its legs."6 Petitioner makes
this comparison with the view that the factual backdrop against which
his statements were made was purportedly not considered by the Court.
As he presently argues:
The Honorable Court should have rendered its decision in light of the
surrounding circumstances why and what prompted herein petitioner to
utter those words. Clearly, he was provoked because of the malicious
and blatant splicing by the INC ministers of his recorded voice. Verily,
Petitioner submits that the choice of words he used has been harsh but
strongly maintains that the same was consistent with his constitutional
right of freedom of speech and religion.
Contrary to petitioner’s impression, the Court has, in fact, considered the
factual antecedents of and his motive in making his utterances, and has
found those circumstances wanting as defense for violating the
program’s "G" rating. Consider the following excerpts from the Court’s
Decision:
There is nothing in petitioner’s statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a
televised bible exposition program does not automatically accord them
the character of a religious discourse. Plain and simple insults directed
at another person cannot be elevated to the status of religious speech.
Even petitioner’s attempts to place his words in context show that he
was moved by anger and the need to seek retribution, not by any
religious conviction. His claim, assuming its veracity, that some INC
ministers distorted his statements respecting amounts Ang Dating Daan
owed to a TV station does not convert the foul language used in
retaliation as religious speech. We cannot accept that petitioner made
his statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged lies being
spread by a rival religious group. They simply illustrate that petitioner
had descended to the level of name-calling and foul-language discourse.
Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.
And just to set things straight, the penalty imposed is on the program,
not on petitioner.
Petitioner would next have the Court adopt a hands-off approach to the
conflict between him and the Iglesia Ni Cristo. In support of his urging,
he cites Iglesia ni Cristo v. Court of Appeals. 7
Petitioner’s invocation of Iglesia ni Cristo to support his hands-off thesis
is erroneous. Obviously, he fails to appreciate what the Court stated in
that particular case when it rejected the argument that a religious
program is beyond MTRCB’s review and regulatory authority. We
reproduce what the Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioner’s postulate that its religious program is per se
beyond review by the respondent [MTRCB]. Its public broadcast on TV
of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children.
The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty bound to
prevent, i.e. serious detriment to the more overriding interest of public
health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history
counsels the Court against its blind adoption as religion is and continues
to be a volatile area of concern in our country today. Across the sea and
in our shore, the bloodiest and bitterest wars fought by men were caused
by irreconcilable religious differences. Our country is still not safe from
the recurrence of this stultifying strife considering our warring religious
beliefs and the fanaticism with which some of us cling and claw to these
beliefs. x x x For when religion divides and its exercise destroys, the
State should not stand still.8 (Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law,
alleging that the registered producer of the program is not a party to the
proceedings. Hence, the program cannot, so petitioner asserts, be
penalized.
We will let the records speak for themselves to refute that argument.
As per petitioner’s admission in his petition for certiorari filed with the
Court, he is "the Executive Producer of Ang Dating Daan, a televised
bible exposition program produced by the Philippine-based religious
organization, Church of God International."9 It is unclear, then, which
producer the movant is referring to in claiming that there was no
representation before the MTRCB. He was and is the representative of
Ang Dating Daan, and the claim that there was no due process of law is
simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the
instant motion, certain relevant issues have been raised by some
members of the Court that ought to be addressed if only to put things in
their proper perspective. We refer to the matter of obscenity.
As stressed at every possible turn in the challenged Court’s Decision,
the defining standards to be employed in judging the harmful effects of
the statements petitioner used would be those for the average child, not
those for the average adult. We note that the ratings and regulation of
television broadcasts take into account the protection of the child, and it
is from the child’s narrow viewpoint that the utterances must be
considered, if not measured. The ratings "G," "PG" (parental guidance),
"PG-13," and "R" (restricted or for adults only) suggest as much. The
concern was then, as now, that the program petitioner hosted and
produced would reach an unintended audience, the average child, and
so it is how this audience would view his words that matters. The
average child would not be concerned with colorful speech, but, instead,
focus on the literal, everyday meaning of words used. It was this literal
approach that rendered petitioner’s utterances obscene.1avvphi1
The Court has taken stock of Action for Children’s Television v.
FCC,10 but finds this U.S. case not to be of governing application to this
jurisdiction under the present state of things. The so-called "safe harbor"
of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children’s Television
as the time wherein broadcast of indecent material may be permitted, is
believed inapplicable here. As it were, there is no legislative enactment
or executive issuance setting a similar period in the Philippines wherein
indecent material may be broadcast. Rather than fix a period for allowing
indecent programming, what is used in this jurisdiction is the system of
classification of television programs, which the petitioner violated. His
program was rated "G," purported to be suitable for all ages. We cannot
lose sight of the violation of his program’s classification that carried with
it the producer’s implied assurance that the program did not contain
anything unsuitable for children and minors. The hour at which it was
broadcasted was of little moment in light of the guarantee that the
program was safe for children’s viewing.
The suspension of the program has not been arrived at lightly. Taking
into account all the factors involved and the arguments pressed on the
Court, the suspension of the program is a sufficiently limited disciplinary
action, both to address the violation and to serve as an object lesson for
the future. The likelihood is great that any disciplinary action imposed on
petitioner would be met with an equally energetic defense as has been
put up here. The simple but stubborn fact is that there has been a
33
violation of government regulations that have been put in place with a
laudable purpose, and this violation must accordingly be dealt with. We
are not unmindful of the concerns on the restriction of freedoms that may
occur in imposing sanctions upon erring individuals and institutions, but
it cannot be over-emphasized that the freedoms encased in the Bill of
Rights are far from absolute. Each has its own limits, responsibilities,
and obligations. Everyone is expected to bear the burden implicit in the
exercise of these freedoms. So it must be here.
WHEREFORE, petitioner’s motion for reconsideration is hereby
DENIED.
No further pleadings shall be entertained in this case. Let entry of
judgment be made in due course.
SO ORDERED.
CASE 6
G.R. No. 170341
MANILA BULLETIN PUBLISHING CORPORATION AND RUTHER
BATUIGAS, Petitioners
vs.
VICTOR A. DOMINGO AND THE PEOPLE OF THE PHILIPPINES,
Respondents
DECISION
MARTIRES, J.:
Through their petition for review under Rule 45 of the Rules of Court,
petitioners plead that the Court nullify and set aside the 30 March 2005
decision1 and 25 October 2005 xesolution2 of the Court of
Appeals (CA), Eighteenth Division in CA-G.R. CR. No. 19089 affirming
the joint decision3 of the Regional Trial Court, Branch 6, Tacloban City,
in Civil Case No. 91- 02-23 and Criminal Case No. 91-03-159.
THE FACTS
Petitioner Ruther D. Batuigas (Batuigas) was a writer of the widely
circulated tabloid Tempo, published by the Manila Bulletin Publishing
Corporation (Manila Bulletin).
On 20 December 1990, Batuigas wrote an article in his Bull's Eye
column in Tempo titled "Crucial task for JoeCon's successor." The
article dealt with the letter-complaint of the Waray employees of the
Department of Trade and Industry (DTI), Region VIII on the
"[m]ismanagement, low moral[e], improper decorum, gross inefficiency,
nepotism, etc." in the office. One of the public officials complained of was
petitioner Regional Director Victor Domingo (Domingo) who was
accused of dereliction of official duties, among others. 4 The "JoeCon"
referred to was the outgoing DTI Secretary, Jose Concepcion.
On 4 January 1991, Batuigas wrote in his column titled "A challenge to
Sec. Garrucho" about the alleged "lousy perfoRMance of Regional
Director R.D. Domingo in DTI Region 8," among others.5 Peter Garrucho
was the newly appointed DTI Secretary who took over from Jose
Concepcion.
Offended by these two articles, Domingo filed, on 18 January 1991, a
complaint for libel against Ba.tuigas before the Provincial Prosecutor of
Palo, Leyte.6
On 7 February 1991, Domingo likewise filed a complaint for Damages
before the Regional Trial Court (RTC) of Palo, Leyte, against Batuigas
and the Manila Bulletin. The complaint, docketed as Civil Case No. 91-
02-23, was raffled to the RTC, Branch 6, Palo, Leyte.7
On 18 March 1991, the Provincial Prosecutor terminated the preliminary
investigation with the filing of an Information for Libel8 against Batuigas,
viz:
That on or about the 20th day of December 1990, and the 4th day of
January 1991, the above-named accused, with malice afterthought and
with intent to damage, ruin and discredit the good name and reputation
of one VICTOR A. DOMINGO of Tacloban City, Leyte, did then and there
willfully, unlawfully and feloniously wr[o]te and publish[ed] in the TEMPO
Publication in Manila, the following, to wit:
December 20, 1990
But whoever will succeed JoeCon (Mr. Jose Concepcion, then the
Secretary of the Department of Trade and Industry), will inherit a brewing
problem at the Eastern Visayas office of the Department of Trade and
industry.
Eastern Visayas in Region 8 is made up of two Leyte and three Samar
provinces.
In their letter to this comer, the Waray employees of DTI-8 say they are
disgusted over how things are being run and handled in the regional
office in Tacloban City.
Mismanagement, low morale, improper decorum, gross inefficiency,
nepotism, etc.
"These complaints, they say, were brought last year to the attention of
DTI Makati. Civil Service Commission and Ombudsman.
Wala raw nangyari sa reklamo nila.
Kaya kami lumapit sa inyo, Gg. Batuigas, dahil nagbibigay ng resulta
ang kolum ninyo," his letter said.
To JoeCon's successor, here are the specifics:
Regional Director V. Domingo is accused of dereliction of official duties.
PECS are allegedly mismanaged, the Kalakalan program not given any
direction arid non-implementation of the rules on product standards.
The complainants charge that Director Domingo is more interested in
night[-]clubbing the female members of his staff.
He also brings out the staff to seminars and conferences because he
enjoys the pleasure of their company and his being out of his region,
they aver.
A provincial director has organized his staff composed of clan members.
Only his house pets were not included.
A couple are in the same office holding sensitive positions.
P. Caludac, a division chief, has hired an aunt to assume a vital post.
On the pretext that they are on fieldwork, time cards of ass-kissers are
punched to the detriment of those loyal to the public service.
And these spoiled brats are led by no less than Director Domingo's
secretary.
This corner is also told that the director's personal secretary is more
often seen in the city hotels and beauty parlors than in her office.
The civil status of the media specialist is officially recorded as 'single'
although her three children were sired by different fathers.
And Director Domingo has full knowledge of such immorality.
The Leyte provincial director has neglected to perform his functions
causing a downfall in business.
This outright neglect is detrimental to DTI and the region's progress.
These national employees should be commended for bringing into the
open this garbage that has piled in their own backyard.
To JoeCon's successor, the chopping board is ready.
All you need is a Muslim kris.
Palakulin mo, Pare ko!
January 4, 1991 issue:
Newly appointed Secretary of the Department of Trade and Industry
Peter Garrucho has a difficult job ahead of him.
He is like sailing in turbulent waters.
If he fails the exception (sic) of the public, it is not only his name: at
stake, but of Tita Cory, too,
He must perform something extraordinary to surpass what JoeCon did
at DTI.
One problem that he should give priority [to] is the lousy perfom1ance of
Regional Director (sic) Domingo in DTI Region 8.
There is a serious breakdown of morale of DTI employees in that region
because of Domingo's mismanagement.
After we exposed the alleged shenanigans of Domingo and his minions
in our Dec. 20 column, the guy reportedly went on the air over PR TV 12
and radio station
DYXL (sic) in Tacloban City and announced that he would sue this
columnist with a 'multi-million pesos' libel [case].
But why should Domingo threaten us with libel suits instead of
presenting his side is something that we can't understand.
We have volumes of documents against you, Mr. Domingo, furnished us
by your people there at DTI Region 8.
Maybe you should answer them point by point instead of issuing threats
against us.
Ms. Lilia Bautista, DTI Undersecretary for personnel and administration
should know all the charges against you by this time.
Your people there have been sending her documented complaints long
time ago, before I exposed your kalokohan in my Dec. 20 column.
You will be reading more about them soon.
Abangan!"
thereby injuring the good name, integrity and honor of said Victor A.
Domingo and causing and exposing him to public hatred, ridicule and
contempt.9
The Information, docketed as Criminal Case No. 91-03-159, was raffled
to the RTC, Branch 6, Palo, Leyte. The criminal case was subsequently
consolidated with Civil Case No. 91-02-23.
34
When called to the witness stand, Domingo, then the DTI Director for
Region VIII, denied the allegations against him which were contained in
the 20 December 1990 and 4 January 1991 articles of Batuigas. 10 He
claimed that he felt like he had been assassinated because of these
articles, while his family members were emotionally upset and
traumatized.11
To support his claim that the allegations against him were not true,
Domingo presented the following: (a) his sworn statement12 for the filing
of a libel case against Batuigas;13 (b) the Joint Affidavit14 of all the
employees of the DTI Provincial Office denying that they had sent a letter
of complaint to Batuigas as mentioned in the 20 December 1990 article
and as to the allegations contained therein;15 (c) the 8 January 1991
letter16 of Civil Service Commission (CSC) Chairman Patricia Sto.
Tomas (Chairman Sto. Tomas) to Batuigas in response to the 20
December 1990 article on the alleged "mismanagement, low morale,
gross inefficiency and nepotism" pervading at the DTI Region VIII; 17 (d)
the CSC Indorsement18 of Region VIII Director Eliseo Gatchalian relative
to the findings and recommendations on the complaint of R. De Paz and
company;19 (e) the 7 November 1990 letter20 of Victoria E. Valeriano
(Valeriano) to the CSC Regional Director with reference to her
investigation on the complaint of R. De Paz and company against him,
among others, and which contained Valeriano' s recommendaion that
the complaint be dismissed and be considered closed and terminated21;
(f) the CSC Region VIII Report of Investigation22 where the complaint of
immorality against him and Jacqueline G. Aguiles was dismissed; 23 (g)
his draft letter24 to Batuigas protesting the inaccuracies and the ill
motivation of the 20 December 1990 column but which letter he no
longer sent to Batuigas;25 (h) the 28 September 1989 letter26 of the DTI
Director of Legal Affairs transmitting the 7 August 1989 resolution of the
Office of the Ombudsman in OSP-88-02282 dismissing the complaint of
Arturo Salvacion against him, among others;27 (i) the 7 August 1989
resolution28 of the Office of the Ombudsman in OSP-88-02282;29 (J) the
21 August 1989 memorandum.30 of the Office of the Ombudsman on the
qomplaint against him by Jose Amable;31(k) the 14 January 1991
resolution32 of the Regiona1 Development Council expressing its
support and confidence in him;33 (l) the 4 January 1991 resolution34 of
the Leyte Private Media, Inc. where he was commended for being a
clean public official and a model family man; 35 (m) the respective
affidavits of DTI Assistant Secretary Jose Mari S. Yu36 and DTI Director
Zafrullah G. Masahud37 vouching for his integrity and morality;38 (n) the
DTI certification39 of Amando T. Alvis stating that the DTI Region VIII has
no employee by the name of R. de Paz or Meillin dela Cruz either in the
past or at present; (o) the resolution40 of Provincial Prosecutor Joventino
P. Isidro on the libel complaint he filed against Batuigas; 41 and, (p) the
affidavit42 of the DTI Region VIII employees denying the statements of
Batuigas in his column.43
Domingo stated that his friends who knew him well knew that the articles
were fabrications; those who did not know him that well would think him
guilty of these charges, some of whom made hurtful comments. He
quantified the mental anguish, sleepless nights, and wounded feelings
that he suffered as a result of the false and malicious charges against
him by Batuigas in the amount of ₱2 million. He asked that he be paid
Pl million and ₱500,000.00 for moral and exemplary damages,
respectively. He claimed to have paid ₱l0,000.00 as filing fee for his
complaint against Batuigas and that he agreed to pay his lawyer
₱200.00 per appearance.44
Domingo claimed that after his exoneration by the CSC no other charges
were filed against him before any court or body. On the complaint of
immorality, similar charges were filed against him but these were also
dismissed.45
Atty. Imelda Nartea,46 a resident of Tacloban; Gilene Sta. Maria
Advincula,47 an employee of the DTI Region VIII during the time that
Domingo was the Regional Director; and Jose Nicolasora,48 a
businessman from Tacloban, testified to deny the allegations against
Domingo.
Batuigas took the witness stand for his defense. As the chief reporter
and a columnist of Tempo, he described his work as an expose, a
product of investigative work. He claimed that he exposes anomalies
and other shenanigans in the government and even of private individuals
in the hope that corruption in the government might be minimized. As a
result of his exposes, he was able to cause the dismissal of some
officials in the government, although cases were also filed against him
by officials of the government. At the time he testified, he had not been
convicted in any of the cases filed against him.49
He stated that he met Domingo for the first time during the previous
hearing of the cases. He only came to know of Domingo when he
received several letters of complaint against the Regional Director. He
presumed that the copies of the complaints were those filed against
Domingo before the CSC and the Office of the Ombudsman. Thus, he
wrote the questioned articles because he found the complaints to be of
public interest as these involved the shenanigans committed by
Domingo in his office. He no longer had copies of the complaints
claiming he lost these when he left the Manila Bulletin.50
Ruling of the Regional Trial Court
In a joint decision51 dated 2 December 1994, the RTC resolved Civil
Case No. 91-02-23 and Crim. Case No. 91-03-159 as follows:
Wherefore, finding accused Ruther Batuigas guilty beyond reasonable
doubt and principal of the crime of Libel defined by Article 353 in relation
to Article 354 of the Revised Penal Code, and penalized under Article
355 of the same Code, hereby imposes upon accused Ruther Batuigas
a fine of Six Thousand (₱6,000.00) Pesos with subsidiary imprisonment
in case of insolvency.
In Civil Case No. 91-02-23, judgment is hereby rendered in favor of the
plaintiff and against the defendants:
1. Ordering defendants Ruther Batuigas and the Manila Bulletin
Corporation to solidarily pay plaintiff moral damages in the amount of
One Million (₱l,000,000.00) Pesos;
2. Ordering the same defendants to solidarily pay the same plaintiff the
sum of Five Hundred Thousand (₱500,000.00) Pesos exemplary
damages;
3. Ordering the same defendants to solidarily pay the same plaintiff the
sum of Two Hundred Thousand (₱200,000.00) Pesos attorney's fees;
litigation expenses in the sum of Ten Thousand (₱l0,000.00) Pesos; and
4. Ordering the same defendants to solidarily pay the costs of this suit.52
Ruling of the Court of Appeals
Batuigas and the Manila Bulletin raised the decision of the RTC via an
appeal, docketed as CA-G.R. CR. No. 19089, to the CA, Cebu City. On
30 March 2005, the CA Eighteenth Division53 rendered its decision the
dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing, the joint decision rendered
by the Regional Trial Court, Branch 6, Tacloban City in criminal case no.
91-03159 for libel and in civil case no. 91-02-23 for damages is hereby
AFFIRMED in toto.
Costs against appellant.54
Undeterred, Batuigas and the Manila Bulletin sought a reconsideration
of the decision which was denied by the CA in its
resolution55 promulgated on 25 October 2005.
Hence, this petition for review on certiorari.
Issues
Batuigas and the Manila Bulletin anchored their unanimous plea for the
reversal of the CA's decision and resolution on the following grounds:
I.
WITH ALL DUE RESPECT, THE COURT OF APPEALS GRAVELY
ERRED IN ITS DECISION IN DISREGARDING, CONTRARY TO LAW,
CONTROLLING JURISPRUDENCE, WHICH WOULD HA VE
COMPELLED THE COURT TO CONCLUDE THAT (1) THE ARTICLES
IN QUESTION WERE QUALIFIEDLY PRIVILEGED
COMMUNICATION; (2) IT WAS INCUMBENT UPON THE
PROSECUTION AND PRIVATE RESPONDENT TO PROVE THE
FACT OF "ACTUAL MALICE," WHICH BURDEN WAS NOT
DISCHARGED BY THE LATTER IN THESE CASES; AND (3) THERE
WAS NO "ACTUAL MALICE" IN THE SUBJECT ARTICLES, THEREBY
REQUIRING THE DISMISSAL OF THE COMPLAINT A QUO AND THE
ACQUITTAL OF PETITIONER BATUIGAS.
II.
WITH ALL DUE RESPECT, EVEN ASSUMING FOR THE SAKE OF
ARGUMENT THAT LIBEL WAS PRESENT IN THIS CASE, THE
COURT OF APPEALS AND THE RTC EGREGIOUSLY AND GRAVELY
ERRED IN THEIR DECISIONS IN AWARDING UNWARRANTED AND
EXCESSIVE MORAL AND EXEMPLARY DAMAGES AND
ATTORNEY'S FEES TO PRIVATE RESPONDENT VICTOR
DOMINGO, CONTRARY TO LAW AND JURISPRUDENCE.
