infringement of the constitutional right, and remedy can be had at
2ND EXAM – Constitutional Law II the courts.
Xandredg Sumpt L. Latog
I. FREEDOM OF EXPRESSION
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.
What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on
Elections, 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.
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 [Chavez v. Gonzales].
Specifically, in Eastern Broadcasting Corporation (DYRE)
v. Dans, 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.
A. PRIOR RESTRAINT AND SUBSEQUENT
PUNISHMENT
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; (3)
freedom of access to information; and (4) freedom of circulation,
Prior restraint refers to official governmental restrictions
on the press or other forms of expression in advance of actual
publication or dissemination. 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. Any law or official that requires some form of
permission to be had before publication can be made, commits an
Ang Ladlad v. COMELEC
Held: 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.
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.
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, and “any act that restrains
speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows,” 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; or (2) a content-
based restraint or censorship, i.e., the restriction is based on the
subject matter of the utterance or speech. 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. 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. 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.
1-UTAK v. COMELEC
Held: The assailed prohibition on posting election campaign
materials is an invalid content-neutral regulation repugnant to the free
speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6)
of Resolution No. 9615 may incidentally restrict the right to free speech of
owners of PUVs and transport terminals, the same is nevertheless
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constitutionally permissible since it is a valid content-neutral regulation.
The Court does not agree.
Section 7(g) items (5) and (6) of Resolution No. 9615 are
content-neutral regulations since they merely control the place where
election campaign materials may be posted. However, the prohibition is
still repugnant to the free speech clause as it fails to satisfy all of the
requisites for a valid content-neutral regulation.
Section 4, Article IX-C of the Constitution only grants
COMELEC supervisory and regulatory powers over the enjoyment or
utilization "of all franchises or permits for the operation," inter alia, of
transportation and other public utilities. The COMELEC's constitutionally
delegated powers of supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals, but only to the franchise
or permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No.
9615 are not within the constitutionally delegated power of the COMELEC
to supervise or regulate the franchise or permit to operate of transportation
utilities. The posting of election campaign material on vehicles used for
public transport or on transport terminals is not only a form of political
expression, but also an act of ownership - it has nothing to do with the
franchise or permit to operate the PUV or transport terminal.
On the other hand, a governmental action that restricts
freedom of speech or of the press based on content is given
the strictest scrutiny in light of its inherent and invasive impact.
Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, 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. 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.” 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.”
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.
Also, the incidental restriction on speech must be no
greater than what is essential to the furtherance of that interest. A
restriction that is so broad that it encompasses more than what is
required to satisfy the governmental interest will be
invalidated. The regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken
Thus, when the prior restraint partakes of a content-
neutral regulation, it is subjected to an intermediate review.
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 imposed are neither
overbroad nor vague [Chavez v. Gonzales].
Torsedillas v. Puno
Held: It should also be emphasized that the issuance of the
advisory, as well as respondents' actions in ordering the dispersal of the
media when the warrant of arrest was served, especially when Trillanes'
group refused to receive the same, were valid exercises of respondents'
authorities. Indeed, as stated in the law establishing the PNP and
reorganizing the DILG, Republic Act (RA) No. 6975, it is the declared
"policy of the State to promote peace and order, ensure public safety and
further strengthen local government capability aimed towards the effective
delivery of the basic services to the citizenry through the establishment of a
highly efficient and competent police force xxx." Likewise, the Secretary of
Justice, being the head of the DOJ, the principal law agency of the
country, was well-within his authority to remind the media of the
consequences of resisting and disobeying authorities with their lawful
orders, especially during emergency situations and when public safety and
order are at risk.
Again, at most, the challenged advisory was merely a reminder
of already established laws and jurisprudence, and respondents' actions
were lawful implementation thereof. With or without such advisory, if
media networks and personnel are found to have violated penal laws, they
may be prosecuted and held liable therefor. Hence, it cannot be said that the
advisory and respondents' acts produced a chilling effect on the media's
exercise of their profession.
Freedom from subsequent punishment
Without this assurance, the individual would hesitate to
speak for fear that he might be held to account for his speech, or
that he might be provoking the vengeance of the officials he may
have criticized. However, this freedom is not absolute, and may be
properly regulated in the interest of the public. Accordingly, the
State may validly impose penal and/or administrative sanctions,
such as in the following:
i) Libel. 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 [Art. 353, Revised Penal Code],
Oral defamation is called slander [Art. 358, Revised Penal Code].