ACCORDINGLY, THE AW ARD OF MORAL DAMAGES SHOULD
CONSIDERABLY BE REDUCED, AND THE A WARD OF EXEMPLARY
DAMAGES AND ATTORNEY'S FEES BE DELETED AND SET
ASIDE.56
THE RULING OF THE COURT
We grant the petition.
The petition under Rule 45 of the Rules of Court
35
Section 1, Rule 45 of the Rules of Court explicitly provides that a petition
for review on certiorari shall raise only questions of law, which must be
distinctly set forth.57 In a case,58 the Court reiterated its earlier rulings on
the distinction between a question of law from a question of fact, as
follows:
A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts. For a question to be
one oflaw, the same must not involve an examination of the probative
value of the evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law provides on the
given set of circumstances. Once it is clear that the issue invites a review
of the evidence presented, the question posed is one of fact. Thus, the
test of whether a question is one of law or of fact is not the appellation
given to such question by the party raising the same; rather, it is whether
the appellate court can determine the issue raised without reviewing or
evaluating the evidence, in which case, it is a question of law; otherwise
it is a question of fact.59
Under Rule 45, the Court is not required to examine and evaluate all
over again the evidence which had already been passed upon by the
lower courts. Findings of fact made by a trial court are accorded the
highest degree of respect by an appellate tribunal and, absent a clear
disregard of the evidence before it that can otherwise affect the results
of the case, those findings should not be ignored. 60 This becomes even
more significant when the factual findings of the lower court had been
sustained by the CA. Thus, the rule that factual findings of the trial court,
affirmed by the CA, are final and conclusive and may not be reviewed
on appeal.61 This is the rule in which Domingo finds refuge in opposing
the plea of Batuigas and the Manila Bulletin in their quest before the
Court to reverse the findings of the RTC and the CA. Domingo asserted
that the findings of the RTC had been rendered as conclusive upon this
Court because these had been adopted by the CA. 62
We must be reminded, however, that the general rule that the factual
findings of the lower courts are conclusive is not cast in stone since
accruing jurisprudence continuously reiterate the exceptions to the
limitation of an appeal by certiorari to only questions of law, viz: (1) when
the findings are grounded entirely on speculation, surmises, or
conjectures; (2) when the interference made is manifestly mistaken,
absurd, or impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when
the findings of fact are conflicting; (6) when in making its findings, the
CA went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent;
and (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record. 63
An evaluation of the records of these cases, however, prods the Court
to apply the fourth exception above instead of the general rule. As will
be discussed later, the RTC and the CA had misapprehended the facts
when these courts concluded that Batuigas was guilty of libel, and that
both he and the Manila Bulletin were liable for damages.
The criminal case of Libel
Under our law, criminal libel is defined as a public and malicious
imputation of a crime or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.64 For an imputation to be
libelous under Art. 353 of the Revised Penal Code (RPC), the following
requisites must be present: (a) it must be defamatory; (b) it must be
malicious; (c) it must be given publicity; and (d) the victim must be
identifiable.65
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.66 In determining whether a
statement is defamatory, the words used are to be construed in their
entirety and should be taken in their plain, natural, and ordinary meaning
as they would naturally be understood by persons reading them, unless
it appears that they were used and understood in another
sense.67 Moreover, a charge is sufficient if the words are calculated to
induce the hearers to suppose and understand that the person or
persons against whom they were uttered were guilty of certain offenses
or are sufficient to impeach the honesty, virtue or reputation or to hold
the person or persons up to public ridicule.68
Malice connotes ill will or spite and speaks not in response to duty but
merely to injure the reputation of the person defamed, and implies an
intention to do ulterior and unjustifiable harm. Malice is bad faith or bad
motive. It is the essence of the crime of libel.69
There is publication if the material is communicated to a third person. It
is not required that the person defamed has read or heard about the
libelous remark. What is material is that a third person has read or heard
the libelous statement, for "a man's reputation is the estimate in which
others hold him, not the good opinion which he has of himself."70 Simply
put, in libel, publication means making the defamatory matter, after it is
written, known to someone other than the person against whom it has
been written.71 "The reason for this is that [a] communication of the
defamatory matter to the person defamed cannot injure his reputation
though it may wound his selfe-steem. A man's reputation is not the good
opinion he has of himself, but the estimation in which others hold him."72
On the other hand, to satisfy the element of identifiability, it must be
shown that at least a third person or a stranger was able to identify him
as the object of the defamatory statement.73 It is enough if by intrinsic
reference the allusion is apparent or if the publication contains matters
of description or reference to facts and circumstances from which others
reading the article may know the person alluded to; or if the latter is
pointed out by extraneous circumstances so that those knowing such
person could and did understand that he was the person referred to.74
The element of publication is clearly not at issue in this case considering
that both articles of Batuigas were published in Tempo, a tabloid widely
circulated all over the country. As to the elements of identifiability,
defamatory allegation, and malice, the Court shall examine the two
articles with the following as its guidepost:
For the purpose of determining the meaning of any publication alleged
to be libelous "that construction must be adopted which will give to the
matter such a meaning as is natural and obvious in the plain and
ordinary sense in which the public would naturally understand what was
uttered. The published matter alleged to be libelous must be construed
as a whole. In applying these rules to the language of an alleged libel,
the court will disregard any subtle or ingenious explanation offered by
the publisher on being called to account. The whole question being the
effect the publication had upon the minds of the readers, and they not
having been assisted by the offered explanation in reading the article, it
comes too late to have the effect of removing the sting, if any there be,
from the word used in the publication.75
a) The 20 December 1990 article
The Court cannot sustain the findings of the R TC and the CA that this
article was libelous. Viewed in its entirety, the article withholds the
finding that it impeaches the virtue, credit, and reputation of Domingo.
The article was but a fair and true report by Batuigas based on the
documents received by him and thus exempts him from criminal liability
under Art. 354(2) of the RPC, viz:
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.
Noteworthy, the first sentence on the 20 December 1990 article76 warns
the successor of JoeCon of the brewing problem that he will inherit at
the DTI Region VIII office. The immediately following sentences relate
that in a letter to Batuigas, the Waray employees of Region VIII made
known their disgust on how DTI Region VIII was being run and handled.
According to the Waray employees, the complaints as to the
"mismanagement, low morale, improper decorum, gross inefficiency,
nepotism" in the office had already been made known to the DTI Makati
office, the CSC and the Ombudsman, only that "[w]ala raw nangyari sa
reklamo nila." The letter further provided that the Waray employees
turned instead to Batuigas knowing that his column produces results,
i.e., "Kaya kami lumapit sa inyo Gg. Batuigas dahil nagbibigay ng
resulta ang kolum ninyo."
As culled by Batuigas from the letter, the succeeding sentences in the
article merely enumerated the specifics of the complaints against
36
several employees and officials of the DTI Region VIII, among whom
was Domingo, that had been brought to the attention of DTI, CSC, and
the Office of the Ombudsman, from which the Waray employees claimed
nothing happened.1âwphi1
The article cannot be considered as defamatory because Batuigas had
not ascribed to Domingo the commission of a crime, the possession of
a vice or defect, or any act or omission9 condition, status or
circumstance which tends to dishonor or discredit the latter. The article
was merely a factual report which, to stress, were based on the letter of
the Waray employees reiterating their earlier complaints against
Domingo and other co-workers at the DTI Region VIII. "Where the words
imputed [are] not defamatory in character, a libel charge will not
prosper.1âwphi1 Malice is necessarily rendered immaterial."77
Parenthetically, it was through the evidence, consisting of public
documents,78 presented by Domingo during the hearing of these cases
that it was confirmed that there were indeed complaints filed against him
and the other DTI officials before the CSC and the Office of the
Ombudsman relative to "mismanagement, low morale, improper
decorum, gross inefficiency, nepotism." Although, based on these
pieces of evidence, the complaints against Domingo had already been
dismissed by the CSC and the Office of the Ombudsman, the fact
remains that there were actual complaints against him, among others,
the particulars of which were those plainly enumerated in the article.
True, it was embarrassing that these complaints were disclosed to the
public; but equally factual was that these were matters clearly supported
by public records.
The CA, however. moored on these statements its resolution that the 20
December 1990 article was libelous, viz:
These national employees should be commended for bringing into the
open this garbage that has piled [up] in their own backyard.
To JoeCon's successor, the chopping board is ready.
All you need is a Muslim kris!
Palakulin mo, Pare ko! 79
The CA held that because of the comments or remarks made by
Batuigas, the article would not fall under the exceptions of Art. 354 of
the RPC. The CA ruled that the test of the defamatory character was
whether or not the words were calculated to induce suspicion, a manner
more effective to destroy reputation than false charges directly made,
and that the meaning of the writer was even immaterial.80
A plain reading of the statements found by the CA as libelous cannot
support a ruling that these were disparaging to Domingo or calculated to
induce suspicion upon his person. In the statement "[t]hese national
employees should be commended for bringing into the open this
garbage that has piled [up] in their own backyard," Batuigas was merely
commending the DTI employees who brought into the open their
complaints which had already been made known to the CSC and the
Office of the Ombudsman. It was a fair remark directed to the DTI
employees and made no reference to Domingo or imputed to him any
defamatory allegation.
On the last three sentences, Batuigas explained that this was only a
figure of speech.81 The statements were obviously addressed to the new
DTI Secretary suggesting that he use a chopping board and a
Muslim kris to solve the mounting problems at the DTI office. A plain,
natural, and ordinary appreciation of the statements fails to validate the
finding that these ascribed something deprecating against Domingo.
The sentences merely meant that heads should roll at the DTI office but
palpably absent were the identities of those persons. Corollary thereto,
the article could not have qualified as libelous because it is the well-
entrenched rule that statements are not libelous unless they refer to an
ascertained or ascertainable person.82
b) The 4 January 1991 article
The CA ruled that this article contained statements not lifted from
another source, as is true in the 20 December 1990 column, but were
the words of Batuigas. According to the CA, the tenor of the article
showed that Batuigas had already formed his conclusions that Domingo
had committed "shenanigans" in his office and that
Domingo's "kalokohan" were supported by voluminous documents but
which were never presented during the hearing of the
cases.83 Apparently, it was because of the
words "shenanigans" and "kalokohan" that the CA found the article
libelous.
It must be noted that Batuigas qualified
as "alleged' the "shenanigans" of Domingo as referred to in the 20
December 1990 column. By stating that what he had exposed
were "alleged shenanigans," Batuigas unmistakably did not confirm the
truth as to the specifics of the complaints made against Domingo or form
a conclusion that Domingo had actually committed mischiefs or
misbehaved in office. Batuigas was merely relying on the documents
furnished him by the employees of DTI Region VIII thus, his mention that
these were "alleged shenanigans." On the other hand,
the "kalokohan" unmistakably had reference to the "alleged
shenanigans" mentioned in the early part of the article considering that
both alluded to the exposes in the December column. It is for this reason
that a finding that the "kalokohan" was a conclusion of Batuigas, as with
the "alleged shenanigans," cannot be sustained.
However, when Batuigas made statements referring to the "lousy
performance" of Domingo and his "mismanagement" resulting in the
breakdown of morale of the DTI Region VIII employees, the former was
actually impeaching the virtue and reputation of Domingo as DTI
Regional Director. At that instance, Batuigas was relaying to his readers
his comments about Domingo.
In contrast to the 20 December 1990 article where the statement as to
the "mismanagement, low morale, improper decorum, gross inefficiency,
nepotism, etc." were merely lifted by Batuigas from the letter of the DTI
Region VIII employees, the allegation in the 4 January 1991 article as to
the "lousy performance" and "mismanagement" of Domingo amounts to
Batuigas' personal remarks about the Regional Director.
Notwithstanding the defamatory imputation in the 4 January 1991 article
of Batuigas, Art. 354 of the RPC provides for the instances when its
author can be exempted from criminal liability. Evaluated against the
exceptions enumerated in Art. 354 of the RPC, it is beyond doubt that
the statements of Batuigas as to the "lousy performance" and
"mismanagement" of Domingo cannot be considered as either private
communication or a report without any comments or remarks. The Court
hastens to add, however, that the exceptions in Art. 354 of the RPC are
not exclusive since jurisprudence provides for the additional exceptions
to the privileged communications, viz: in Borja! v. Court of
Appeals,84 where it was held that in view of the constitutional right on the
freedoms of speech and of the press, fair commentaries on matters of
public interest are privileged; and in Guingguing v. Court of
Appeals,85 where the remarks directed against a public figure were ruled
as privileged.86
A privileged communication may be classified as either absolutely
privileged or qualifiedly privileged.87 The absolutely privileged
communications are those which are not actionable even if the author
has acted in bad faith. This classification includes statements made by
members of Congress in the discharge of their functions as such, official
communications made by public officers in the performance of their
duties, and allegations or statements made by the parties or their
counsel in their pleadings or motions or during the hearing of judicial
proceedings, as well as the answers given by witnesses in reply to
questions propounded to them, in the course of said proceedings,
provided that said allegations or statements are relevant to the issues,
and the answers are responsive or pertinent to the questions
propounded to said witnesses.88
The qualifiedly privileged communications are those which contain
defamatory imputations but which are not actionable unless found to
have been made without good intention or justifiable motive, and to
which "private communications" and "fair and true report without any
comments or remarks" belong.89 Since the qualifiedly privileged
communications are the exceptions to the general rule, these require
proof of actual malice in order that a defamatory imputation may be held
actionable.90 But when malice in fact is proven, assertions and proofs
that the libelous articles are qualifiedly privileged communications are
futile, since being qualifiedly privileged communications merely prevents
the presumption of malice from attaching to a defamatory imputation.91
The conduct, moral fitness, and ability of a public official to discharge his
duties are undoubtedly matters of public interest for he is, after all, legally
required to be at all times accountable to the people and is expected to
discharge his duties with utmost responsibility, integrity, competence,
and loyalty; and to act with patriotism and justice, lead modest lives, and
uphold public interest over personal interest.92 Indeed, as early as 1918,
the Court had already laid down a legal teaching93 recognizing the right
to criticize the action and conduct of a public official, viz:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience. A public
37
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. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must expected
criticism be born[e] for the common good. Rising superior to any official
or set of officials, to the Chief Executive, to the Legislature, to the
Judiciary-to any or all the agencies of Government-public opinion should
be the constant source of liberty and democracy.
It is for this reason that, when confronted with libel cases involving
publications which deal with public officials and the discharge of their
official functions, this Court is not confined within the wordings of the
libel statute; rather, the case should likewise be examined under the
constitutional precept of freedom of the press.94 But if the utterances are
false, malicious, or unrelated to a public officer's performance of his
duties or irrelevant to matters of public interest involving public figures,
the same may give rise to criminal and civil liability. 95 In contrast, where
the subject of the libelous article is a private individual, malice need not
be proved by the plaintiff. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed
statement.96
The statements on the "lousy performance" and "mismanagement" of
Domingo are matters of public interest as these relate to his moral
conduct, his capacity to lead the DTI Region VIII employees, and to
manage and supervise the affairs of the office. These statements
undoubtedly make it to the grade of qualifiedly privileged communication
and thus, would require actual malice to be actionable. It must be
stressed, however, that once it is established that the article is of a
privileged character, the onus of proving actual malice rests on the
plaintiff who must then convince the court that the offender was
prompted by malice or ill will.97
In Disini v. The Secretary of Justice,98 the Court explained "actual
malice" as follows:
There is "actual malice" or malice in fact 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. 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.99 (citations omitted)
Records cannot sustain a finding that Domingo was able to establish
that Batuigas had actual malice in writing this article. Batuigas testified
that sometime in the latter part of 1990 and until 1991, he received letters
of complaint denouncing Domingo.100 Although Batuigas was not able to
present these letters during the hearing of these cases it can be
rationally deduced that he was in actual receipt of the complaints against
the DTI Region VIII officials and employees because he was able to cite
the specifics of the grievances of the Waray employees in his 20
December 1990 article. Presumably, too, the letters that Batuigas
received were those complaints that had been dismissed by the CSC
and the Office of the Ombudsman, and with the corresponding
resolutions evidencing the dismissal of these complaints having been
presented by Domingo during the hearing of the cases.
It was evident that the statements as to the "lousy performance" and
"mismanagement" of Domingo cannot be regarded to have been written
with the knowledge that these were false or in reckless disregard of
whether these were false, bearing in mind that Batuigas had
documentary evidence to support his statements. Batuigas merely
expressed his opinion based on the fact that there were complaints filed
against Domingo, among others. 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.101
Moreover, these statements were but fair commentaries of Batuigas
which can be reasonably inferred from the contents of the documents
that he had received and which he qualified, in his 20 December 1990
article, to have been brought already to the attention of the DTI, CSC,
and the Ombudsman. Jurisprudence defines fair comment as follows:
To reiterate, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or slander.
The doctrine of fair comment 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.102 (emphasis omitted)
True, the complaints had already been dismissed by the government
offices tasked to resolve these, and of which fact Batuigas had not been
informed when he wrote the 20 December 1990 and 4 January 1991
articles; but it must be pointed out that even assuming that the contents
of the articles were false, mere error, inaccuracy or even falsity alone
does not prove actual malice.103
In order to constitute malice, ill will must be personal. 104 Domingo
testified that he did not personally know Batuigas or had met him
before.105 When Domingo was asked as to the motive of Batuigas in
writing the articles putting his (Domingo's) name in a bad light, he
explained that the employees he had dismissed during the
reorganization could have caused the writing of the articles. Domingo
further stated that, likewise, he suspected a group of loggers in the
region he had been very vocal against for the past ten years.106
When cross-examined, Domingo reiterated his earlier testimony that he
had no dealings with Batuigas, or had not personally met or spoken with
him. When further probed, Domingo said that Batuigas could have been
(used as) a tool by people who were interested in going after his neck
because he had stepped on them in the discharge of his duties. When
asked to confirm whether Batuigas had a personal grudge against him,
Domingo said: "I do not think he harbors ill will against me."107
The absence of personal ill will of Batuigas against Domingo disavows
actual malice and buttresses the finding that Batuigas was prompted by
a legitimate or plausible motive in writing the articles. It was pointed out
that Batuigas characterized his writing akin to an expose where he
revealed anomalies and shenanigans in the government in the hope that
corruption might be minimized.108 Moreover, Batuigas had no reason to
doubt that R. de Paz, the sender of the letter containing the complaints
against Domingo, did not exist considering that the letter was signed by
one claiming to be R. de Paz.109
Art. 354 of the RPC provides that good intention and justifiable motives
are defenses for a defamatory imputation even if it be true. Batuigas was
able to firmly establish his defenses of good faith and good motive when
he testified that, after he received several letters of complaint against
Domingo, he came up with the said columns because he found the
complaints on the shenanigans by Domingo at the DTI to be of public
interest.110 Batuigas' defense was reinforced by the records bereft of any
showing that the prosecution offered evidence to support a conclusion
that Batuigas had written the articles with the sole purpose of injuring
the reputation of Domingo.
In his 16 January 1991 article111 titled "The other side of DTI 8 issue,"
Batuigas acknowledged that he might have been used by the detractors
of Domingo due to their failure to establish a prima facie case against
the Regional Director. In the same article, Batuigas quoted portions of
the separate letters sent to him by Zaldy Lim and Lions International
Deputy Vice-Governor Prudencio J. Gesta, who both denied the
allegations against Domingo. Additionally, Batuigas had written the 16
January 1991 article before Domingo could file criminal and civil cases
against him and the Manila Bulletin. These truths evidently refuted
malice or ill will by Batuigas against Domingo.
The CA found fault in the failure of Batuigas to check his sources despite
the 21 December 2000112 letter of Domingo denouncing the accusations
against him, and the 4 January 1991 letter of Chairman Sto. Tomas
absolving Domingo of these accusations. Further to this, the CA ruled
that Domingo was not accorded the fair and equal opportunity to have
these letters published in order to balance the issue.113
Domingo admitted that he had drafted a letter114 to Batuigas protesting
the inaccuracies in the 20 December 1990 article. Unfortunately,
Domingo eventually changed his mind and did not send his letter to
Batuigas115 as this could have informed Batuigas that the charges
against him (Domingo) had already been dismissed by the CSC and the
Office of the Ombudsman; thus, not having known of the dismissal of
the complaints against Domingo, Batuigas could not have mentioned it
in his 4 January 1991 article. In the same vein, it was implausible that
the letter116 of Chaiman Sto. Tomas could have been included in the 4
January 1991 Bull's Eye article since the letter was dated only 8 January
1991. Additionally, there was nothing from the records that would prove
when Batuigas had received the letter of Chairman Sto. Tomas.
Notwithstanding the absence of this proof, Batuigas unmistakably
38
acknowledged the dismissal of the charges against Domingo, the main
topic of Chairman Sto. Tomas' letter, when he stated in his 16 January
1991 article: "It is indeed unfortunate that we published the charges
against him six weeks after he was cleared by the Civil Service
Commission of the same charges."117
The failure of Batuigas to counter-check the status of the complaints
against Domingo was indeed unfortunate, but such failure cannot be
considered as enough reason to hold him liable. While substantiation of
the facts supplied is an important reporting standard, still, a reporter may
rely on information given by a lone source although it reflects only one
side of the story provided the reporter does not entertain a high degree
of awareness of its probable falsity.118 Domingo, who had the burden of
proving actual malice, was not able to present proof that Batuigas had
entertained awareness as to the probable falsehood of the complaints
against him (Domingo). Indeed, on the basis of the documents in
Batuigas' possession, which were actually complaints against Domingo,
Batuigas wrote his comments on Domingo's "lousy performance" and
"mismanagement." The Court thus finds it significant to restate its legal
teaching in Vasquez v. Court of Appeals,119 viz:
A rule placing on the accused the burden of showing the truth of
allegations of official misconduct and/or good motives and justifiable
ends for making such allegations would not only be contrary to Art. 361
of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would
deter citizens from performing their duties as members of a self-
governing community. Without free speech and assembly, discussions
of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, "public discussion is a political duty" and "the greatest
menace to freedom is an inert people."120
For sure, the words "lousy performance" and "mismanagement" had
caused hurt or embarrassment to Domingo and even to his family and
friends, but it must be emphasized that hurt or embarrassment even if
real, is not automatically equivalent to defamation; 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 bases for an action for
defamation in the absence of an allegation for special damages. 121 If a
writer in the course of temperate and legitimate criticism falls into error
as to some detail, or draws an incorrect inference from the facts before
him, and thus goes beyond the limits of strict truth, such inaccuracies
will not cause judgment to go against him, if the jury are satisfied, after
reading the whole publication, that it was written honestly, fairly, and with
regard to what truth and justice require.122 Domingo must remember that
one of the costs associated with participation in public affairs is an
attendant loss of privacy.123
It may be well for us to keep in mind that the rule on privileged
communications in defamation cases developed because "public policy,
the welfare of society and the orderly administration of justice" have
demanded protection for public opinion.124 "While the doctrine of
privileged communication can be abused, and its abuse can lead to
great hardships, to allow libel suits to prosper strictly on this account will
give rise to even greater hardships. The doctrine itself rests on public
policy which looks to the free and unfettered administration of justice. It
is as a rule applied liberally."125 Equally important is the following
pronouncement which this Court had consistently reiterated, to wit:
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 (sic) 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.126
The civil case for Damages
The Court finds that there can be no civil liability in Civil Case No. 91-
02-23 because no libel was committed. The 20 December 1990 article
was not libelous because it was only a fair and true report by Batuigas
using the documents received by him thus relieving him of criminal
liability pursuant to Art. 354 (2) of the RPC. On the one hand, the
privileged nature of the 16 January1991 article and the failure of
Domingo to discharge his burden of proving actual malice on the part of
Batuigas failed to support a finding that there was libel. Clearly, there
was no act that exists from which the civil liability may arise. 127
WHEREFORE, premises considered, the 30 March 2005 decision and
25 October 2005 resolution of the Court of Appeals, Eighteenth Division
in CA-G.R. CR. No. 19089 are hereby REVERSED and SET
ASIDE. Petitioner Ruther Batuigas is ACQUITTED of the charge against
him in Criminal Case No. 91-03-159 while the complaint for damages in
Civil Case No. 91-02-23 is dismissed.
SO ORDERED.
CASE 7
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.
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
39
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
40
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,
41
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.
42
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.
43
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?
44
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)
45
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. Mutuc 88 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
46
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.
47
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
48
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.1avvphi1 The second test mandates adequate guidelines or limitations
in the law to determine the boundaries of the 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.1âwphi1
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.
CASE 8
G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-
Intervenor.
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests approach
which is a 'fundamental postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in the
incessant conflicts between rights and regulations, liberties and
limitations, and competing demands of the different segments of society.
Here, we are confronted with the need to strike a workable and viable
equilibrium between a constitutional mandate to maintain free, orderly,
honest, peaceful and credible elections, together with the aim of
ensuring equal opportunity, time and space, and the right to reply,
including reasonable, equal rates therefor, for public information
campaigns and forums among candidates,2 on one hand, and the
imperatives of a republican and democratic state,3 together with its
guaranteed rights of suffrage,4 freedom of speech and of the press,5 and
the people's right to information,6 on the other.
49
In a nutshell, the present petitions may be seen as in search of the
answer to the question - how does the Charter of a republican and
democratic State achieve a viable and acceptable balance between
liberty, without which, government becomes an unbearable tyrant, and
authority, without which, society becomes an intolerable and dangerous
arrangement?
Assailed in these petitions are certain regulations promulgated by the
Commission on Elections (COMELEC) relative to the conduct of the
2013 national and local elections dealing with political advertisements.
Specifically, the petitions question the constitutionality of the limitations
placed on aggregate airtime allowed to candidates and political parties,
as well as the requirements incident thereto, such as the need to report
the same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged
unconstitutionality of Section 9 (a) of COMELEC Resolution No. 9615
(Resolution) limiting the broadcast and radio advertisements of
candidates and political parties for national election positions to an
aggregate total of one hundred twenty (120) minutes and one hundred
eighty (180) minutes, respectively. They contend that such restrictive
regulation on allowable broadcast time violates freedom of the press,
impairs the people's right to suffrage as well as their right to information
relative to the exercise of their right to choose who to elect during the
forth coming elections.
The heart of the controversy revolves upon the proper interpretation of
the limitation on the number of minutes that candidates may use for
television and radio advertisements, as provided in Section 6 of Republic
Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act.
Pertinent portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties
and bona fide candidates shall have equal access to media time and
space. The following guidelines may be amplified on by the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one hundred
twenty (120) minutes of television advertisement and one hundred
eighty (180) minutes of radio advertisement whether by purchase or
donation.
b. Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty ( 60) minutes of
television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or
entity to submit to the COMELEC a copy of its broadcast logs and
certificates of performance for the review and verification of the
frequency, date, time and duration of advertisements broadcast for any
candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010,
COMELEC issued Resolutions implementing and interpreting Section 6
of R.A. No. 9006, regarding airtime limitations, to mean that a candidate
is entitled to the aforestated number of minutes "per station." 7 For the
May 2013 elections, however, respondent COMELEC promulgated
Resolution No. 9615 dated January 15, 2013, changing the
interpretation of said candidates' and political parties' airtime limitation
for political campaigns or advertisements from a "per station" basis, to a
"total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development
Corporation (ABC), GMA Network, Incorporated ( GMA), Manila
Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network,
Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are
owners/operators of radio and television networks in the Philippines,
while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the
national organization of broadcasting companies in the Philippines
representing operators of radio and television stations and said stations
themselves. They sent their respective letters to the COMELEC
questioning the provisions of the aforementioned Resolution, thus, the
COMELEC held public hearings. Thereafter, on February 1, 2013,
respondent issued Resolution No. 9631 amending provisions of
Resolution No. 9615. Nevertheless, petitioners still found the provisions
objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or
revocation of an offender's franchise or permit, imposes criminal liability
against broadcasting entities and their officers in the event they sell
airtime in excess of the size, duration, or frequency authorized in the
new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime instead
of the previous "per station" airtime for political campaigns or
dvertisements, and also required prior COMELEC approval for
candidates' television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which
defines the term "political advertisement" or "election propaganda,"
while petitioner GMA further assails Section 35, 12 which states that any
violation of said Rules shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-
Intervenor) filed a Motion for Leave to Intervene and to File and Admit
the Petition-in-Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor also assails
Section 9 (a) of the Resolution changing the interpretation of candidates'
and political parties' airtime limitation for political campaigns or
advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners allege that Resolutions No. 9615 and 9631, amending the
earlier Resolution, are unconstitutional and issued without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction,
for the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides
for a very restrictive aggregate airtime limit and a vague meaning for a
proper computation of "aggregate total" airtime, and violates the equal
protection guarantee, thereby defeating the intent and purpose of R.A.
No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice
requirement, is vague and infringes on the constitutionally protected
freedom of speech, of the press and of expression, and on the right of
people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an
unreasonable and almost impossible burden on broadcast mass media
of monitoring a candidate's or political party's aggregate airtime,
otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully
criminalizing acts not prohibited and penalized as criminal offenses by
R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political
party's "right to reply," is likewise assailed to be unconstitutional for
being an improper exercise of the COMELEC's regulatory powers; for
constituting prior restraint and infringing petitioners' freedom of
expression, speech and the press; and for being violative of the equal
protection guarantee. In addition to the foregoing, petitioner GMA further
argues that the Resolution was promulgated without public
consultations, in violation of petitioners' right to due process. Petitioner
ABC also avers that the Resolution's definition of the terms "political
advertisement" and "election propaganda" suffers from overbreadth,
thereby producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and
Opposition13 dated March 8, 2013, that the petition should be denied
based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition are
not available to petitioners, because the writ of certiorari is only available
against the COMELEC's adjudicatory or quasi-judicial powers, while the
writ of prohibition only lies against the exercise of judicial, quasijudicial
or ministerial functions. Said writs do not lie against the COMELEC's
administrative or rule-making powers.
Respondent likewise alleges that petitioners do not have locus standi,
as the constitutional rights and freedoms they enumerate are not
personal to them, rather, they belong to candidates, political parties and
the Filipino electorate in general, as the limitations are imposed on
candidates, not on media outlets. It argues that petitioners' alleged risk
of exposure to criminal liability is insufficient to give them legal standing
as said "fear of injury" is highly speculative and contingent on a future
act.
Respondent then parries petitioners' attack on the alleged infirmities of
the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate
airtime limit is in accordance with R.A. No. 9006 as this would truly give
life to the constitutional objective to equalize access to media during
elections. It sees this as a more effective way of levelling the playing
field between candidates/political parties with enormous resources and
those without much. Moreover, the COMELEC's issuance of the
assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the power to supervise and
50
regulate, during election periods, transportation and other public utilities,
as well as mass media, to wit:
Sec. 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, and 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.
This being the case, then the Resolutions cannot be said to have been
issued with grave abuse of discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the
assailed Resolutions have given clear and adequate mechanisms to
protect broadcast stations from potential liability arising from a
candidate's or party's violation of airtime limits by putting in the proviso
that the station "may require buyer to warrant under oath that such
purchase [of airtime] is not in excess of size, duration or frequency
authorized by law or these rules." Furthermore, words should be
understood in the sense that they have in common usage, and should
be given their ordinary meaning. Thus, in the provision for the right to
reply, "charges" against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice
to the COMELEC for appearances or guestings of candidates in bona
fide news broadcasts. It points out that the fact that notice may be given
24 hours after first broadcast only proves that the mechanism is for
monitoring purposes only, not for censorship. Further, respondent
argues, that for there to be prior restraint, official governmental
restrictions on the press or other forms of expression must be done in
advance of actual publication or dissemination. Moreover, petitioners
are only required to inform the COMELEC of candidates'/parties'
guestings, but there is no regulation as to the content of the news or the
expressions in news interviews or news documentaries. Respondent
then emphasized that the Supreme Court has held that freedom of
speech and the press may be limited in light of the duty of the COMELEC
to ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not
consider it as restrictive of the airing of bona fide news broadcasts. More
importantly, it stressed, the right to reply is enshrined in the Constitution,
and the assailed Resolutions provide that said right can only be had after
going through administrative due process. The provision was also
merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is
actually attacking the constitutionality of R.A. No. 9006, which cannot be
done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the
Resolutions' definition of "political advertisement" or "election
propaganda" suffers from overbreadth, as the extent or scope of what
falls under said terms is clearly stated in Section 1 (4) of Resolution No.
9615.
It is also respondent's view that the nationwide aggregate total airtime
does not violate the equal protection clause, because it does not make
any substantial distinctions between national and regional and/or local
broadcast stations, and even without the aggregate total airtime rule,
candidates and parties are likely to be more inclined to advertise in
national broadcast stations. Respondent likewise sees no merit in
petitioners' claim that the Resolutions amount to taking of private
property without just compensation. Respondent emphasizes that radio
and television broadcasting companies do not own the airwaves and
frequencies through which they transmit broadcast signals; they are
merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with
some form of public service, in this case, to provide candidates with the
opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement
does not apply to constitutional commissions such as the COMELEC,
pursuant to Section 1, Chapter I, Book VII of the Administrative Code of
1987. Indeed, Section 9, Chapter II, Book VII of said Code provides,
thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an
agency shall, as far as practicable, publish or circulate notices of
proposed rules and afford interested parties the opportunity to submit
their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. -This Book shall be applicable to all agencies as
defined in the next succeeding section, except the Congress, the
Judiciary, the Constitutional Commissions, military establishments in all
matters relating exclusively to Armed Forces personnel, the Board of
Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent still
conducted a meeting with representatives of the KBP and various media
outfits on December 26, 2012, almost a month before the issuance of
Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the
following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to
question the herein assailed Resolutions, which should be considered
as a "decision, order or ruling of the Commission" as mentioned in
Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise
provided by law, or by any specific provisions in these Rules, any
decision, order or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty (30) days
from its promulgation.
GMA further stressed that this case involves national interest, and the
urgency of the matter justifies its resort to the remedy of a petition for
certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper
remedy is a petition for declaratory relief because such action only asks
the court to make a proper interpretation of the rights of parties under a
statute or regulation. Such a petition does not nullify the assailed statute
or regulation, or grant injunctive relief, which petitioners are praying for
in their petition. Thus, GMA maintains that a petition for certiorari is the
proper remedy.
GMA further denies that it is making a collateral attack on the Fair
Election Act, as it is not attacking said law. GMA points out that it has
stated in its petition that the law in fact allows the sale or donation of
airtime for political advertisements and does not impose criminal liability
against radio and television stations. What it is assailing is the
COMELEC's erroneous interpretation of the law's provisions by
declaring such sale and/or donation of airtime unlawful, which is contrary
to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit
because:
x x x First, it has personally suffered a threatened injury in the form of
risk of criminal liability because of the alleged unconstitutional and
unlawful conduct of respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the injury is traceable to the
challenged action of respondent COMELEC, that is, the issuance of the
assailed Resolutions. Third, the injury is likely to be redressed by the
remedy sought in petitioner GMA's Petition, among others, for the
Honorable Court to nullify the challenged pertinent provisions of the
assailed Resolutions.15
On substantive issues, GMA first argues that the questioned Resolutions
are contrary to the objective and purpose of the Fair Election Act. It
points out that the Fair Election Act even repealed the political ad ban
found in the earlier law, R.A. No. 6646. The Fair Election Act also speaks
of "equal opportunity" and "equal access,'' but said law never mentioned
equalizing the economic station of the rich and the poor, as a declared
policy. Furthermore, in its opinion, the supposed correlation between
candidates' expenditures for TV ads and actually winning the elections,
is a mere illusion, as there are other various factors responsible for a
candidate's winning the election. GMA then cites portions of the
deliberations of the Bicameral Conference Committee on the bills that
led to the enactment of the Fair Election Act, and alleges that this shows
the legislative intent that airtime allocation should be on a "per station"
basis. Thus, GMA claims it was arbitrary and a grave abuse of discretion
for the COMELEC to issue the present Resolutions imposing airtime
limitations on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an
unconstitutional burden on them, because their failure to strictly monitor
the duration of total airtime that each candidate has purchased even
from other stations would expose their officials to criminal liability and
risk losing the station's good reputation and goodwill, as well as its
franchise. It argues that the wordings of the Resolutions belie the
COMELEC's claim that petitioners would only incur liability if they
51
"knowingly" sell airtime beyond the limits imposed by the Resolutions,
because the element of knowledge is clearly absent from the provisions
thereof. This makes the provisions have the nature of malum prohibitum.
Next, GMA also says that the application of the aggregate airtime limit
constitutes prior restraint and is unconstitutional, opining that "[t]he
reviewing power of respondent COMELEC and its sole judgment of a
news event as a political advertisement are so pervasive under the
assailed Resolutions, and provoke the distastes or chilling effect of prior
restraint"16 as even a legitimate exercise of a constitutional right might
expose it to legal sanction. Thus, the governmental interest of leveling
the playing field between rich and poor candidates cannot justify the
restriction on the freedoms of expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites Section 82
of the Omnibus Election Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful election propaganda
shall include:
xxxx
All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and
hearing where all the interested parties were given an equal opportunity
to be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation
for at least twice within one week after the authorization has been
granted.
There having been no prior public consultation held, GMA contends that
the COMELEC is guilty of depriving petitioners of its right to due process
of law.
GMA then concludes that it is also entitled to a temporary restraining
order, because the implementation of the Resolutions in question will
cause grave and irreparable damage to it by disrupting and
emasculating its mandate to provide television and radio services to the
public, and by exposing it to the risk of incurring criminal and
administrative liability by requiring it to perform the impossible task of
surveillance and monitoring, or the broadcasts of other radio and
television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the
Solicitor General (OSG), filed a Supplemental Comment and
Opposition17 where it further expounded on the legislative intent behind
the Fair Election Act, also quoting portions of the deliberations of the
Bicameral Conference Committee, allegedly adopting the Senate Bill
version setting the computation of airtime limits on a per candidate, not
per station, basis. Thus, as enacted into law, the wordings of Section 6
of the Fair Election Act shows that the airtime limit is imposed on a per
candidate basis, rather than on a per station basis. Furthermore, the
COMELEC states that petitioner intervenor Senator Cayetano is wrong
in arguing that there should be empirical data to support the need to
change the computation of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates the COMELEC to
support its Resolutions with empirical data, as said airtime limit was a
policy decision dictated by the legislature itself, which had the necessary
empirical and other data upon which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the
Constitution empowers it to recommend to Congress effective measures
to minimize election spending and in furtherance of such constitutional
power, the COMELEC issued the questioned Resolutions, in faithful
implementation of the legislative intent and objectives of the Fair
Election Act.
The COMELEC also dismisses Senator Cayetano's fears that
unauthorized or inadvertent inclusion of his name, initial, image, brand,
logo, insignia and/or symbol in tandem advertisements will be charged
against his airtime limits by pointing out that what will be counted against
a candidate's airtime and expenditures are those advertisements that
have been paid for or donated to them to which the candidate has given
consent.
With regard to the attack that the total aggregate airtime limit constitutes
prior restraint or undue abridgement of the freedom of speech and
expression, the COMELEC counters that "the Resolutions enjoy
constitutional and congressional imprimatur. It is the Constitution itself
that imposes the restriction on the freedoms of speech and expression,
during election period, to promote an important and significant
governmental interest, which is to equalize, as far as practicable, the
situation of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no impairment of
the people's right to information on matters of public concern, because
in this case, the COMELEC is not withholding access to any public
record.
On April 16, 2013, this Court issued a Temporary Restraining
Order20 (TRO) in view of the urgency involved and to prevent irreparable
injury that may be caused to the petitioners if respondent COMELEC is
not enjoined from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary
Restraining Order and Motion for Early Resolution of the Consolidated
Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC followed
suit and filed its own Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and
Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent
delved on points which were not previously discussed in its earlier
Comment and Supplemental Comment, particularly those raised in the
petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to
question the Constitutionality of the assailed Resolutions and that
petitioners ABS-CBN and KBP have no locus standi to file the present
petition.
Respondent posits that contrary to the contention of petitioners, the
legislative history of R.A. No. 9006 conclusively shows that congress
intended the airtime limits to be computed on a "per candidate" and not
on a "per station" basis. In addition, the legal duty of monitoring lies with
the COMELEC. Broadcast stations are merely required to submit certain
documents to aid the COMELEC in ensuring that candidates are not sold
airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement
is a mechanism designed to inform the COMELEC of the appearances
or guesting of candidates in bona fide news broadcasts. It is for
monitoring purposes only, not censorship. It does not control the subject
matter of news broadcasts in anyway. Neither does it prevent media
outlets from covering candidates in news interviews, news events, and
news documentaries, nor prevent the candidates from appearing
thereon.