The freedom of the press is one of the cherished hallmarks of our
democracy; but even as we strive to protect and respect the fourth
estate, the freedom it enjoys must be balanced with responsibility.
There is a fine line between freedom of expression and libel, and it
falls on the courts to determine whether or not that line has been
crossed [Tulfo v. Court of Appeals].
In Manila Bulletin Publishing Corporation and Ruther
Batuigas v. Victor A. Domingo and the People of the
Philippines, this Court explained the rule in the determination of
defamatory imputation, viz:
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. 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. 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.
ii) Obscenity. There is no perfect definition of
“obscenity”, but the latest word is that of Miller v. California,
which established basic guidelines, to wit: (1) whether the average
person, applying contemporary standards, would find that the
work, taken as a whole, appeals to the prurient interest; (2) whether
the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (3)
whether the work, taken as a whole, lacks serious literary, artistic,
political or scientific value. 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
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conduct. 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 [Fernando v. Court of
Appeals].
Belo-Henares v. Guevarra
Held: A punctilious scrutiny of the Facebook remarks
complained of disclosed that they were ostensibly made with malice
tending to insult and tarnish the reputation of complainant and BMGI.
Calling complainant a "quack doctor," "Reyna ng Kaplastikan," "Reyna ng
Payola,"  and "Reyna ng Kapalpakan,"  and insinuating that she has been
bribing people to destroy respondent smacks of bad faith and reveals an
intention to besmirch the name and reputation of complainant, as well as
BMGI. Respondent also ascribed criminal negligence upon complainant
and BMGI by posting that complainant disfigured ("binaboy")  his client
Norcio, labeling BMGI a "Frankenstein Factory," and calling out a boycott
of BMGI's services all these despite the pendency of the criminal cases that
Norcio had already filed against complainant. He even threatened
complainant with conviction for criminal negligence and estafa which is
contrary to one's obligation "to act with justice."·
In view of the foregoing, respondent's inappropriate and obscene
language, and his act of publicly insulting and undermining the reputation
of complainant through the subject Facebook posts are, therefore, in
complete and utter violation of the following provisions in the Code of
Professional Responsibility.
iii) Criticism of official conduct. The leading case of
U.S. v. Bustos, is authority for the rule that the individual is given
the widest latitude in criticism of official conduct. The Supreme
Court compared criticism to a “scalpel that relieves the abscesses
of officialdom”.
Political Speech
Political speech is one of the most important expressions
protected by the Fundamental Law. “Freedom 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.” Accordingly, the same must remain unfettered unless
otherwise justified by a compelling state interest.
The right to participate in electoral processes is a basic
and fundamental right in any democracy. It includes not only the
right to vote, but also the right to urge others to vote for a particular
candidate. The right to express one's preference for a candidate is
likewise part of the fundamental right to free speech. Thus, any
governmental restriction on the right to convince others to vote for
a candidate carries with it a heavy presumption of invalidity [1-
UTAK v. COMELEC].
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 [GMA v. COMELEC].
GMA v. COMELEC
Held: 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
cost-effective medium of dissemination. Even a slight increase in television
exposure can significantly boost a candidate's popularity, name recall and
electability.” 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.
In an equality-based approach, "politically disadvantaged
speech prevails over regulation, but regulation promoting political
equality prevails over speech." 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. 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 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
[Diocese of Bacolod v. COMELEC].
Thus clearly, regulation of speech in the context of
electoral campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to
time, place, and manner. This is the effect of our rulings
in Osmeña v. COMELEC and National Press Club v. COMELEC,
to wit:
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.
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 This does not mean that there cannot be a specie of speech by a
private citizen which will not amount to an election paraphernalia to be
validly regulated by law.
Regulation of election paraphernalia will still be constitutionally
valid if it reaches into speech of persons who are not candidates or who do
not speak as members of a political party if they are not candidates, only if
what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a)
should be provided by law, (b) reasonable, (c) narrowly tailored to meet the
objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or
censored on the basis of its content. For this purpose, it will not matter
whether the speech is made with or on private property.
SWS v. COMELEC
Held: It is settled that constitutionally declared principles are a
compelling state interest:
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, constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast."