As for the right to reply, respondent insists that the right to reply provision
cannot be considered a prior restraint on the freedoms of expression,
speech and the press, as it does not in any way restrict the airing of bona
fide new broadcasts. Media entities are free to report any news event,
even if it should turn out to be unfavourable to a candidate or party. The
assailed Resolutions merely give the candidate or party the right to reply
to such charges published or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of
suspension and revocation of franchise or permit for the sale or donation
of airtime beyond the allowable limits is sanctioned by the Omnibus
Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the
Court issued a Resolution25 consolidating the case with the rest of the
petitions and requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment
and Opposition.26 Therein, respondent stated that the petition filed by
RMN repeats the issues that were raised in the previous petitions.
Respondent, likewise, reiterated its arguments that certiorari in not the
proper remedy to question the assailed resolutions and that RMN has
no locus standi to file the present petition. Respondent maintains that
the arguments raised by RMN, like those raised by the other petitioners
are without merit and that RMN is not entitled to the injunctive relief
sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are
Resolutions promulgated by the COMELEC relative to the conduct of the
2013 national and local elections, nevertheless the issues raised by the
petitioners have not been rendered moot and academic by the
conclusion of the 2013 elections. Considering that the matters elevated
to the Court for resolution are susceptible to repetition in the conduct of
future electoral exercises, these issues will be resolved in the present
action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when
issues of substantial and transcendental importance are presented
before the Court. So the Court does again in this particular case.
Proper Remedy
52
Respondent claims that certiorari and prohibition are not the proper right to liberty of their clients. We can see that based on the allegations
remedies that petitioners have taken to question the assailed in the petition, the Ordinance suffers from overbreadth.
Resolutions of the COMELEC. Technically, respondent may have a We thus recognize that the petitioners have a right to assert the
point. However, considering the very important and pivotal issues raised, constitutional rights of their clients to patronize their establishments for
and the limited time, such technicality should not deter the Court from a "wash-rate" time frame.31
having to make the final and definitive pronouncement that everyone If in regard to commercial undertakings, the owners may have the right
else depends for enlightenment and guidance. "[T]his Court has in the to assert a constitutional right of their clients, with more reason should
past seen fit to step in and resolve petitions despite their being the establishments which publish and broadcast have the standing to assert
subject of an improper remedy, in view of the public importance of the the constitutional freedom of speech of candidates and of the right to
tile issues raised therein.27 information of the public, not to speak of their own freedom of the press.
It has been in the past, we do so again. So, we uphold the standing of petitioners on that basis.
Locus Standi SUBSTANTIVE ASPECTS
Every time a constitutional issue is brought before the Court, the issue Aggregate Time Limits
of locus standi is raised to question the personality of the parties invoking COMELEC Resolution No. 9615 introduced a radical departure from the
the Court's jurisdiction. The Court has routinely made reference to a previous COMELEC resolutions relative to the airtime limitations on
liberalized stance when it comes to petitions raising issues of political advertisements. This essentially consists in computing the
transcendental importance to the country. Invariably, after some airtime on an aggregate basis involving all the media of broadcast
discussions, the Court would eventually grant standing.28 communications compared to the past where it was done on a per
In this particular case, respondent also questions the standing of the station basis. Thus, it becomes immediately obvious that there was
petitioners. We rule for the petitioners. For petitioner-intervenor Senator effected a drastic reduction of the allowable minutes within which
Cayetano, he undoubtedly has standing since he is a candidate whose candidates and political parties would be able to campaign through the
ability to reach out to the electorate is impacted by the assailed air. The question is accordingly whether this is within the power of the
Resolutions. COMELEC to do or not. The Court holds that it is not within the power
For the broadcast companies, they similarly have the standing in view of of the COMELEC to do so.
the direct injury they may suffer relative to their ability to carry out their a. Past elections and airtime limits
tasks of disseminating information because of the burdens imposed on The authority of the COMELEC to impose airtime limits directly flows
them. Nevertheless, even in regard to the broadcast companies invoking from the Fair Election Act (R.A. No. 9006 [2001])32 - one hundred (120)
the injury that may be caused to their customers or the public - those minutes of television advertisement and one-hundred· eighty (180)
who buy advertisements and the people who rely on their broadcasts - minutes for radio advertisement. For the 2004 elections, the respondent
what the Court said in White Light Corporation v. City of Manila 29 may COMELEC promulgated Resolution No. 652033 implementing the
dispose of the question. In that case, there was an issue as to whether airtime limits by applying said limitation on a per station basis.34 Such
owners of establishments offering "wash-up" rates may have the manner of determining airtime limits was likewise adopted for the 2007
requisite standing on behalf of their patrons' equal protection claims elections, through Resolution No. 7767.35 In the 2010 elections, under
relative to an ordinance of the City of Manila which prohibited "short- Resolution No. 8758,36 the same was again adopted. But for the 2013
time" or "wash-up" accommodation in motels and similar elections, the COMELEC, through Resolution No. 9615, as amended by
establishments. The Court essentially condensed the issue in this Resolution No. 9631, chose to aggregate the total broadcast time among
manner: "[T]he crux of the matter is whether or not these establishments the different broadcast media, thus: Section 9. Requirements and/or
have the requisite standing to plead for protection of their patrons' equal Limitations on the Use of Election Propaganda through Mass Media. -
protection rights."30 The Court then went on to hold: All parties and bona fide candidates shall have equal access to media
Standing or locus standi is the ability of a party to demonstrate to the time and space for their election propaganda during the campaign period
court sufficient connection to and harm from the law or action challenged subject to the following requirements and/or limitations:
to support that party's participation in the case. More importantly, the a. Broadcast Election Propaganda
doctrine of standing is built on the principle of separation of powers, The duration of an air time that a candidate, or party may use for their
sparing as it does unnecessary interference or invalidation by the judicial broadcast advertisements or election propaganda shall be, as follows:
branch of the actions rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial system For Not more than an aggregate
derived directly from the Constitution. The constitutional component of Candidates/Registered total of one hundred (120)
standing doctrine incorporates concepts which concededly are not Political parties for a minutes of television
susceptible of precise definition. In this jurisdiction, the extancy of "a National Elective Position advertising, whether
direct and personal interest" presents the most obvious cause, as well appearing on national,
as the standard test for a petitioner's standing. In a similar vein, the regional, or local, free or
United States Supreme Court reviewed and elaborated on the meaning cable television, and one
of the three constitutional standing requirements of injury, causation, hundred eighty (180) minutes
and redressability in Allen v. Wright. of radio advertising, whether
Nonetheless, the general rules on standing admit of several exceptions airing on national, regional, or
such as the overbreadth doctrine, taxpayer suits, third party standing local radio, whether by
and, especially in the Philippines, the doctrine of transcendental purchase or donation
importance.
For Not more than an aggregate
For this particular set of facts, the concept of third party standing as an
Candidates/Registered total of sixty (60) minutes of
exception and the overbreadth doctrine are appropriate. x x x
Political parties for a Local television advertising,
xxxx
Elective Position whether appearing on
American jurisprudence is replete with examples where parties-
national, regional, or local,
ininterest were allowed standing to advocate or invoke the fundamental
free or cable television, and
due process or equal protection claims of other persons or classes of
ninety (90) minutes of radio
persons injured by state action. x x x
advertising, whether airing on
xxxx
national, regional, or local
Assuming arguendo that petitioners do not have a relationship with their
radio, whether by purchase or
patrons for the former to assert the rights of the latter, the overbreadth
donation.
doctrine comes into play. In overbreadth analysis, challengers to
government action are in effect permitted to raise the rights of third In cases where two or more candidates or parties whose names, initials,
parties. Generally applied to statutes infringing on the freedom of images, brands, logos, insignias, color motifs, symbols, or forms of
speech, the overbreadth doctrine applies when a statute needlessly graphical representations are displayed, exhibited, used, or mentioned
restrains even constitutionally guaranteed rights. In this case, the together in the broadcast election propaganda or advertisements, the
petitioners claim that the Ordinance makes a sweeping intrusion into the length of time during which they appear or are being mentioned or
promoted will be counted against the airtime limits allotted for the said
53
candidates or parties and the cost of the said advertisement will likewise
be considered as their expenditures, regardless of whoever paid for the
advertisements or to whom the said advertisements were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was
undertaken by respondent Comelec without consultation with the
candidates for the 2013 elections, affected parties such as media
organizations, as well as the general public. Worse, said change was
put into effect without explaining the basis therefor and without showing
any data in support of such change. Respondent Comelec merely
maintained that such action "is meant to level the playing field between
the moneyed candidates and those who don i have enough resources,"
without particularizing the empirical data upon which such a sweeping
statement was based. This was evident in the public hearing held on 31
January 2013 where petitioner GMA, thru counsel, explained that no
empirical data on he excesses or abuses of broadcast media were
brought to the attention of the public by respondent Comelec, or even
stated in the Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can
expand if we want to. But the authority of the Commission is if we do not
want to amplify and we think that the 120 or 180 is okay we cannot be
compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is
found in the law and the law has been enterpreted (sic) before in 2010
to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission
on Elections. Nobody can encroach in our right to amplify. Now, if in
2010 the Commission felt that per station or per network is the rule then
that is the prerogative of the Commission then they could amplify it to
expand it. If the current Commission feels that 120 is enough for the
particular medium like TV and 180 for radio, that is our prerogative. How
can you encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to
regulate Your Honor, we are just raising our concern on the manner of
regulation because as it is right now, there is a changing mode or
sentiments of the Commission and the public has the right to know, was
there rampant overspending on political ads in 2010, we were not
informed Your Honor. Was there abuse of the media in 2010, we were
not informed Your Honor. So we would like to know what is the basis of
the sudden change in this limitation, Your Honor .. And law must have a
consistent interpretation that [is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation
counsel, is that if the Constitution allows us to regulate and then it gives
us the prerogative to amplify then the prerogative to amplify you should
leave this to the discretion of the Commission. Which means if previous
Commissions felt that expanding it should be part of our authority that
was a valid exercise if we reduce it to what is provided for by law which
is 120-180 per medium, TV, radio, that is also within the law and that is
still within our prerogative as provided for by the Constitution. If you say
we have to expose the candidates to the public then I think the reaction
should come, the negative reaction should come from the candidates
not from the media, unless you have some interest to protect directly. Is
there any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor
and we have been constantly (sic) as the resolution says and even in
the part involved because you will be getting some affirmative action
time coming from the media itself and Comelec time coming from the
media itself. So we could like to be both involved in the whole process
of the exercise of the freedom of suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the
provision of 9006 is actually to level the playing field. That should be the
paramount consideration. If we allow everybody to make use of all their
time and all radio time and TV time then there will be practically unlimited
use of the mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there
was an unlimited and abuse of a (sic) political ads in the mass media
that became the basis of this change in interpretation Your Honor? We
would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to
those who took ... who had the more moneyed candidates took
advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there
are rich candidates. No amount of law or regulation can even level the
playing filed (sic) as far as the economic station in life of the candidates
are concern (sic) our Honor.38
Given the foregoing observations about what happened during the
hearing, Petitioner-Intervenor went on to allege that:
6.16. Without any empirical data upon which to base the regulatory
measures in Section 9 (a), respondent Comelec arbitrarily changed the
rule from per station basis to aggregate airtime basis. Indeed, no
credence should be given to the cliched explanation of respondent
Comelec (i.e. leveling the playing field) in its published statements which
in itself is a mere reiteration of the rationale for the enactment of the
political ad ban of Republic Act No. 6646, and which has likewise been
foisted when said political ad ban was lifted by R.A. 9006. 39
From the foregoing, it does appear that the COMELEC did not have any
other basis for coming up with a new manner of determining allowable
time limits except its own idea as to what should be the maximum
number of minutes based on its exercise of discretion as to how to level
the playing field. The same could be encapsulized in the remark of the
COMELEC Chairman that "if the Constitution allows us to regulate and
then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission."40
The Court could not agree with what appears as a nonchalant exercise
of discretion, as expounded anon.
b. COMELEC is duty bound to come up with reasonable basis for
changing the interpretation and implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and
statutorily authorized to enforce election laws but it cannot exercise its
powers without limitations - or reasonable basis. It could not simply
adopt measures or regulations just because it feels that it is the right
thing to do, in so far as it might be concerned. It does have discretion,
but such discretion is something that must be exercised within the
bounds and intent of the law. The COMELEC is not free to simply
change the rules especially if it has consistently interpreted a legal
provision in a particular manner in the past. If ever it has to change the
rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC
after it had already promulgated the Resolution, the respondent did not
fully explain or justify the change in computing the airtime allowed
candidates and political parties, except to make reference to the need to
"level the playing field." If the "per station" basis was deemed enough to
comply with that objective in the past, why should it now be suddenly
inadequate? And, the short answer to that from the respondent, in a
manner which smacks of overbearing exercise of discretion, is that it is
within the discretion of the COMELEC. As quoted in the transcript, "the
right to amplify is with the COMELEC. Nobody can encroach in our right
to amplify. Now, if in 2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the Commission then
they could amplify it to expand it. If the current Commission feels that
120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional
about it?"41
There is something basically wrong with that manner of explaining
changes in administrative rules. For one, it does not really provide a
good basis for change. For another, those affected by such rules must
be given a better explanation why the previous rules are no longer good
enough. As the Court has said in one case:
54
While stability in the law, particularly in the business field, is desirable,
there is no demand that the NTC slavishly follow precedent. However,
we think it essential, for the sake of clarity and intellectual honesty, that
if an administrative agency decides inconsistently with previous action,
that it explain thoroughly why a different result is warranted, or ?f need
be, why the previous standards should no longer apply or should be
overturned. Such explanation is warranted in order to sufficiently
establish a decision as having rational basis. Any inconsistent decision
lacking thorough, ratiocination in support may be struck down as being
arbitrary. And any decision with absolutely nothing to support it is a
nullity.42
What the COMELEC came up with does not measure up to that level of
requirement and accountability which elevates administrative rules to
the level of respectability and acceptability. Those governed by
administrative regulations are entitled to a reasonable and rational basis
for any changes in those rules by which they are supposed to live by,
especially if there is a radical departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in
adopting "aggregate" basis in the determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions,
pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one hundred
twenty (120) minutes of television advertisement and one hundred
eighty (180) minutes of radio advertisement whether by purchase or
donation.
(b) Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty (60) minutes of
television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum
allowable airtime should be based on the totality of possible broadcast
in all television or radio stations. Senator Cayetano has called our
attention to the legislative intent relative to the airtime allowed - that it
should be on a "per station" basis.43
This is further buttressed by the fact that the Fair Election Act (R.A. No.
9006) actually repealed the previous provision, Section ll(b) of Republic
Act No. 6646,44 which prohibited direct political advertisements -the so-
called "political ad ban." If under the previous law, no candidate was
allowed to directly buy or procure on his own his broadcast or print
campaign advertisements, and that he must get it through the
COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or
her from that restriction and allowed him or her to broadcast time or print
space subject to the limitations set out in the law. Congress, in enacting
R.A. No. 9006, felt that the previous law was not an effective and efficient
way of giving voice to the people. Noting the debilitating effects of the
previous law on the right of suffrage and Philippine democracy,
Congress decided to repeal such rule by enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the
restrictive nature of the previous law, the sponsorship speech of Senator
Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and
Sections 10 and 11 of RA 6646. In view of the importance of their appeal
in connection with the thrusts of the bill, I hereby quote these sections in
full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular,
handbill, or printed matter urging voters to vote for or against any
candidate unless they hear the names and addresses of the printed and
payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard,
tinplate-poster, balloons and the like, of whatever size, shape, form or
kind, advertising for or against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral
propaganda gadgets, such as pens, lighters, fans of whatever nature,
flashlights, athletic goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign supporters
accompanying a candidate shall be allowed to wear hats and/or shirts
or T-shirts advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or
against any candidate by means of cinematography, audio-visual units
or other screen projections except telecasts which may be allowed as
hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of
charge airtime for campaign and other political purposes except as
authorized in this Code under the rules and regulations promulgated by
the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be
stopped, confiscated or tom down by the representative of the
Commission upon specific authority of the Commission." "SEC. 10.
Common Poster Areas. - The Commission shall designate common
poster areas in strategic public places such as markets, barangay
centers and the like wherein candidates can post, display or exhibit
election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the
Commission and/or non-partisan private or civic organizations which the
Commission may authorize whenever available, after due notice and
hearing, in strategic areas where it may readily be seen or read, with the
heaviest pedestrian and/or vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated
free of charge, if feasible, equitably and impartially among the
candidates in the province, city or municipality. "SEC. 11. Prohibite,d
Forms of Election Propaganda. - In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881,
it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
puolicly exhibit any election propaganda in any place, whether private or
public, except in common poster areas and/or billboards provided in the
immediately preceding section, at the candidate's own residence, or at
the campaign headquarters of the candidate or political party: Provided,
That such posters or election propaganda shall in no case exceed two
(2) feet by three (3) feet in area; Provided, further, That at the site of and
on the occasion of a public meeting or rally, streamers, not more than
two (2) feet and not exceeding three (3) feet by eight (8) each may be
displayed five (5) days before the date of the meeting or rally, and shall
be removed within twenty-four (24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or
other mass media, or any person making use of the mass media to sell
or give for free of charge print space or air time for campaign or other
political purposes except to the Commission as provided under Section
90 and 92 of Batas Pambansa Big. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any
elective public office shall take a leave of absence from his work as such
during the campaign."
The repeal of the provision on the Common Poster Area implements the
strong recommendations of the Commission on Elections during the
hearings. It also seeks to apply the doctrine enunciated by the Supreme
Court in the case of Blo Umpar Adiong vs. Commission on Elections,
207 SCRA 712, 31 March 1992. Here a unanimous Supreme Court
ruled: The COMELEC's prohibition on the posting of decals and stickers
on "mobile" places whether public or private except [in] designated areas
provided for by the COMELEC itself is null and void on constitutional
grounds.
For the foregoing reasons, we commend to our colleagues the early
passage of Senate Bill No. 1742. In so doing, we move one step towards
further ensuring "free, orderly, honest, peaceful and credible elections"
as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude
that Congress intended to provide a more expansive and liberal means
by which the candidates, political parties, citizens and other stake
holders in the periodic electoral exercise may be given a chance to fully
explain and expound on their candidacies and platforms of governance,
and for the electorate to be given a chance to know better the
personalities behind the candidates. In this regard, the media is also
given a very important part in that undertaking of providing the means
by which the political exercise becomes an interactive process. All of
these would be undermined and frustrated with the kind of regulation
that the respondent came up with.
The respondent gave its own understanding of the import of the
legislative deliberations on the adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress
intended to impose the per candidate or political party aggregate total
airtime limits on political advertisements and election propaganda. This
is evidenced by the dropping of the "per day per station" language
embodied in both versions of the House of Representatives and Senate
bills in favour of the "each candidate" and "not more than" limitations
now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742
read as follows:
House Bill No. 9000:
55
SEC. 4. Section 86 of the same Batas is hereby amended to read as
follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether
by purchase or by donation, shall be limited to five (5) minutes per day
in each television, cable television and radio stations during the
applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered parties
and bona fide candidates shall have equal access to media space and
time. The following guidelines may be amplified by the COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide
candidate whether by purchase or donation shall not exceed a total of
one (1) minute per day per television or radio station. (Emphasis
supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen
that the legislature intended the aggregate airtime limits to be computed
on per candidate or party basis. Otherwise, if the legislature intended
the computation to be on per station basis, it could have left the original
"per day per station" formulation.46
The Court does not agree. It cannot bring itself to read the changes in
the bill as disclosing an intent that the COMELEC wants this Court to put
on the final language of the law. If anything, the change in language
meant that the computation must not be based on a "per day" basis for
each television or radio station. The same could not therefore lend itself
to an understanding that the total allowable time is to be done on an
aggregate basis for all television or radio stations. Clearly, the
respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is
supposed to implement. As we held in Lakin, Jr. v. Commission on
Elections:47
The COMELEC, despite its role as the implementing arm of the
Government in the enforcement and administration of all laws and
regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the law it
seeks to implement thereby. The IRRs the COMELEC issued for that
purpose should always be in accord with the law to be implemented, and
should not override, supplant, or modify the law. It is basic that the IRRs
should remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the
Government under legislative authority must be in harmony with the
provisions of the law, and should be for the sole purpose of carrying the
law's general provisions into effect. The law itself cannot be expanded
by such IRRs, because an administrative agency cannot amend an act
of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the Resolution
then in question did not add anything but merely reworded and
rephrased the statutory provision did not persuade the Court. With more
reason here since the COMELEC not only reworded or rephrased the
statutory provision - it practically replaced it with its own idea of what the
law should be, a matter that certainly is not within its authority. As the
Court said in Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a public
official exercises power, not rights. The government itself is merely an
agency through which the will of the state is expressed and enforced. Its
officers therefore are likewise agents entrusted with the responsibility of
discharging its functions. As such there is no presumption that they are
empowered to act. There must be a delegation of such authority, either
express or implied. In the absence of a valid grant, they are devoid of
power. What they do suffers from a fatal infirmity. That principle cannot
be sufficiently stressed. In the appropriate language of Chief Justice
Hughes: "It must be conceded that departmental zeal may not be
permitted to outrun the authority conferred by statute." Neither the high
dignity of the office nor the righteousness of the motive then is an
acceptable substitute. Otherwise the rule of law becomes a myth. Such
an eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also
goes against the constitutional guaranty of freedom of expression, of
speech and of the press
The guaranty of freedom to speak is useless without the ability to
communicate and disseminate what is said. And where there is a need
to reach a large audience, the need to access the means and media for
such dissemination becomes critical. This is where the press and
broadcast media come along. At the same time, the right to speak and
to reach out would not be meaningful if it is just a token ability to be heard
by a few. It must be coupled with substantially reasonable means by
which the communicator and the audience could effectively interact.
Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the
"aggregate-based" airtime limits unreasonably restricts the guaranteed
freedom of speech and of the press.
Political speech is one of the most important expressions protected by
the Fundamental Law. "[F]reedom of speech, of expression, and of the
press are at the core of civil liberties and have to be protected at all costs
for the sake of democracy."51 Accordingly, the same must remain
unfettered unless otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests,
an American case observed:
A restriction on the amount of money a person or group can spend on
political communication during a campaign necessarily reduces the
quantity of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached. This is
because virtually every means of communicating ideas in today's mass
society requires the expenditure of money. The distribution of the
humblest handbill or leaflet entails printing, paper, and circulation costs.
Speeches and rallies generally necessitate hiring a hall and publicizing
the event. The electorate's increasing dependence on television, radio,
and other mass media for news and information has made these
expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent substantial,
rather than merely theoretical restraints on the quantity and diversity of
political speech. The $1,000 ceiling on spending "relative to a clearly
identified candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would
appear to exclude all citizens and groups except candidates, political
parties, and the institutional press from any significant use of the most
effective modes of communication. Although the Act's limitations on
expenditures by campaign organizations and political parties provide
substantially greater room for discussion and debate, they would have
required restrictions in the scope of a number of past congressional and
Presidential campaigns and would operate to constrain campaigning by
candidates who raise sums in excess of the spending ceiling. 52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is
challenged as being an unreasonable basis for determining the
allowable air time that candidates and political parties may avail of.
Petitioner GMA came up with its analysis of the practical effects of such
a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New
Rules, petitioner GMA estimates that a national candidate will only have
120 minutes to utilize for his political advertisements in television during
the whole campaign period of 88 days, or will only have 81.81 seconds
per day TV exposure allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal allocation, he will
only have 27.27 seconds of airtime per network per day. This barely
translates to 1 advertisement spot on a 30-second spot basis in
television.
5.9. With a 20-hour programming per day and considering the limits of a
station's coverage, it will be difficult for 1 advertising spot to make a
sensible and feasible communication to the public, or in political
propaganda, to "make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network,
this will translate to barely three 30-second advertising spots in
television on a daily basis using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience
measurement in Mega Manila, the commercial advertisements in
television are viewed by only 39.2% of the average total day household
audience if such advertisements are placed with petitioner GMA, the
leading television network nationwide and in Mega Manila. In effect,
under the restrictive aggregate airtime limits in the New Rules, the three
30-second political advertisements of a candidate in petitioner GMA will
only be communicated to barely 40% of the viewing audience, not even
the voting population, but only in Mega Manila, which is defined by AGB
Nielsen Philippines to cover Metro Manila and certain urban areas in the
provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga.
Consequently, given the voting population distribution and the drastically
reduced supply of airtime as a result of the New Rules' aggregate airtime
limits, a national candidate will be forced to use all of his airtime for
56
political advertisements in television only in urban areas such as Mega
Manila as a political campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas
deserve to be informed of the candidates in the national elections, and
the said candidates also enjoy the right to be voted upon by these
informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime limits
is unreasonable and arbitrary as it unduly restricts and constrains the
ability of candidates and political parties to reach out and communicate
with the people. Here, the adverted reason for imposing the "aggregate-
based" airtime limits - leveling the playing field - does not constitute a
compelling state interest which would justify such a substantial
restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of
government. And, this is specially so in the absence of a clear-cut basis
for the imposition of such a prohibitive measure. In this particular
instance, what the COMELEC has done is analogous to letting a bird fly
after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the
aggregate-based time limits on broadcast time when we consider that
the Philippines is not only composed of so many islands. There are also
a lot of languages and dialects spoken among the citizens across the
country. Accordingly, for a national candidate to really reach out to as
many of the electorates as possible, then it might also be necessary that
he conveys his message through his advertisements in languages and
dialects that the people may more readily understand and relate to. To
add all of these airtimes in different dialects would greatly hamper the
ability of such candidate to express himself - a form of suppression of
his political speech.
Respondent itself states that "[t]elevision is arguably the most
costeffective medium of dissemination. Even a slight increase in
television exposure can significantly boost a candidate's popularity,
name recall and electability."54 If that be so, then drastically curtailing the
ability of a candidate to effectively reach out to the electorate would
unjustifiably curtail his freedom to speak as a means of connecting with
the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in
his concurring opinion in the landmark Pentagon Papers case: "In the
First Amendment, the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The
press was to serve the governed, not the governors. The Government's
power to censor the press was abolished so that the press would remain
forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only
a free and unrestrained press can effectively expose deception in
government."55
In the ultimate analysis, when the press is silenced, or otherwise muffled
in its undertaking of acting as a sounding board, the people ultimately
would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to
suffrage
Fundamental to the idea of a democratic and republican state is the right
of the people to determine their own destiny through the choice of
leaders they may have in government. Thus, the primordial importance
of suffrage and the concomitant right of the people to be adequately
informed for the intelligent exercise of such birthright. It was said that:
x x x As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of power
must be emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and the
common weal. Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority. He has a voice in his
Government and whenever possible it is the solemn duty of the judiciary,
when called upon to act in justifiable cases, to give it efficacy and not to
stifle or frustrate it. This, fundamentally, is the reason for the rule that
ballots should be read and appreciated, if not with utmost, with
reasonable, liberality. x x x56 It has also been said that "[ c ]ompetition in
ideas and governmental policies is at the core of our electoral process
and of the First Amendment freedoms."57 Candidates and political
parties need adequate breathing space - including the means to
disseminate their ideas. This could not be reasonably addressed by the
very restrictive manner by which the respondent implemented the time
limits in regard to political advertisements in the broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013
then came up with a public hearing on January 31, 2013 to explain what
it had done, particularly on the aggregate-based air time limits. This
circumstance also renders the new regulation, particularly on the
adoption of the aggregate-based airtime limit, questionable. It must not
be overlooked that the new Resolution introduced a radical change in
the manner in which the rules on airtime for political advertisements are
to be reckoned. As such there is a need for adequate and effective
means by which they may be adopted, disseminated and implemented.
In this regard, it is not enough that they be published - or explained -
after they have been adopted.
While it is true that the COMELEC is an independent office and not a
mere administrative agency under the Executive Department, rules
which apply to the latter must also be deemed to similarly apply to the
former, not as a matter of administrative convenience but as a dictate of
due process. And this assumes greater significance considering the
important and pivotal role that the COMELEC plays in the life of the
nation. Thus, whatever might have been said in Commissioner of
Internal Revenue v. Court of Appeals,58 should also apply mutatis
mutandis to the COMELEC when it comes to promulgating rules and
regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of
government we have adopted:
It should be understandable that when an administrative rule is merely
interpretative in nature, its applicability needs nothing further than its
bare issuance for it gives no real consequence more than what the law
itself has already prescribed. When, upon the other hand, the
administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but
substantially adds to or increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a
chance to be heard, and thereafter to be duly informed, before that new
issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances
under which it has been issued, convinces us that the circular cannot be
viewed simply as a corrective measure (revoking in the process the
previous holdings of past Commissioners) or merely as construing
Section 142(c)(l) of the NIRC, as amended, but has, in fact and most
importantly, been made in order to place "Hope Luxury," "Premium
More" and "Champion" within the classification of locally manufactured
cigarettes bearing foreign brands and to thereby have them covered by
RA 7654. Specifically, the new law would have its amendatory
provisions applied to locally manufactured cigarettes which at the time
of its effectivity were not so classified as bearing foreign brands. x x x In
so doing, the BIR not simply interpreted the law; verily, it legislated under
its quasi-legislative authority. The due observance of the requirements
of notice, of hearing, and of publication should not have been then
ignored.59
For failing to conduct prior hearing before coming up with Resolution No.
9615, said Resolution, specifically in regard to the new rule on aggregate
airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its
substantive component, that any governmental rule or regulation must
be reasonable in its operations and its impositions. Any restrictions, as
well as sanctions, must be reasonably related to the purpose or objective
of the government in a manner that would not work unnecessary and
unjustifiable burdens on the citizenry. Petitioner GMA assails certain
requirements imposed on broadcast stations as unreasonable. It
explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM
radio stations nationwide and 8 originating television stations (including
its main transmitter in Quezon City) which are authorized to dechain
national programs for airing and insertion of local content and
advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are
applied on an aggregate basis and considering that said Rules declare
it unlawful in Section 7( d) thereof for a radio, television station or other
mass media to sell or give for free airtime to a candidate in excess of
that allowed by law or by said New Rules:
57
"Section 7. Prohibited Forms of Election Propaganda -During the
campaign period, it is unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or cable television
station, or other mass media, or any person making use of the mass
media to sell or to give free of charge print space or air time for campaign
or election propaganda purposes to any candidate or party in excess of
the size, duration or frequency authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to
avoid administrative or criminal liability would be unfair, cruel and
oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by
all television and radio stations, broadcast mass media organizations
would surely encounter insurmountable difficulties in monitoring the
airtime minutes spent by the numerous candidates for various elective
positions, in real time.
5.44 An inquiry with the National Telecommunications Commission
(NTC) bears out that there are 372 television stations and 398 AM and
800 FM radio stations nationwide as of June 2012. In addition, there are
1, 113 cable TV providers authorized by the NTC to operate within the
country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to
monitor political advertisements pursuant to the New Rules, petitioner
OMA estimates that monitoring television broadcasts of all authorized
television station would involve 7,440 manhours per day. To aggravate
matters, since a candidate may also spend his/her broadcasting minutes
on cable TV, additional 281,040 manhours per day would have to be
spent in monitoring the various channels carried by cable TV throughout
the Philippines. As far as radio broadcasts (both AM and FM stations)
are concerned, around 23,960 manhours per day would have to be
devoted by petitioner OMA to obtain an accurate and timely
determination of a political candidate's remaining airtime minutes.
During the campaign period, petitioner OMA would have to spend an
estimated 27,494,720 manhours in monitoring the election campaign
commercials of the different candidates in the country.1âwphi1
5.46 In order to carry-out the obligations imposed by the New Rules,
petitioner OMA further estimates that it would need to engage and train
39,055 additional persons on an eight-hour shift, and assign them all
over the country to perform the required monitoring of radio, television
and cable TV broadcasts. In addition, it would likewise need to allot
radio, television, recording equipment and computers, as well as
telecommunications equipment, for this surveillance and monitoring
exercise, thus imputing additional costs to the company. Attached
herewith are the computations explaining how the afore-said figures
were derived and the conservative assumptions made by petitioner
OMA in reaching said figures, as Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and
effort would have to be replicated by each and every radio station to
ensure that they have properly monitored around 33 national and more
than 40,000 local candidates' airtime minutes and thus, prevent any risk
of administrative and criminal liability.60
The Court cannot agree with the contentions of GMA. The
apprehensions of the petitioner appear more to be the result of a
misappreciation of the real import of the regulation rather than a real and
present threat to its broadcast activities. The Court is more in agreement
with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations
are merely required to submit certain documents to aid the Comelec in
ensuring that candidates are not sold airtime in excess of the allowed
limits. These documents include: (1) certified true copies of broadcast
logs, certificates of performance, and certificates of acceptance, or other
analogous record on specified dates (Section 9[d][3], Resolution No.
9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all contract
for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its
signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring,
much less monitoring in real time. GMA grossly exaggerates when it
claims that the non-existent duty would require them to hire and train an
astounding additional 39,055 personnel working on eight-hour shifts all
over the country.61
The Court holds, accordingly, that, contrary to petitioners' contention,
the Reporting Requirement for the COMELEC's monitoring is
reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the
respondent revised the third paragraph of Section 9 (a). As revised, the
provision now reads:
Appearance or guesting by a candidate on any bona fide newscast, bona
fide news interview, bona fide news documentary, if the appearance of
the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide
news events, including but not limited to events sanctioned by the
Commission on Elections, political conventions, and similar activities,
shall not be deemed to be broadcast election propaganda within the
meaning of this provision. For purposes of monitoring by the COMELEC
and ensuring that parties and candidates were afforded equal
opportunities to promote their candidacy, the media entity shall give prior
notice to the COMELEC, through the appropriate Regional Election
Director (RED), or in the case of the National Capital Region (NCR), the
Education and Information Department (EID). If such prior notice is not
feasible or practicable, the notice shall be sent within twenty-four (24)
hours from the first broadcast or publication.1awp++i1 Nothing in the
foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news events, from the
obligation imposed upon them under Sections 10 and 14 of these
Rules."63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of
such monitoring requirement, contending, among others, that it
constitutes prior restraint. The Court finds otherwise. Such a
requirement is a reasonable means adopted by the COMELEC to
ensure that parties and candidates are afforded equal opportunities to
promote their respective candidacies. Unlike the restrictive aggregate-
based airtime limits, the directive to give prior notice is not unduly
burdensome and unreasonable, much less could it be characterized as
prior restraint since there is no restriction on dissemination of information
before broadcast. Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in issue was worded in this
wise:
Appearance or guesting by a candidate on any bona fide newscast, bona
fide news interview, bona fide news documentary, if the appearance of
the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide
news events, including but not limited to events sanctioned by the
Commission on Elections, political conventions, and similar activities,
shall not be deemed to be broadcast election propaganda within the
meaning of this provision. To determine whether the appearance or
guesting in a program is bona fide, the broadcast stations or entities
must show that (1) prior approval of the Commission was secured; and
(2) candidates and parties were afforded equal opportunities to promote
their candidacy. Nothing in the foregoing sentence shall be construed as
relieving broadcasters, in connection with the presentation of newscasts,
news interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under Sections 10
and 14 of these Rules.64
Comparing the original with the revised paragraph, one could readily
appreciate what the COMELEC had done - to modify the requirement
from "prior approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a charge of prior restraint,
the latter is more in the nature of a content-neutral regulation designed
to assist the poll body to undertake its job of ensuring fair elections
without having to undertake any chore of approving or disapproving
certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as
not constitutionally infirm, it similarly concludes that the "right to reply"
provision is reasonable and consistent with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631,
provides:
SECTION 14. Right to Reply. - All registered political parties, party-list
groups or coalitions and bona fide candidates shall have the right to reply
to charges published or aired against them. The reply shall be given
publicity by the newspaper, television, and/or radio station which first
printed or aired the charges with the same prominence or in the same
page or section or in the same time slot as the first statement.
58
Registered political parties, party-list groups or coalitions and bona fide
candidates may invoke the right to reply by submitting within a
nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the
COMELEC, through the appropriate RED. The claim shall include a
detailed enumeration of the circumstances and occurrences which
warrant the invocation of the right to reply and must be accompanied by
supporting evidence, such a copy of the publication or recording of the
television or radio broadcast, as the case may be. If the supporting
evidence is not yet available due to circumstances beyond the power of
the claimant, the latter shall supplement his claim as soon as the
supporting evidence becomes available, without delay on the part of the
claimant. The claimant must likewise furnish a copy of the verified claim
and its attachments to the media outlet concerned prior to the filing of
the claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within
forty-eight ( 48) hours from receipt thereof, including supporting
evidence, and if circumstances warrant, give notice to the media outlet
involved for appropriate action, which shall, within forty-eight ( 48) hours,
submit its comment, answer or response to the RED, explaining the
action it has taken to address the claim. The media outlet must likewise
furnish a copy of the said comment, answer or response to the claimant
invoking the right to reply.
Should the claimant insist that his/her right to reply was not addressed,
he/she may file the appropriate petition and/or complaint before the
Commission on Elections or its field offices, which shall be endorsed to
the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily
anchored on the alleged ground of prior restraint, specifically in so far as
such a requirement may have a chilling effect on speech or of the
freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the
relevant interests - the constitutional mandate granting candidates the
right to reply and the inviolability of the constitutional freedom of
expression, speech, and the press - will show that the Right to Reply, as
provided for in the Assailed Resolution, is an impermissible restraint on
these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing
of interests test) with respect to the present controversy will show that
the Constitution does not tilt the balance in favor of the Right to Reply
provision in the Assailed Resolution and the supposed governmental
interest it attempts to further.65
The Constitution itself provides as part of the means to ensure free,
orderly, honest, fair and credible elections, a task addressed to the
COMELEC to provide for a right to reply.66 Given that express
constitutional mandate, it could be seen that the Fundamental Law itself
has weighed in on the balance to be struck between the freedom of the
press and the right to reply. Accordingly, one is not merely to see the
equation as purely between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest, peaceful,
and credible elections would necessarily have to be factored in trying to
see where the balance lies between press and the demands of a right-
to-reply.
Moreover, as already discussed by the Court in Telecommunications
and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections.67
In truth, radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the
temporary privilege of using them. Since a franchise is a mere privilege,
the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme
Court decision with regard to broadcasting, right to reply requirements,
and the limitations on speech:
We have long recognized that each medium of expression presents
special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343
US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of
communication, it is broadcasting that has received the most limited First
Amendment protection. Thus, although other speakers cannot be
licensed except under laws that carefully define and narrow official
discretion, a broadcaster may be deprived of his license and his forum if
the Commission decides that such an action would serve "the public
interest, convenience, and necessity." Similarly, although the First
Amendment protects newspaper publishers from being required to print
the replies of those whom they criticize, Miami Herald Publishing Co. v.
Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such
protection to broadcasters; on the contrary, they must give free time to
the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 US.
367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance
to the present case. First, the broadcast media have established a
uniquely pervasive presence in the lives of all Americans. Patently
offensive, indecent material presented over the airwaves confronts the
citizen not only in public, but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs the First Amendment
rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L Ed
2d 736, 90 S Ct 1484. Because the broadcast audience is constantly
tuning in and out, prior warnings cannot completely protect the listener
or viewer from unexpected program content. To say that one may avoid
further offense by turning off the radio when he hears indecent language
is like saying that the remedy for an assault is to run away after the first
blow. One may hang up on an indecent phone call, but that option does
not give the caller a constitutional immunity or avoid a harm that has
already taken place.
Second, broadcasting is uniquely accessible to children, even those too
young to read. Although Cohen's written message might have been
incomprehensible to a first grader, Pacifica's broadcast could have
enlarged a child's vocabulary in an instant. Other forms of offensive
expression may be withheld from the young without restricting the
expression at its source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York, 390 US 629, that the
government's interest in the "well-being of its youth" and in supporting
"parents' claim to authority in their own household" justified the
regulation of otherwise protected expression. The ease with which
children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring
speech and the press over so many other values of society do not readily
lend itself to this particular matter. Instead, additional weight should be
accorded on the constitutional directive to afford a right to reply. If there
was no such mandate, then the submissions of petitioners may more
easily commend themselves for this Court's acceptance. But as noted
above, this is not the case. Their arguments simplistically provide
minimal importance to that constitutional command to the point of
marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech,
of expression and of the press, the latter must be properly viewed in
context as being necessarily made to accommodate the imperatives of
fairness by giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY
GRANTED, Section 9 (a) of Resolution No. 9615, as amended by
Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore,
NULL and VOID. The constitutionality of the remaining provisions of
Resolution No. 9615, as amended by Resolution No. 9631, is upheld
and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the
Court on April 16, 2013 is hereby made PERMANENT.
SO ORDERED.