Here, we have established that the regulation of election surveys
effects the constitutional policy, articulated in Article II, Section 26, and
reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section
26 of the 1987 Constitution, of "guarantee[ing] equal access to
opportunities for public service[.]"
Resolution No. 9674 addresses the reality that an election survey
is formative as it is descriptive. It can be a means to shape the preference of
voters and, thus, the outcome of elections. In the hands of those whose end
is to get a candidate elected, it is a means for such end and partakes of the
nature of election propaganda. Accordingly, the imperative of "fair"
elections impels their regulation.
Lastly, Resolution No. 9674 is "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 is
"demonstrably the least restrictive means to achieve that object."
While it does regulate expression (i.e., petitioners' publication of
election surveys), it does not go so far as to suppress desired expression.
There is neither prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys remains. All Resolution
No. 9674 does is articulate a regulation as regards the manner of
publication, that is, that the disclosure of those who commissioned and/or
paid for, including those subscribed to, published election surveys must be
made.
The very definition of "prior restraint" negates petitioner's
assertions. Resolution No. 9674 poses no prohibition or censorship
specifically aimed at election surveys. Apart from regulating the manner of
publication, petitioners remain free to publish election surveys. COMELEC
correctly points out that "[t]he disclosure requirement kicks in only upon,
not prior to, publication."
In any case, the requirement of disclosing subscribers is neither
unduly burdensome nor onerous. Prior to the promulgation of Resolution
No. 9674, survey firms were already understood to be bound by the
requirement to disclose those who commissioned or paid for published
election surveys. Petitioners have been complying with this without
incident since the Fair Election Act was enacted in 2001. After more than a
decade of compliance, it is odd for petitioners to suddenly assail the
disclosure requirement as unduly burdensome or onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed to
stand, survey firms will no longer be able to operate because they will not
have enough clients and will not be financially sustainable" is too
speculative and conjectural to warrant our consideration. The assumption is
that persons who want to avail of election survey results will automatically
be dissuaded from doing so when there is a requirement of submission of
their names during the campaign period. This is neither self-evident, nor a
presumption that is susceptible to judicial notice. There is no evidence to
establish a causal connection.
Petitioners' free speech rights must be weighed in relation to the
Fair Election Act's purpose of ensuring political equality and, therefore, the
speech of others who want to participate unencumbered in our political
spaces. On one hand, there are petitioners' right to publish and publications
which are attended by the interests of those who can employ published data
to their partisan ends. On the other, there is regulation that may effect
equality and, thus, strengthen the capacity of those on society's margins or
those who grope for resources to engage in the democratic dialogue. The
latter fosters the ideals of deliberative democracy. It does not trump the
former; rather, it provides the environment where the survey group's free
speech rights should reside.
Diocese of Bacolod v. COMELEC
Held: This Court's Decision discussed that the tarpaulin consists
of satire of political parties that "primarily advocates a stand on a social
issue; only secondarily—even almost incidentally—will cause the election
or non-election of a candidate." It is not election propaganda as its
messages are different from the usual declarative messages of candidates.
The tarpaulin is an expression with political consequences, and "[t]his
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." We recognize
that there can be a type of speech by private citizens amounting to election
paraphernalia that can be validly regulated. However, this is not the
situation in this case. The twin tarpaulins consist of a social advocacy, and
the regulation, if applied in this case, fails the reasonability test.
Lastly, the regulation is content-based. The Decision discussed
that "[t]he form of expression is just as important as the information
conveyed that it forms part of the expression[,]" and size does matter.
Captive-audience Doctrine
The captive-audience doctrine states that when a listener
cannot, as a practical matter, escape from intrusive speech, the
speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an
unwanted message in circumstances in which the communication
cannot be avoided.
A regulation based on the captive-audience doctrine is in
the guise of censorship, which undertakes selectively to shield the
public from some kinds of speech on the ground that they are more
offensive than others. Such selective restrictions have been upheld
only when the speaker intrudes on the privacy of the home or the
degree of captivity makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure [Consolidated
Edison Co. v. Public Service Commission].
1-UTAK v. COMELEC
Held: Thus, a government regulation based on the captive-
audience doctrine may not be justified if the supposed "captive audience"
may avoid exposure to the otherwise intrusive speech. The prohibition
under Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified
under the captive-audience doctrine; the commuters are not forced or
compelled to read the election campaign materials posted on PUVs and
transport terminals. Nor are they incapable of declining to receive the
messages contained in the posted election campaign materials since they
may simply avert their eyes if they find the same unbearably intrusive.