CASE 9
Please take notice that the Court, First Division, issued a Resolution
dated March 21, 2018 which reads as follows: "G.R. No. 220127 - Carlos
Celdran y Pamintuan vs. People of the Philippines Before Us is a petition
for review on certiorari1 assailing the Decision2 dated December 12,
2014 and Resolution3 dated August 14, 2015 of the Court of Appeals
(CA) in CA-G.R. CR No. 36170 affirming the Decision4 dated August 12,
2013 of the Regional Trial Comi (RTC) of Manila, Branch 32, in Criminal
Case No. 13-295293 finding Carlos P. Celdran (petitioner) guilty beyond
reasonable doubt of the crime Offending the Religious Feelings
punishable under Article 1335 of the Revised Penal Code (RPC).
Petitioner was charged in an Information6 filed with the Metropolitan
Trial Comi (Me TC) of Manila, Branch 4, for the offense of Offending the
Religious Feelings defined and penalized under A1iicle 133 of the RPC.
59

The facts of the case established that in celebration of the second
anniversary of the May They Be One Campaign (MTBC) and the
launching of the Hand Written Bible which coincided with the feast of
Saint Jerome, a throng of people composed mainly of catholic church
dignitaries intermixed with those of different religions such as members
of the military, police, media, non-catholics, students, representatives of
various religious organizations gathered around the Manila Cathedral in
the afte1noon of September 30, 2010. 7 The event was comprised of
three (3) inseperable parts. The first part was the ecumenical liturgical
religious worship wherein the heads of the different protestant mainland
churches and the catholic church were present celebrating the words of
God. It was followed by the Eucharistic celebration - the holy mass. The
last part was the hand written unity bible. 8 While Brother Edgar J. Tria
Tirona was reading a passage from the Bible around 3:00 p.m.,
petitioner entered the Manila Cathedral clad in a black suit and a hat.
Petitioner went to the center of the aisle, in front of the altar and suddenly
brought out a placard emblazoned with the word "DAMASO."
Commotion ensued when petitioner started shouting while inside the
church saying "Bishops, stop involving yourself (sic) in politics,"9
disrupting and showing disrespect to an otherwise solemn
celebration.10 The defense, on the other hand, alleged that the incident
did not happen during the celebration of the holy mass and nothing
happened that disturbed the proceedings. 11 The MeTC in its
Decision12 dated December 14, 2012, found petitioner guilty of the
crime Offending Religious Feelings, thus:
WHEREFORE, premises considered, accused [petitioner] is found
"Guilty" beyond reasonable doubt for the crime of Offending Religious
Feelings under Article 133 of the [RPC], and applying the Indeterminate
Sentence Law, there being no mitigating and aggravating circumstance,
he is hereby sentenced to suffer imprisonment of two (2) months and
twenty-one (21) days as minimum to one (1) year, one (1) month and
eleven (11) days as maximum of prision correccional in its medium
period, with costs de oficio. SO ORDERED.
Upon appeal to the RTC, the latter in its Decision 14 affirmed petitioner's
conviction, to wit:
WHEREFORE, judgment is hereby rendered affirming the Decision
dated December 14, 2012 rendered by the [MeTC], Branch 4, Manila
:finding [petitioner] guilty beyond reasonable doubt of the crime of
Offending Religious Feelings under A1iicle 133 of the [RPC], and
sentencing him to an indeterminate prision term of two (2) months and
twenty[-]one (21) days of arresto mayor, as minimw11 to one (1) year,
one (1) month and eleven (11) days of prision correccional as maximum
with costs de o.ficio. SO ORDERED.
Undaunted, petitioner filed a petition for review before the CA. In its
Decision16 dated December 12, 2014, the CA affirmed the findings of
the MeTC and the RTC which reads:
WHEREFORE, premises considered, the instant appeal is DENIED.
Accordingly, the 12 August 2013 Decision and the Order dated 11
November 2013 of the [RTC] of Manila, Branch 32 are hereby
AFFIRMED in toto. SO ORDERED.
Petitioner's motion for reconsideration 18 was likewise denied by the CA
in aResolution19 dated August 14, 2015. Hence, this petition. Time and
again, We held that in a petition for review on certiorari under Rule 45 of
the Rules Comi, only questions of law may be raised. Any resolution as
to questions of fact will not be entertained by this Court. The findings of
fact made by the trial comis are accorded the highest degree of respect
by this Comi, especially when the MeTC, the RTC and the CA have
similar findings. "Absent any clear showing of abuse, arbitrariness or
capriciousness committed by the lower comi[s], its findings of facts,
especially when affirmed by the CA, are binding and conclusive upon
this Court."20 The question of whether petitioner offended the religious
feelings of those who were present during the celebration of the MTBC
is a question of fact which will not be entertained in the present petition.
As held in the case of The People of the Philippines v. Jose M Baes:
[W]hether or not the act complained of is offensive to the religious
feelings of the Catholics, is a question of fact which must be judged only
according to the feelings of the Catholics and not those of other faithful
ones, for it is possible that ce1iain acts may offend the feelings of those
who profess a certain religion, while not otherwise offensive to the
feelings of those professing another faith. xxx.
We agree with the CA in its finding that the acts of petitioner were meant
to mock, insult, and ridicule those clergy whose beliefs and principles
were diametrically opposed to his own. 23 Therefore, for failure of the
petitioner to sufficiently show any reversible error in the uniform findings
of the Me TC, the RTC and the CA, We resolve to DENY the instant
petition. WHEREFORE, premises considered, the Decision dated
December 12, 2014 and Resolution dated August 14, 2015 of the Comi
of Appeals in CA-G.R. CR No. 36170 are hereby AFFIRMED. SO
ORDERED."
CASE 10
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.1 Superior strength – the use of force – cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak." Laws
and actions that restrict fundamental rights come to the courts "with a
heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to
defend and preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the Constitution. Hence,
such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a
state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: "The
President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .," and in my capacity
as their Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by
the NDF-CPP-NPA and the extreme Right, represented by military
60
adventurists – the historical enemies of the democratic Philippine
State – who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the economy
and sabotaging the people’s confidence in government and their faith in
the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP
1017, thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by
the NDF-CPP-NPA and the extreme Right, represented by military
adventurists - the historical enemies of the democratic Philippine State
– and who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy
and sabotaging the people’s confidence in the government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger
to the safety and the integrity of the Philippine State and of the Filipino
people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of
the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the
President lifted PP 1017. She issued Proclamation No. 1021 which
reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24, 2006,
was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of the
political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he explained
that it is not respondents’ task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated
hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny,
escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs.
They called upon the people to "show and proclaim our displeasure at
the sham regime. Let us demonstrate our disgust, not only by going to
the streets in protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled
"Oplan Hackle I " which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet
members and President Arroyo herself.6 Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The
next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of the
Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive
documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are under
the effective control of responsible and trustworthy officers with proven
integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about
his group’s plans if President Arroyo is ousted. Saycon also phoned a
man code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces
of the Philippines (AFP), that a huge number of soldiers would join the
rallies to provide a critical mass and armed component to the Anti-Arroyo
protests to be held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the soldiers because
they too, were breaking the chain of command to join the forces foist to
unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took
61
custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party
and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable
to rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
"Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties,
coalitions, plus the groups that have been reinforcing since June 2005,
it is probable that the President’s ouster is nearing its concluding stage
in the first half of 2006.
Respondents further claimed that the bombing of telecommunication
towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So
is the raid of an army outpost in Benguet resulting in the death of three
(3) soldiers. And also the directive of the Communist Party of the
Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and
the PNP to account for all their men and ensure that the chain of
command remains solid and undivided. To protect the young students
from any possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National Capital
Region.
For their part, petitioners cited the events that followed after the issuance
of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of
all programs and activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President’s mind were organized
for purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies
would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already
near the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass
shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action
was used against the protesters marching forward to Cubao, Quezon
City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as
the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives
of the Criminal Investigation and Detection Group (CIDG) of the PNP,
on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices
in Manila. The raiding team confiscated news stories by reporters,
documents, pictures, and mock-ups of the Saturday issue. Policemen
from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices,
the police surrounded the premises of another pro-opposition paper,
Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this
government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government
during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards – and the standards are -
if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we
will recommend a ‘takeover.’" National Telecommunications’
Commissioner Ronald Solis urged television and radio networks
to "cooperate" with the government for the duration of the state of
national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt
foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out
for media coverage when the national security is threatened. 14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang
Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is
not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O.
No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montaño, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the
Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casiño and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket
Office in Davao City. Later, he was turned over to the custody of the
House of Representatives where the "Batasan 5" decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the
state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality
of PP 1017 and G.O. No. 5 were filed with this Court against the above-
named respondents. Three (3) of these petitions impleaded President
Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) itis a subterfuge to avoid the constitutional requirements
for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House
of Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative
powers"; "violation of freedom of expression" and "a declaration of
martial law." They alleged that President Arroyo "gravely abused her
discretion in calling out the armed forces without clear and verifiable
factual basis of the possibility of lawless violence and a showing that
there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact
62
laws and decrees; (2) their issuance was without factual basis;
and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged
that PP 1017 is an "arbitrary and unlawful exercise by the President of
her Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of
the freedom of expression, including its cognate rights such as freedom
of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances prevented
her from fully prosecuting her election protest pending before the
Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not violate the
people’s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country
is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and
thus to vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-
starting capacity."23 Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is "definite and
concrete, touching the legal relations of parties having adverse legal
interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case
or controversy, contending that the present petitions were rendered
"moot and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26so that a declaration
thereon would be of no practical use or value.27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8)
days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present
petitions. It must be stressed that "an unconstitutional act is not a law, it
confers no rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution;31second, the exceptional character of the situation
and the paramount public interest is involved;32 third, when
constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public;33and fourth, the case is
capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged
that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on
the extent of the protection given by constitutional guarantees. 35 And
lastly, respondents’ contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents
cited Chief Justice Artemio V. Panganiban’s Separate Opinion
in Sanlakas v. Executive Secretary.36 However, they failed to take into
account the Chief Justice’s very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has
been and/or continues to be prejudiced or damaged as a direct result of
its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on
legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on
a given question."37 In private suits, standing is governed by the "real-
parties-in interest" rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that "every action
must be prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to
the avails of the suit."38 Succinctly put, the plaintiff’s standing is based
on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the public concern. As held
by the New York Supreme Court in People ex rel Case v. Collins:40 "In
matter of mere public right, however…the people are the real parties…It
is at least the right, if not the duty, of every citizen to interfere and see
63
that a public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v.
Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest common
to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera,44 it held that the person who impugns the validity of a statute must
have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the
Senate,45 Manila Race Horse Trainers’ Association v. De la
Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This
was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,49 where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity
nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon
the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held
that "given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to prosper
despite the lack of direct injury to the parties seeking judicial review" of
the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’ taxing
or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements
may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity
of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more
so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are
being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Comelec,57 the Court reiterated the "direct injury" test with respect to
concerned citizens’ cases involving constitutional issues. It held that
"there must be a showing that the citizen personally suffered some
actual or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban
ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had
not demonstrated any injury to itself or to its leaders, members or
supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they
claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa,
and Social Justice Society, the Court declared them to be devoid of
standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David
and Llamas, is beyond doubt. The same holds true with petitioners
in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so,
the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether
or not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give
it legal standing. Organizations may be granted standing to assert the
rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an
institution or its members may suffer as a consequence of the issuance
of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,66 the Court held that the mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while undoubtedly true, is
not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry.
However, in view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to
file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation
that her prerogatives as a lawmaker have been impaired by PP 1017
and G.O. No. 5. Her claim that she is a media personality will not likewise
aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this
Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This
is the underlying legal tenet of the "liberality doctrine" on legal standing.
It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is
a judicial question which is of paramount importance to the Filipino
64
people. To paraphrase Justice Laurel, the whole of Philippine society
now waits with bated breath the ruling of this Court on this very critical
matter. The petitions thus call for the application of the "transcendental
importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or
actual incumbency,67 may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation
of the Government. However, this does not mean that the President is
not accountable to anyone. Like any other official, he remains
accountable to the people68 but he may be removed from office only in
the mode provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not "necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-
of-war always cuts across the line defining "political questions,"
particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of
the government."75 Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority
to inquire into the existence of factual bases in order to determine their
constitutional sufficiency. From the principle of separation of powers, it
shifted the focus to the system of checks and balances, "under which
the President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.78 Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared
that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given
absolute control for the very life of the nation and the government is in
great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most
pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion."This ruling
is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments.
Under the new definition of judicial power, the courts are authorized not
only "to settle actual controversies involving rights which are legally
demandable and enforceable," but also "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." The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before
a forbidden territory, to wit, the discretion of the political departments of
the government.81 It speaks of judicial prerogative not only in terms
of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness. 83 In Integrated
Bar of the Philippines, this Court further ruled that "it is incumbent upon
the petitioner to show that the President’s decision is totally bereft of
factual basis" and that if he fails, by way of proof, to support his
assertion, then "this Court cannot undertake an independent
investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-
out power, by issuing PP 1017, is totally bereft of factual basis. A reading
of the Solicitor General’s Consolidated Comment and Memorandum
shows a detailed narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the records. Mentioned are
the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security
Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced
that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was
not expected to simply fold her arms and do nothing to prevent or
suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon
the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the
promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion
for the public good, without the proscription of the law and sometimes
even against it."84 But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the
need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the
State…
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its
law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not
perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely be
cheapened by "indiscreet use." He was unwilling to rely upon an "appeal
to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme necessity,
the assumption of absolute power in the form of a temporary
dictatorship."88
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Nicollo Machiavelli’s view of emergency powers, as one element in the
whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge
this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra –constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded
under that pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having a remedy
for every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem
of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional
restraints.90
Contemporary political theorists, addressing themselves to the problem
of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.91 Frederick M.
Watkins saw "no reason why absolutism should not be used as a means
for the defense of liberal institutions," provided it "serves to protect
established institutions from the danger of permanent injury in a period
of temporary emergency and is followed by a prompt return to the
previous forms of political life."92 He recognized the two (2) key elements
of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at
the same time "imposing limitation upon that power."93Watkins placed
his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship
must be relatively short…Dictatorship should always be strictly
legitimate in character…Final authority to determine the need for
dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency dictatorship should
be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power – in a government
where power has consciously been divided – to cope with… situations
of unprecedented magnitude and gravity. There must be a broad grant
of powers, subject to equally strong limitations as to who shall exercise
such powers, when, for how long, and to what end." 96 Friedrich, too,
offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by
constitutional means – i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers
should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship
should be initiated unless it is necessary or even indispensable to the
preservation of the State and its constitutional order…
2) …the decision to institute a constitutional dictatorship should never
be in the hands of the man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without
making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect…
7) The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination
of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete return
as possible to the political and governmental conditions existing prior to
the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of
an emergency, and he places great faith in the effectiveness of
congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light
of recent experience, were one in saying that, "the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and
hinder realistic analysis. It matters not whether the term "dictator" is used
in its normal sense (as applied to authoritarian rulers) or is employed to
embrace all chief executives administering emergency powers. However
used, "constitutional dictatorship" cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus,
they favored instead the "concept of constitutionalism" articulated by
Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain. While it
does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is
placed upon procedural limitations, and political responsibility. McIlwain
clearly recognized the need to repose adequate power in government.
And in discussing the meaning of constitutionalism, he insisted that
the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to
equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a
great and very significant difference. In associating constitutionalism
with "limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal
limits to arbitrary power and a complete political responsibility of
government to the governed.101
In the final analysis, the various approaches to emergency of the above
political theorists –- from Lock’s "theory of prerogative," to Watkins’
doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s
"principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas
of discretionary power to the Chief Executive, while insuring that such
powers will be exercised with a sense of political responsibility and under
effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission, in
drafting the 1987 Constitution, endeavored to create a government in
the concept of Justice Jackson’s "balanced power
structure."102 Executive, legislative, and judicial powers are dispersed to
the President, the Congress, and the Supreme Court, respectively. Each
is supreme within its own sphere. But none has the monopoly of power
in times of emergency. Each branch is given a role to serve as limitation
or check upon the other. This system does not weaken the President, it
just limits his power, using the language of McIlwain. In other words, in
times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the
Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
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A facial review of PP 1017, using the overbreadth doctrine, is uncalled
for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech cases, also
known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the AFP
to prevent or suppress all forms of lawless violence. In United States v.
Salerno,104the US Supreme Court held that "we have not recognized an
‘overbreadth’ doctrine outside the limited context of the First
Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity
of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion are
considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may
properly be held void on its face and when ‘such summary action’ is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction
moves from ‘pure speech’ toward conduct and that conduct –even if
expressive – falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words" and
again, that "overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which
is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks
an exception to some of the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their
own interests. In overbreadth analysis, those rules give way; challenges
are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling
is designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and defects,
not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether this
situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that
a litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and
application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do
hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power.
In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for
a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
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grants the President, as Commander-in-Chief, a "sequence" of
graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that
the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Office’s vast
intelligence network, she is in the best position to determine the actual
condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and rebellion.
This involves ordinary police action. But every act that goes beyond the
President’s calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser
power. There lies the wisdom of our Constitution, the greater the power,
the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
President’s authority to declare a "state of rebellion" (in Sanlakas) and
the authority to proclaim a state of national emergency. While President
Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made
to depend, shall be promulgated in proclamations which shall have the
force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state
of national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent
or suppress lawless violence, invasion or rebellion. She also relied on
Section 17, Article XII, a provision on the State’s extraordinary power to
take over privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without
legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which
will in any way render more difficult the restoration of order and the
enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March
13, 2006, Mr. Justice Vicente V. Mendoza, 114an authority in
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most
severe threat to civil liberties. It is a strong medicine which should not be
resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose
of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to
justify acts that only under a valid declaration of Martial Law can be
done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President Arroyo’s
calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure
that the laws be faithfully executed. This is based on Section 17, Article
VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested,115 the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, "execute its
laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country,117 including the Philippine National
Police118 under the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause "to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017
operative clause shows that it was lifted120 from Former President
Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience
to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III
of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of
a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties
as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring
a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend,
68
shall be promulgated in proclamations which shall have the force of an
executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to bring
to the attention of all or some of the departments, agencies, bureaus or
offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces
of the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which
are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as
it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives." To be sure,
neither Martial Law nor a state of rebellion nor a state of emergency can
justify President Arroyo’s exercise of legislative power by issuing
decrees.
Can President Arroyo enforce obedience to all decrees and laws through
the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to "laws," she cannot call the military to enforce
or implement certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and the like.
She can only order the military, under PP 1017, to enforce laws pertinent
to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders,
and regulations promulgated by me personally or upon my direction; and
as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to
enforce obedience "to all the laws and to all decrees x x x" but also to
act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public
interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with
public interest.
This provision was first introduced in the 1973 Constitution, as a product
of the "martial law" thinking of the 1971 Constitutional Convention. 122 In
effect at the time of its approval was President Marcos’ Letter of
Instruction No. 2 dated September 22, 1972 instructing the Secretary of
National Defense to take over "the management, control and operation
of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo’s inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to "other national emergency." If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency"
pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not intend that
Congress should first authorize the President before he can declare a
"state of national emergency." The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is
a different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are
to be construed together. Otherwise stated, different clauses, sections,
and provisions of a constitution which relate to the same subject matter
will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must
be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise
its powers, the Framers of our Constitution deemed it wise to allow
Congress to grant emergency powers to the President, subject to certain
conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that
the "the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest," it
refers to Congress, not the President. Now, whether or not the President
may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed
that express constitutional language grants this power to the President.
The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is
placed on provisions in Article II which say that "The executive Power
shall be vested in a President . . . .;" that "he shall take Care that the
Laws be faithfully executed;" and that he "shall be Commander-in-Chief
of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding
69
broad powers in military commanders engaged in day-to-day fighting in
a theater of war. Such cases need not concern us here. Even though
"theater of war" be an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander-in-Chief of the
Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping
production. This is a job for the nation’s lawmakers, not for its military
authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In
the framework of our Constitution, the President’s power to see that the
laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process
to the recommending of laws he thinks wise and the vetoing of laws he
thinks bad. And the Constitution is neither silent nor equivocal about who
shall make laws which the President is to execute. The first section of
the first article says that "All legislative Powers herein granted shall be
vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency"
under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are
the elements of intensity, variety, and perception.127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under
three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes.