It is correct to conclude that those who enter government
service are subjected to a different degree of limitation on their
freedom to speak their mind; however, it is not tantamount to the
relinquishment of their constitutional right of expression otherwise
enjoyed by citizens just by reason of their
employment. Unarguably, a citizen who accepts public
employment "must accept certain limitations on his or her
freedom." But there are some rights and freedoms so fundamental
to liberty that they cannot be bargained away in a contract for
public employment. It is the Court's responsibility to ensure that
citizens are not deprived of these fundamental rights by virtue of
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working for the government. Government workers, whatever their
ranks, have as much right as any person in the land to voice out
their protests against what they believe to be a violation of their
rights and interests. Civil Service does not deprive them of their
freedom of expression. It would be unfair to hold that by joining
the government service, the members thereof have renounced or
waived this basic liberty. This freedom can be reasonably regulated
only but can never be taken away. In simple paraphrase we say,
regulation of the freedom of expression is not removal of the
constitutional right [GSIS v. Villariza].
A concerted activity or mass action done outside of
government office hours shall not be deemed a prohibited
concerted activity or mass action within the contemplation of this
omnibus rules provided the same shall not occasion or result in the
disruption of work or service [Resolution No. 021316, Sec. 5].
The operative phrases are "any collective activity" and
"work stoppage or service disruption." Without the intent at work
stoppage or service disruption, the concerted activity is not
prohibited. The time and place of the activity are not determinative
of the prohibition. Whether done within government hours, a
concerted activity is allowed if it is without any intent at work
stoppage.
DCWD v. Aranjuez
Held: It is clear that the collective activity of joining the fun run
in t-shirts with inscriptions on CNA incentives was not to effect work
stoppage or disrupt the service. As pointed out by the respondents, they
followed the advice of GM Gamboa "to be there" at the fun run.
Respondents joined, and did not disrupt the fun run. They were in sports
attire that they were allowed, nay required, to wear. Else, government
employees would be deprived of their constitutional right to freedom of
expression. This, then, being the fact, we have to rule against the findings
of both the CSC and Court of Appeals that the wearing of t-shirts with
grievance inscriptions constitutes as a violation of Reasonable Office Rules
and Regulations.
B. CONTENT-BASED REGULATION
1. Tests on the Validity of Content-Based
Restrictions
a) Clear and Present Danger: Whether the words are
used in such circumstances and of such a nature as to create a clear
and present danger that they will bring about the substantive evils
that the State has the right to prevent [Schenck v. U.S.] “The
substantive evil must be extremely serious and the degree of
imminence extremely high before utterances can be punished”
The rule is that the danger created must not only be clear
and present but also traceable to the ideas expressed. In Gonzales
v. COMELEC, the Court said that the term “clear” seems to point
to a causal connection with the danger of the substantive evil
arising from the utterance questioned; while “present” refers to the
time element, identified with imminent and immediate danger. The
danger must not only be probable, but very likely inevitable.
Marantan v. Diokno
Held: The "clear and present danger" rule means that the evil
consequence of the comment must be "extremely serious and the degree of
imminence extremely high" before an utterance can be punished. There
must exist a clear and present danger that the utterance will harm the
administration of justice. Freedom of speech should not be impaired
through the exercise of the power of contempt of court unless there is no
doubt that the utterances in question make a serious and imminent threat to
the administration of justice. It must constitute an imminent, not merely a
likely, threat.
The contemptuous statements made by the respondents allegedly
relate to the merits of the case, particularly the guilt of petitioner, and the
conduct of the Court as to its failure to decide G.R. No. 199462.
As to the merits, the comments seem to be what the respondents
claim to be an expression of their opinion that their loved ones were
murdered byMarantan. This is merely a reiteration of their position in G.R.
No. 199462, which precisely calls the Court to upgrade the charges from
homicide to murder. The Court detects no malice on the face of the said
statements. The mere restatement of their argument in their petition cannot
actually, or does not even tend to, influence the Court.
As to the conduct of the Court, a review of the respondents’
comments reveals that they were simply stating that it had not yet resolved
their petition. There was no complaint, express or implied, that an
inordinate amount of time had passed since the petition was filed without
any action from the Court. There appears no attack or insult on the dignity
of the Court either.