What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man
or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of crisis no
matter how serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to
another department – unless we regard as legislating the carrying out of
a legislative policy according to prescribed standards; no, not even when
that Republic was fighting a total war, or when it was engaged in a life-
and-death struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme perils more
than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to
perform the duties and discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority
from Congress.
Let it be emphasized that while the President alone can declare a state
of national emergency, however, without legislation, he has no power to
take over privately-owned public utility or business affected with public
interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers
of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains
to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the
crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against
warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest
blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20th Anniversary of People Power I. The
arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing
Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided
and ransacked without warrant" their office. Three policemen were
assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were "turned away and dispersed" when
they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No.
5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on
the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may afford
an opportunity for abuse in the manner of application. 136 The validity of
a statute or ordinance is to be determined from its general purpose and
its efficiency to accomplish the end desired, not from its effects in a
particular case.137 PP 1017 is merely an invocation of the President’s
calling-out power. Its general purpose is to command the AFP to
suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue
PP 1021. But there is nothing in PP 1017 allowing the police, expressly
or impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.138 This is logical. Just
imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by
70
policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of
PP 1017. General orders are "acts and commands of the President in
his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficientadministration of
law. Such rules and regulations create no relation except between the
official who issues them and the official who receives them. 139 They are
based on and are the product of, a relationship in which power is their
source, and obedience, their object.140 For these reasons, one
requirement for these rules to be valid is that they must be reasonable,
not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is still
an amorphous and vague concept. Congress has yet to enact a law
defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the
international community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated
according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions – or threats of
the use of force as the most recent by the United States against Iraq –
consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of
acts of violence either by states, by armed groups such as liberation
movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist
is another country’s freedom fighter." The apparent contradiction or lack
of consistency in the use of the term "terrorism" may further be
demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of definition.
The organization has intensified its efforts recently, but has been unable
to bridge the gap between those who associate "terrorism" with any
violent act by non-state groups against civilians, state functionaries or
infrastructure or military installations, and those who believe in the
concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.
The dilemma facing the international community can best be illustrated
by reference to the contradicting categorization of organizations and
movements such as Palestine Liberation Organization (PLO) – which is
a terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the
perception of India, liberation fighters in that of Pakistan – the earlier
Contras in Nicaragua – freedom fighters for the United States, terrorists
for the Socialist camp – or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period
they were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way – because of opposing political interests
that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions
be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its
territory and will therefore speak of a "liberation struggle," not of
"terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision
on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance
how a particular armed movement (i.e. a non-state actor) is labeled in
regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the
unavoidable consequence.
This "definitional predicament" of an organization consisting of
sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – has become even more
serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers
of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the
terrorist attacks of 11 September 2001 I the United States. 141
The absence of a law defining "acts of terrorism" may result in abuse
and oppression on the part of the police or military. An illustration is when
a group of persons are merely engaged in a drinking spree. Yet the
military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can
only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e.,
in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled "Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define "acts
of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over
the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power
of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion
of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."142 The plain import of
the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand the
protective authority of a magistrate clothed with power to issue or refuse
to issue search warrants or warrants of arrest. 143
71
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought
at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated
brusquely by policemen who "held his head and tried to push him" inside
an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was
detained for seven (7) hours; and seventh,he was eventually released
for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner
David’s warrantless arrest. During the inquest for the charges of inciting
to sedition and violation of BP 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption
that petitioner David was the leader of the rally.146 Consequently, the
Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing
the subject t-shirt and even if he was wearing it, such fact is insufficient
to charge him with inciting to sedition. Further, he also stated that there
is insufficient evidence for the charge of violation of BP 880 as it was not
even known whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.
Section 4 of Article III guarantees:
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.
"Assembly" means a right on the part of the citizens to meet peaceably
for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right
to assemble is not subject to previous restraint or censorship. It may not
be conditioned upon the prior issuance of a permit or authorization from
the government authorities except, of course, if the assembly is intended
to be held in a public place, a permit for the use of such place, and not
for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting
officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable
assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded
as criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was 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. If the
persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and
order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a
criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis
of Malacañang’s directive canceling all permits previously issued by
local government units. This is arbitrary. The wholesale cancellation of
all permits to rally is a blatant disregard of the principle that "freedom of
assembly 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."149 Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger
that the State may deny the citizens’ right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion.
With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies
is lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.150 The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a person’s right
is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and
according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’ narration
of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o’ clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that
such raid was "meant to show a ‘strong presence,’ to tell media outlets
not to connive or do anything that would help the rebels in bringing down
this government." Director General Lomibao further stated that "if they
do not follow the standards –and the standards are if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 – we will recommend
a ‘takeover.’" National Telecommunications Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof or any member of
his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered
to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by
the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The
best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court
held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the fundamental
72
law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like
the "Metropolitan Mail" and "We Forum" newspapers in the above case,
yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication,
the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to
say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This
Court cannot tolerate the blatant disregard of a constitutional right even
if it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative democracy. It
is the duty of the courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted
that the search of the Tribune’s offices and the seizure of its materials
for publication and other papers are illegal; and that the same are
inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings
that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think
and I know, Your Honor, and these are inadmissible for any purpose. 155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go
there at 1 o’clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to
sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on
any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there are
remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police
were, according to the Solicitor General, illegal and cannot be condoned,
thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is
their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and
illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued.
Already, there have been media reports on April 30, 2006 that allegedly
PP 1017 would be reimposed "if the May 1 rallies" become "unruly and
violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future
constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017’s extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence
as well as decrees promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued
by the President – acting as Commander-in-Chief – addressed to
subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the
police should take only the "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFP’s authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is
also pristine clear that (1) the warrantless arrest of petitioners Randolf
S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the
imposition of standards on media or any prior restraint on the press; and
(4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their
day in court. The civil complaints or causes of action and/or relevant
criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military
the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in
breadth and intensity from normal times, yet they should not be arbitrary
as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is possible
to grant government the authority to cope with crises without
73
surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility
of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take over privately-
owned public utility or business affected with public interest without prior
legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of terrorism"
have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of
prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication
and other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
CASE 11
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.
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
74
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;
75
(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
76
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
between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy
of freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
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
77
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,
78
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, Sec. 4. Permit when
November 9, 1983, required and when not
125 SCRA 553, 569) required.-- A written permit
8. By way of a summary. shall be required for any
The applicants for a permit person or persons to
to hold an assembly should organize and hold a public
inform the licensing assembly in a public place.
authority of the date, the However, no permit shall
public place where and the be required if the public
time when it will take place. assembly shall be done or
If it were a private place, made in a freedom park
only the consent of the duly established by law or
owner or the one entitled to ordinance or in private
its legal possession is property, in which case
required. Such application only the consent of the
should be filed well ahead owner or the one entitled to
in time to enable the public its legal possession is
official concerned to required, or in the campus
appraise whether there of a government-owned
may be valid objections to and operated educational
the grant of the permit or to institution which shall be
its grant but at another subject to the rules and
public place. It is an regulations of said
indispensable condition to educational institution.
such refusal or modification Political meetings or rallies
that the clear and present held during any election
danger test be the standard campaign period as
for the decision reached. If provided for by law are not
he is of the view that there covered by this Act.
is such an imminent and Sec. 5. Application
grave danger of a requirements.-- All
substantive evil, the applications for a permit
applicants must be heard shall comply with the
on the matter. Thereafter, following guidelines:
his decision, whether (a) The applications shall
favorable or adverse, must be in writing and shall
be transmitted to them at include the names of the
the earliest opportunity. leaders or organizers; the
Thus if so minded, they can purpose of such public
have recourse to the proper assembly; the date, time
judicial authority. 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
79
 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
appropriate court within subject to certain restrictions, but these shall only be such as are
forty-eight (48) hours after provided by law and are necessary:
receipt of the same. No (a) For respect of the rights or reputations of others;
appeal bond and record on (b) For the protection of national security or of public order (ordre public),
appeal shall be required. A or of public health or morals.
decision granting such Contrary to petitioner’s claim, the law is very clear and is nowhere vague
permit or modifying it in in its provisions. "Public" does not have to be defined. Its ordinary
terms satisfactory to the meaning is well-known. Webster’s Dictionary defines it, thus:23
applicant shall be public, n, x x x 2a: an organized body of people x x x 3: a group of people
immediately executory. distinguished by common interests or characteristics x x x.
(g) All cases filed in court Not every expression of opinion is a public assembly. The law refers to
under this section shall be "rally, demonstration, march, parade, procession or any other form of
decided within twenty-four mass or concerted action held in a public place." So it does not cover
(24) hours from date of any and all kinds of gatherings.
filing. Cases filed Neither is the law overbroad. It regulates the exercise of the right to
hereunder shall be peaceful assembly and petition only to the extent needed to avoid a clear
immediately endorsed to and present danger of the substantive evils Congress has the right to
the executive judge for prevent.
disposition or, in his There is, likewise, no prior restraint, since the content of the speech is
absence, to the next in not relevant to the regulation.
rank. As to the delegation of powers to the mayor, the law provides a precise
(h) In all cases, any and sufficient standard – the clear and present danger test stated in Sec.
decision may be appealed 6(a). The reference to "imminent and grave danger of a substantive evil"
to the Supreme Court. in Sec. 6(c) substantially means the same thing and is not an
(i) Telegraphic appeals to inconsistent standard. As to whether respondent Mayor has the same
be followed by formal power independently under Republic Act No. 716024 is thus not
appeals are hereby necessary to resolve in these proceedings, and was not pursued by the
allowed. parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of alternative forum through the creation of freedom parks where no prior
public assemblies but a restriction that simply regulates the time, place permit is needed for peaceful assembly and petition at any time:
and manner of the assemblies. This was adverted to in Osmeña v. Sec. 15. Freedom parks. – Every city and municipality in the country
Comelec,20 where the Court referred to it as a "content-neutral" shall within six months after the effectivity of this Act establish or
regulation of the time, place, and manner of holding public assemblies.21 designate at least one suitable "freedom park" or mall in their respective
A fair and impartial reading of B.P. No. 880 thus readily shows that it jurisdictions which, as far as practicable, shall be centrally located within
refers to all kinds of public assemblies22 that would use public places. the poblacion where demonstrations and meetings may be held at any
The reference to "lawful cause" does not make it content-based because time without the need of any prior permit.
assemblies really have to be for lawful causes, otherwise they would not In the cities and municipalities of Metropolitan Manila, the respective
be "peaceable" and entitled to protection. Neither are the words mayors shall establish the freedom parks within the period of six months
"opinion," "protesting" and "influencing" in the definition of public from the effectivity this Act.
assembly content based, since they can refer to any subject. The words This brings up the point, however, of compliance with this provision.
"petitioning the government for redress of grievances" come from the The Solicitor General stated during the oral arguments that, to his
wording of the Constitution, so its use cannot be avoided. Finally, knowledge, only Cebu City has declared a freedom park – Fuente
maximum tolerance is for the protection and benefit of all rallyists and is Osmeña.
independent of the content of the expressions in the rally. That of Manila, the Sunken Gardens, has since been converted into a
Furthermore, the permit can only be denied on the ground of clear and golf course, he added.
present danger to public order, public safety, public convenience, public If this is so, the degree of observance of B.P. No. 880’s mandate that
morals or public health. This is a recognized exception to the exercise every city and municipality set aside a freedom park within six months
of the right even under the Universal Declaration of Human Rights and from its effectivity in 1985, or 20 years ago, would be pathetic and
the International Covenant on Civil and Political Rights, thus: regrettable. The matter appears to have been taken for granted amidst
Universal Declaration of Human Rights the swell of freedom that rose from the peaceful revolution of 1986.
Article 20 Considering that the existence of such freedom parks is an essential part
1. Everyone has the right to freedom of peaceful assembly and of the law’s system of regulation of the people’s exercise of their right to
association. peacefully assemble and petition, the Court is constrained to rule that
xxx after thirty (30) days from the finality of this Decision, no prior permit may
Article 29 be required for the exercise of such right in any public park or plaza of a
1. Everyone has duties to the community in which alone the free and full city or municipality until that city or municipality shall have complied with
development of his personality is possible. Section 15 of the law. For without such alternative forum, to deny the
2. In the exercise of his rights and freedoms, everyone shall be subject permit would in effect be to deny the right. Advance notices should,
only to such limitations as are determined by law solely for the purpose however, be given to the authorities to ensure proper coordination and
of securing due recognition and respect for the rights and freedoms of orderly proceedings.
others and of meeting the just requirements of morality, public order and The Court now comes to the matter of the CPR. As stated earlier, the
the general welfare in a democratic society. Solicitor General has conceded that the use of the term should now be
3. These rights and freedoms may in no case be exercised contrary to discontinued, since it does not mean anything other than the maximum
the purposes and principles of the United Nations. tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit
The International Covenant on Civil and Political Rights of respondent Executive Secretary Eduardo Ermita, submitted by the
Article 19. Solicitor General, thus:
1. Everyone shall have the right to hold opinions without interference. 14. The truth of the matter is the policy of "calibrated preemptive
2. Everyone shall have the right to freedom of expression; this right shall response" is in consonance with the legal definition of "maximum
include freedom to seek, receive and impart information and ideas of all tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
kinds, regardless of frontiers, either orally, in writing or in print, in the degree of restraint that the military, police and other peacekeeping
form of art, or through any other media of his choice. authorities shall observe during a public assembly or in the dispersal of
the same." Unfortunately, however, the phrase "maximum tolerance"
80
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.1avvphil.net Towards this end, law enforcement agencies
shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and
units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any
kind of firearms but may be equipped with baton or riot sticks, shields,
crash helmets with visor, gas masks, boots or ankle high shoes with shin
guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot
device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate destruction
of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly
with a permit shall be dispersed. However, when an assembly becomes
violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the
public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public assembly will be
dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants
of the public assembly, and after allowing a reasonable period of time to
lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made
during the public assembly unless he violates during the assembly a law,
statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during
the public assembly 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 to heightenedscrutiny."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
81
Section 15 of the law, all public parks and plazas of the municipality or
city concerned shall in effect be deemed freedom parks; no prior permit
of whatever kind shall be required to hold an assembly therein. The only
requirement will be written notices to the police and the mayor’s office to
allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents,
more particularly the Secretary of the Interior and Local Governments,
are DIRECTED to take all necessary steps for the immediate
compliance with Section 15 of Batas Pambansa No. 880 through the
establishment or designation of at least one suitable freedom park or
plaza in every city and municipality of the country. After thirty (30) days
from the finality of this Decision, subject to the giving of advance notices,
no prior permit shall be required to exercise the right to peaceably
assemble and petition in the public parks or plazas of a city or
municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it
would purport to differ from or be in lieu of maximum tolerance,
is NULL and VOID and respondents are ENJOINED to REFRAIN from
using it and to STRICTLY OBSERVE the requirements of maximum
tolerance. The petitions are DISMISSED in all other respects, and
the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
CASE 12
G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON
REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much.
That would be a mere shadow of freedom. The test of its substance is
the right to differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to
choose is that others may make different choices – choices we would
not make for ourselves, choices we may disapprove of, even choices
that may shock or offend or anger us. However, choices are not to be
legally prohibited merely because they are different, and the right to
disagree and debate about important questions of public policy is a core
value protected by our Bill of Rights. Indeed, our democracy is built on
genuine recognition of, and respect for, diversity and difference in
opinion.
Since ancient times, society has grappled with deep disagreements
about the definitions and demands of morality. In many cases, where
moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox –
philosophical justifications about what is moral are indispensable and
yet at the same time powerless to create agreement. This Court
recognizes, however, that practical solutions are preferable to
ideological stalemates; accommodation is better than intransigence;
reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with
an application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 20092 (the
First Assailed Resolution) and December 16, 20093 (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again
filed a Petition5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity;
that LGBTs are victims of exclusion, discrimination, and violence; that
because of negative societal attitudes, LGBTs are constrained to hide
their sexual orientation; and that Ang Ladlad complied with the 8-point
guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections.6 Ang Ladlad laid out its national
membership base consisting of individual members and organizational
supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the
COMELEC (Second Division) dismissed the Petition on moral grounds,
stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the
Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community,
thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals
of a different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27,
Paul wrote:
For this cause God gave them up into vile affections, for even their
women did change the natural use into that which is against nature: And
likewise also the men, leaving the natural use of the woman, burned in
their lust one toward another; men with men working that which is
unseemly, and receiving in themselves that recompense of their error
which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed
a people transgressing beyond bounds." (7.81) "And we rained down on
them a shower (of brimstone): Then see what was the end of those who
indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me
against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated
October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated
in the Petition’s par. 6F: ‘Consensual partnerships or relationships by
gays and lesbians who are already of age’. It is further indicated in par.
24 of the Petition which waves for the record: ‘In 2007, Men Having Sex
with Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil
Code and the Revised Penal Code are deemed part of the requirement
to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as ‘Any act, omission, establishment, business, condition of
property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting
parties may establish such stipulations, clauses, terms and conditions
as they may deem convenient, provided they are not contrary to
law, morals, good customs, public order or public policy. Art 1409 of the
Civil Code provides that ‘Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy’ are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised
Penal Code, as amended, penalizes ‘Immoral doctrines, obscene
publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. — The penalty of prision mayor or a fine ranging from
six thousand to twelve thousand pesos, or both such imprisonment and
fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge
in any form; the editors publishing such literature; and the
owners/operators of the establishment selling the same;
82
(b) Those who, in theaters, fairs, cinematographs or any other place,
exhibit indecent or immoral plays, scenes, acts or shows, it being
understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by
virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to
abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings,
sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful when it
said that it "or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the
elections."
Furthermore, should this Commission grant the petition, we will be
exposing our youth to an environment that does not conform to the
teachings of our faith. Lehman Strauss, a famous bible teacher and
writer in the U.S.A. said in one article that "older practicing homosexuals
are a threat to the youth." As an agency of the government, ours too is
the State’s avowed duty under Section 13, Article II of the Constitution
to protect our youth from moral and spiritual degradation. 8
When Ang Ladlad sought reconsideration,9 three commissioners voted
to overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for
the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list
system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a
whole.
Section 2 of the party-list law unequivocally states that the purpose of
the party-list system of electing congressional representatives is to
enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is
not a tool to advocate tolerance and acceptance of misunderstood
persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests
are also the nation’s – only that their interests have not been brought to
the attention of the nation because of their under representation. Until
the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will remain just
that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a "special class" of individuals.
x x x Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that "nothing in the U.S.
Constitution discloses a comparable intent to protect or promote the
social or legal equality of homosexual relations," as in the case of race
or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of
LGBT’s is elevated, there can be no denying that Ladlad constituencies
are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or
Muslim religious practices. Neither is there any attempt to any particular
religious group’s moral rules on Ladlad. Rather, what are being adopted
as moral parameters and precepts are generally accepted public morals.
They are possibly religious-based, but as a society, the Philippines
cannot ignore its more than 500 years of Muslim and Christian
upbringing, such that some moral precepts espoused by said religions
have sipped [sic] into society and these are not publicly accepted moral
norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law
of the land. Article 201 of the Revised Penal Code imposes the penalty
of prision mayor upon "Those who shall publicly expound or proclaim
doctrines openly contrary to public morals." It penalizes "immoral
doctrines, obscene publications and exhibition and indecent shows."
"Ang Ladlad" apparently falls under these legal provisions. This is clear
from its Petition’s paragraph 6F: "Consensual partnerships or
relationships by gays and lesbians who are already of age’ It is further
indicated in par. 24 of the Petition which waves for the record: ‘In
2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which shocks,
defies or disregards decency or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlad’s application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing
the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General
(OSG) to file its Comment on behalf of COMELEC not later than 12:00
noon of January 11, 2010.11 Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later
filed a Comment in support of petitioner’s application.13 Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we required
it to file its own comment.14 The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on January 12, 2010, effective immediately
and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed
Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR)
filed a Motion to Intervene or to Appear as Amicus Curiae, attaching
thereto its Comment-in-Intervention.17 The CHR opined that the denial
of Ang Ladlad’spetition on moral grounds violated the standards and
principles of the Constitution, the Universal Declaration of Human Rights
(UDHR), and the International Covenant on Civil and Political Rights
(ICCPR). On January 19, 2010, we granted the CHR’s motion to
intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene18 which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified
the exclusion by using religious dogma, violated the constitutional
guarantees against the establishment of religion. Petitioner also claimed
that the Assailed Resolutions contravened its constitutional rights to
privacy, freedom of speech and assembly, and equal protection of laws,
as well as constituted violations of the Philippines’ international
obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration since
there was no basis for COMELEC’s allegations of immorality. It also
opined that LGBTs have their own special interests and concerns which
should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioner’s
freedom of speech, expression, and assembly were concerned, the
OSG maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have
a concrete and genuine national political agenda to benefit the nation
and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors
enumerated by the Constitution and RA 7941, and that petitioner made
83
untruthful statements in its petition when it alleged its national existence
contrary to actual verification reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act
No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution
and RA 7941, nor is it associated with or related to any of the sectors in
the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani
stands for the proposition that only those sectors specifically
enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections,20 "the enumeration of marginalized and under-represented
sectors is not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies
with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in
its petition when it alleged that it had nationwide existence through its
members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few
isolated places in the country, petitioner does not exist in almost all
provinces in the country."21
This argument that "petitioner made untruthful statements in its petition
when it alleged its national existence" is a new one; previously, the
COMELEC claimed that petitioner was "not being truthful when it said
that it or any of its nominees/party-list representatives have not violated
or failed to comply with laws, rules, or regulations relating to the
elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions.
This, in itself, is quite curious, considering that the reports of petitioner’s
alleged non-existence were already available to the COMELEC prior to
the issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in respondent’s
theory, and a serious violation of petitioner’s right to procedural due
process.
Nonetheless, we find that there has been no misrepresentation. A
cursory perusal of Ang Ladlad’s initial petition shows that it never
claimed to exist in each province of the Philippines. Rather, petitioner
alleged that the LGBT community in the Philippines was estimated to
constitute at least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its electronic
discussion group.22 Ang Ladlad also represented itself to be "a national
LGBT umbrella organization with affiliates around the Philippines
composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality (GALANG) –
Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELEC’s findings are to
be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register
as a party-list organization under any of the requisites under RA 7941 or
the guidelines in Ang Bagong Bayani. The difference, COMELEC
claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be
made respecting an establishment of religion, or prohibiting the free
exercise thereof." At bottom, what our non-establishment clause calls for
is "government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize the Bible and the
Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is able
to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular
purposes and in ways that have primarily secular effects. As we held in
Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular,
not religious as the dissent of Mr. Justice Carpio holds. "Religious
teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard
as religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would
tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for
all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society" and not because
the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a
compelling influence on those engaged in public deliberations over what
actions would be considered a moral disapprobation punishable by law.
After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual
institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or Aquinian
or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the
religion clauses. x x x Recognizing the religious nature of the Filipinos
and the elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must
84
pursue its secular goals and interests but at the same time strive to
uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws
is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it has
long been transplanted into generally accepted public morals. The
COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their
group consists of LGBTs but because of the danger it poses to the
people especially the youth. Once it is recognized by the government, a
sector which believes that there is nothing wrong in having sexual
relations with individuals of the same gender is a bad example. It will
bring down the standard of morals we cherish in our civilized society.
Any society without a set of moral precepts is in danger of losing its own
existence.28
We are not blind to the fact that, through the years, homosexual conduct,
and perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure
– religious beliefs, convictions about the preservation of marriage,
family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these "generally accepted public morals" have not
been convincingly transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt immoral
act performed by Ang Ladlad. Even the OSG agrees that "there should
have been a finding by the COMELEC that the group’s members have
committed or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender,
of a different gender, or more than one gender, but mere attraction does
not translate to immoral acts. There is a great divide between thought
and action. Reduction ad absurdum. If immoral thoughts could be
penalized, COMELEC would have its hands full of disqualification cases
against both the "straights" and the gays." Certainly this is not the
intendment of the law.31
Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth. Neither
has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that
the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates
who, undoubtedly with the loftiest of intentions, situate morality on one
end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our
penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of
the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or
disregards decency or morality," the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil
action, or abatement without judicial proceedings.32 A violation of Article
201 of the Revised Penal Code, on the other hand, requires proof
beyond reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of
liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from
participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a tool
to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC
targets homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides "nor shall any person be denied equal protection of the laws,"
courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment
of similar persons."33 The equal protection clause guarantees that no
person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same
place and in like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v.
Banko Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the
standard of analysis of equal protection challenges x x x have followed
the ‘rational basis’ test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a
showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population
considers homosexual conduct as immoral and unacceptable, and this
constitutes sufficient reason to disqualify the petitioner. Unfortunately for
the respondent, the Philippine electorate has expressed no such belief.
No law exists to criminalize homosexual behavior or expressions or
parties about homosexual behavior. Indeed, even if we were to assume
that public opinion is as the COMELEC describes it, the asserted state
interest here – that is, moral disapproval of an unpopular minority – is
not a legitimate state interest that is sufficient to satisfy rational basis
review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation,
furthers no legitimate state interest other than disapproval of or dislike
for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual,
and transgender have the same interest in participating in the party-list
system on the same basis as other political parties similarly situated.
State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they
deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC’s act of differentiating
LGBTs from heterosexuals insofar as the party-list system is concerned
does not imply that any other law distinguishing between heterosexuals
and homosexuals under different circumstances would similarly fail. We
disagree with the OSG’s position that homosexuals are a class in
themselves for the purposes of the equal protection clause.38 We are not
prepared to single out homosexuals as a separate class meriting special
or differentiated treatment. We have not received sufficient evidence to
this effect, and it is simply unnecessary to make such a ruling today.
Petitioner itself has merely demanded that it be recognized under the
same basis as all other groups similarly situated, and that the COMELEC
made "an unwarranted and impermissible classification not justified by
the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its
agenda and attempt to persuade society of the validity of its position
through normal democratic means.39 It is in the public square that deeply
held convictions and differing opinions should be distilled and
deliberated upon. As we held in Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has
access to the public square where people deliberate the order of their
life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal
access to the public square. In this representative democracy, the state
is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws
will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of adopting
and accepting a constitution and the limits it specifies – including
85
protection of religious freedom "not only for a minority, however small –
not only for a majority, however large – but for each of us" – the majority
imposes upon itself a self-denying ordinance. It promises not to do what
it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace. Otherwise
stated, the COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or discouraging a
disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.41 European
and United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy
and equal protection provisions in foreign and international texts. 42 To
the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the
Court’s analysis.
In the area of freedom of expression, for instance, United States courts
have ruled that existing free speech doctrines protect gay and lesbian
rights to expressive conduct. In order to justify the prohibition of a
particular expression of opinion, public institutions must show that their
actions were caused by "something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an
unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and
beliefs, in Europe, with its vibrant human rights tradition, the European
Court of Human Rights (ECHR) has repeatedly stated that a political
party may campaign for a change in the law or the constitutional
structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge the existing
order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the
right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population.44 A
political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of
satisfying everyone concerned.45 Only if a political party incites violence
or puts forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee. 46
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They are
entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent
to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community
to exclude from consideration the values of other members of the
community.
Of course, none of this suggests the impending arrival of a golden age
for gay rights litigants. It well may be that this Decision will only serve to
highlight the discrepancy between the rigid constitutional analysis of this
Court and the more complex moral sentiments of Filipinos. We do not
suggest that public opinion, even at its most liberal, reflect a clear-cut
strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this
Decision.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have
not been deprived of their right to voluntarily associate, then there has
been no restriction on their freedom of expression or association. The
OSG argues that:
There was no utterance restricted, no publication censored, or any
assembly denied. [COMELEC] simply exercised its authority to review
and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot
be said to be a transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the
members of the petitioner to freely take part in the conduct of elections.
Their right to vote will not be hampered by said denial. In fact, the right
to vote is a constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner
contends that the denial of Ang Ladlad’s petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through
engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but
a privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced
by the OSG itself – the moral objection offered by the COMELEC was
not a limitation imposed by law. To the extent, therefore, that the
petitioner has been precluded, because of COMELEC’s action, from
publicly expressing its views as a political party and participating on an
equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of
petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope
and promise, international human rights law, in particular, has grown
dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural
and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic
legal systems so that such norms may become actual, rather than ideal,
standards of conduct.
Our Decision today is fully in accord with our international obligations to
protect and promote human rights. In particular, we explicitly recognize
the principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR,
as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of
general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article
26 of the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to "sex" in Article 26 should be construed to include
"sexual orientation."48Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to be
prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
As stated by the CHR in its Comment-in-Intervention, the scope of the
right to electoral participation is elaborated by the Human Rights
86
Committee in its General Comment No. 25 (Participation in Public Affairs CASE 13
and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every G.R. No. 209185 February 25, 2014
citizen to take part in the conduct of public affairs, the right to vote and MARC DOUGLAS IV C. CAGAS, Petitioner,
to be elected and the right to have access to public service. Whatever vs.
form of constitution or government is in force, the Covenant requires COMMISSION ON ELECTIONS, represented by its CHAIRMAN, ATTY.
States to adopt such legislative and other measures as may be SIXTO BRILLANTES, JR., and the PROVINCIAL ELECTION OFFICER
necessary to ensure that citizens have an effective opportunity to enjoy OF DAVAO DEL SUR, represented by ATTY. MA. FEBES
the rights it protects. Article 25 lies at the core of democratic government BARLAAN,Respondents.
based on the consent of the people and in conformity with the principles RESOLUTION
of the Covenant. CARPIO, J.:
xxxx On 26 November 2013, we issued a Resolution directing petitioner Marc
15. The effective implementation of the right and the opportunity to stand Douglas IV C. Cagas (Cagas) to explain why he should not be cited in
for elective office ensures that persons entitled to vote have a free choice contempt of court for the letter1 he sent to Court Administrator Jose
of candidates. Any restrictions on the right to stand for election, such as Midas Marquez (Court Administrator Marquez).2
minimum age, must be justifiable on objective and reasonable criteria. Cagas, this time assisted by Atty. Raquel V. Aspiras-Sanchez of Aspiras
Persons who are otherwise eligible to stand for election should not be and Aspiras Law Offices, and without indicating the date of his receipt of
excluded by unreasonable or discriminatory requirements such as our Resolution, posted his Compliance on 9 January 2014.
education, residence or descent, or by reason of political affiliation. No The contents of Cagas’ Compliance are reproduced below:
person should suffer discrimination or disadvantage of any kind because COMPLIANCE
of that person's candidacy. States parties should indicate and explain Petitioner MARC DOUGLAS IV C. CAGAS, by himself and with the
the legislative provisions which exclude any group or category of assistance of the undersigned counsel by way of special appearance, in
persons from elective office.50 compliance with the show-cause order embodied in the Honorable
We stress, however, that although this Court stands willing to assume Court’s resolution dated November 16, 2013, respectfully states:
the responsibility of giving effect to the Philippines’ international law 1. The aforesaid resolution directs [Cagas] to show cause why he should
obligations, the blanket invocation of international law is not the panacea not be held in contempt of court for innuendoes against the Honorable
for all social ills. We refer now to the petitioner’s invocation of the Court en banc contained in a letter he wrote to Atty. Jose Midas
Yogyakarta Principles (the Application of International Human Rights Marquez, presently the Court Administrator of the Supreme Court.
Law In Relation to Sexual Orientation and Gender Identity),51 which 2. With all due respect, the letter was a personal communication made
petitioner declares to reflect binding principles of international law. by [Cagas] to a friend—thus the use of the words "pards" and "pare"—
At this time, we are not prepared to declare that these Yogyakarta and was not meant nor intended to be an official communication to Atty.
Principles contain norms that are obligatory on the Philippines. There Marquez in his capacity as Court Administrator of the Honorable Court.
are declarations and obligations outlined in said Principles which are not 3. Be that as it may, [Cagas] sincerely apologizes to the Court en banc
reflective of the current state of international law, and do not find basis and to all its members for the unfortunate language used in the letter, in
in any of the sources of international law enumerated under Article 38(1) particular in its first paragraph.
of the Statute of the International Court of Justice. 52 Petitioner has not 4. With deep regret, [Cagas] admits that the said first paragraph
undertaken any objective and rigorous analysis of these alleged expressed his emotional exasperation at the time the letter was written.
principles of international law to ascertain their true status. [Cagas] got carried away by his passion and desire to improve the lot of
We also hasten to add that not everything that society – or a certain his home province and its people, and for this he is truly sorry and takes
segment of society – wants or demands is automatically a human right. full responsibility.
This is not an arbitrary human intervention that may be added to or 5. In mitigation, [Cagas] respectfully submits that he did not mean nor
subtracted from at will. It is unfortunate that much of what passes for intend the letter to be an affront or a sign of disrespect to the Honorable
human rights today is a much broader context of needs that identifies Court. Far from being that, the letter, in its entirety, actually shows
many social desires as rights in order to further claims that international [Cagas’] belief in the fairness of the court and its members. [Cagas]
law obliges states to sanction these innovations. This has the effect of may have expressed himself poorly, but in the second paragraph of the
diluting real human rights, and is a result of the notion that if "wants" are letter, he communicates his continuing faith in the Court’s capacity to act
couched in "rights" language, then they are no longer on the truth, hence his request for Atty. Marquez to show the DVDs to
controversial.1avvphi1 the justices "para malaman nila ang totoo."
Using even the most liberal of lenses, these Yogyakarta Principles, 6. Once again, [Cagas] sincerely apologizes for whatever innuendoes
consisting of a declaration formulated by various international law against the Court his rather emotional, but personal, letter to Atty.
professors, are – at best – de lege ferenda – and do not constitute Marquez may have communicated. [Cagas] is truly sorry for that, and
binding obligations on the Philippines. Indeed, so much of contemporary begs the leniency and liberality of the Honorable Court. He means the
international law is characterized by the "soft law" nomenclature, i.e., Court and its members no disrespect, and continues to hold them in the
international law is full of principles that promote international highest esteem and regard.
cooperation, harmony, and respect for human rights, most of which PRAYER
amount to no more than well-meaning desires, without the support of WHEREFORE, it is respectfully prayed that [Cagas’] apologies be
either State practice or opinio juris.53 accepted and that the foregoing be considered as satisfactory
As a final note, we cannot help but observe that the social issues compliance with the Honorable Court’s show cause order in its
presented by this case are emotionally charged, societal attitudes are in November 26, 2013 resolution.
flux, even the psychiatric and religious communities are divided in Petitioner prays for other just and equitable relief.
opinion. This Court’s role is not to impose its own view of acceptable Respectfully submitted. Pasig City for Manila.
behavior. Rather, it is to apply the Constitution and laws as best as it January 9, 2014.
can, uninfluenced by public opinion, and confident in the knowledge that [Signed]
our democracy is resilient enough to withstand vigorous debate. MARC DOUGLAS IV C. CAGAS
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of By and for himself as Petitioner
the Commission on Elections dated November 11, 2009 and December Balintawak Street, Digos City
16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Assisted by:
Commission on Elections is directed to GRANT petitioner’s application ASPIRAS & ASPIRAS LAW OFFICES
for party-list accreditation. By Special Appearance
SO ORDERED. 1009 Prestige Tower, Emerald Avenue
Ortigas Center, 1605 Pasig City
[Signed]
RAQUEL V. ASPIRAS-SANCHEZ
ATTORNEY’s ROLL NO. 39281
MCLE NO. IV – 0018383 / April 23, 2013
87
IBP No. 950691 / 01.06.2014/Pasig City hand, an insult hurled to the court, even after a case is decided, can
PTR No. 9844998 / 01.09.2014/ Pasig City under no circumstance be justified. Mere criticism or comment on the
We find Cagas’ explanation in his Compliance unsatisfactory. Although correctness or wrongness, soundness or unsoundness of the decision
he proffers his apologies and regrets to the Court, we find that his of the court in a pending case made in good faith may be tolerated; but
explanation is less than candid. to hurl the false charge that the Supreme Court has been committing
To exculpate himself from liability, Cagas states that his emotional deliberately so many blunders and injustices would tend necessarily to
outburst was contained in a personal letter addressed to a friend, who undermine the confidence of the people in the honesty and integrity of
happens to be Court Administrator Marquez. However, Cagas cannot its members, and consequently to lower or degrade the administration
raise the defense of privacy of communication, especially after his of justice, and it constitutes contempt.8
admission that he requested Court Administrator Marquez to show the We appreciate that Cagas takes "full responsibility" for his "emotional,
DVDs to the members of this Court. but personal" message to Court Administrator Marquez.
Cagas had to admit this since in his letter to Court Administrator For his exploitation of Court Administrator Marquez's position and for his
Marquez he actually asked the latter thus: "x x x ipapanood mo please defamatory statements against the Court in general and to the ponente
sa mga A. Justices para malaman nila ang totoo." In any event, in particular in his letter to Court Administrator Marquez, we hold Cagas
messages addressed to the members of the Court, regardless of media guilty of indirect contempt of court under Section 3(c) and (d), Rule 71
or even of intermediary, in connection with the performance of their of the 1997 Rules of Civil Procedure as amended, thus:
judicial functions become part of the judicial record and are a matter of Section 3. Indirect contempt to be punished after charge and hearing. -
concern for the entire Court.3 After a charge in writing has been filed, and an opportunity given to the
The fact that said letters are not technically considered pleadings, nor respondent to comment thereon within such period as may be fixed by
the fact that they were submitted after the main petition had been finally the court and to be heard by himself or counsel, a person guilty of any
resolved does not detract from the gravity of contempt committed. The of the following acts may be punished for indirect contempt;
constitutional right of freedom of speech or right to privacy cannot be xxxx
used as a shield for contemptuous acts against the Court.4 (c) Any abuse of or any unlawful interference with the processes or
Cagas clearly wanted to exploit his seeming friendly ties with Court proceedings of a court not constituting direct contempt under Section 1
Administrator Marquez and have pards utilize his official connections. of this Rule;
Instead of filing a pleading, Cagas sent a package containing the letter (d) Any improper conduct tending, directly or indirectly, to impede,
and DVDs to Court Administrator Marquez’s office address, with the obstruct, or degrade the administration of justice;
intent of having the contents of the DVDs viewed by the members of this xxxx
Court. Cagas impressed upon Court Administrator Marquez their WHEREFORE, considering the circumstances of the present case, Marc
friendship, which is underscored by the use of pards and pare. Cagas Douglas IV C. Cagas is declared GUILTY of indirect contempt of court.
also attempted to sway the members of this Court through the He is fined ₱10,000.00 for each offense, for a total of ₱20,000.00, and
intercession of his friend who, to his imagined convenience, is an official warned that a repetition of similar acts will warrant a more severe
of the Judiciary. penalty.
The Court does not countenance this kind of behavior. Indeed, Cagas’ SO ORDERED.
exploitation of Court Administrator Marquez’s position is deplorable and
is a prime example of an attitude that blatantly disregards Court
processes. Despite Cagas’ claim that his letter to Court Administrator
Marquez was merely personal, and not official, communication, his
admission that he requested Court Administrator Marquez to show the
DVDs to the justices via special de abot, is also an admission that he
tried to take advantage of Court Administrator Marquez’s position to gain
access to the members of this Court outside of the regular Court
processes. Court Administrator Marquez, meanwhile, had the duty to
properly indorse to the appropriate office all communication relating to
the Court.5
We also remind Cagas that this Court’s decisions, though assigned to
be written by one Justice, are always collegial. This Court was
unanimous6 in its Decision to dismiss Cagas’ Petition for Prohibition for
lack of merit. Apart from his emotional exasperation, Cagas offered no
further explanation for his statement about the "level of deceitfulness" of
the ponente and that the decision can "poison the minds of law
students." He then points to his "continuing faith in the Court’s capacity
to act on the truth," hence his admission that he requested Court
Administrator Marquez to distribute the DVDs to the members of this
Court.
The making of contemptuous statements directed against the Court is
an abuse of the right to free speech7 and degrades the administration of
justice. Hence, the defamatory statements in the letter impaired public
confidence in the integrity of the judiciary and not just of the ponente
alone.
Generally, criticism of a court’s rulings or decisions is not improper, and
may not be restricted after a case has been finally disposed of and has
ceased to be pending. So long as critics confine their criticisms to facts
and base them on the decisions of the court, they commit no contempt
no matter how severe the criticism may be; but when they pass beyond
that line and charge that judicial conduct was influenced by improper,
corrupt, or selfish motives, or that such conduct was affected by political
prejudice or interest, the tendency is to create distrust and destroy the
confidence of the people in their courts.
Moreover, it has been held that criticism of courts after a case is finally
disposed of, does not constitute contempt and, to this effect, a case may
be said to be pending so long as there is still something for the court to
do therein. But criticism should be distinguished from insult.1âwphi1 A
criticism after a case has been disposed of can no longer influence the
court, and on that ground it does not constitute contempt. On the other
88