“A public utterance or publication is not to be denied the
constitutional protection of freedom of speech and press merely because it
concerns a judicial proceeding still pending in the courts, upon the theory
that in such a case, it must necessarily tend to obstruct the orderly and fair
administration of justice.” By no stretch of the imagination could the
respondents’ comments pose a serious and imminent threat to the
administration of justice. No criminal intent to impede, obstruct, or degrade
the administration of justice can be inferred from the comments of the
respondents. Freedom of public comment should, in borderline instances,
weigh heavily against a possible tendency to influence pending cases. The
power to punish for contempt, being drastic and extraordinary in its nature,
should not be resorted to unless necessary in the interest of justice. [14] In the
present case, such necessity is wanting.
b) Dangerous tendency: When the legislative body has
determined generally that utterances of a certain kind involve such
danger of substantive evil that they may be punished, the question
whether any specific utterance coming within the prohibited class
is likely, in and of itself, to bring about the substantive evil is not
open to consideration. In such cases the general provision of the
statute may be constitutionally applied to the specific utterance if
its natural and probable effect was to bring about the substantive
evil that the legislative body might prohibit. (Gitlow vs. New York,
268 U.S. 652 [1952])
c) Balancing of interest: The court must undertake the
delicate and difficult task of weighing the circumstances and
appraising the substantiality of the reasons advanced in support of
the regulation of the free enjoyment of rights. (American
Communication Ass’n vs. Doubs, 339 U.S. 383, cited in Gonzales
vs. COMELEC, 27 SCRA 835 (1969)
d) Direct incitement: The guarantees of free speech and
free press do not permit a state to forbid or prescribe the advocacy
of the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. (Brandenburg vs. Ohio,
395 U.S. 444 (1969); cited in Salonga vs. Cruz Pano, 134 SCRA
438 [1985])
e) Grave-but-improbable danger: Whether the gravity
of the evil, discounted by its improbability, justifies such an
invasion of speech as is necessary to avoid the danger. (Dennis vs.
United States, 341 U.S. 494 [1951])
2. Application of Tests in Various Contexts
a) Freedom of Expression and Criticism of Official
Conduct: The Test of Actual Malice. Subsequent jurisprudence
developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions. In the
1951 case of Espuelas v. People, this court noted every citizen’s
privilege to criticize his or her government, provided it is “specific
Page | 5
and therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-up.”
Errors or misstatements are inevitable in any scheme of
truly free expression and debate.   Consistent with good faith and
reasonable care, the press should not be held to account, to a point
of suppression, for honest mistakes or imperfections in the choice
of language.  There must be some room for misstatement of fact as
well as for misjudgment.  Only by giving them much leeway and
tolerance can they courageously and effectively function as critical
agencies in our democracy.
Under Article 361 of the Revised Penal Code, if the
defamatory statement is made against a public official with respect
to the discharge of his official duties and functions and the truth of
the allegation is shown, the accused will be entitled to an acquittal
even though he does not prove that the imputation was published
with good motives and for justifiable ends. For that matter, even if
the defamatory statement is false, no liability can attach if it relates
to official conduct, unless the public official concerned proves that
the statement was made with actual malice, that is, with knowledge
that it was false or with reckless disregard of whether it was false
or not.
Vasquez v. Court of Appeals
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 Article 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.”
.” In this case, the prosecution failed to prove not only that the
charges made by petitioner were false but also that petitioner made them
with knowledge of their falsity or with reckless disregard of whether they
were false or not.
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 [Borjal v.
Court of Appeals].
Borjal v. Court of Appeals
Held: . Article 354 of the Revised Penal Code, enumerates some
of these qualifiedly privileged communications, as follows:
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. (Emphasis ours)
The enumeration under said article is, however, not an exclusive
list of qualifiedly privileged communications since fair commentaries on
matters of public interest are likewise privileged. They are known as
qualifiedly privileged communications, since they are merely exceptions to
the general rule requiring proof of actual malice in order that a defamatory
imputation may be held actionable. In other words, defamatory imputations
written or uttered during any of the three classes of qualifiedly privileged
communications enumerated above: (1) a private communication made by
any person to another in the performance of any legal, moral or social duty;
(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; and (3) fair commentaries on matters of public
interest may still be considered actionable if actual malice is proven.
Nova Communications v. Canoy
Held: 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.
In this case, the defamatory words imputed to Atty. Canoy
cannot be said to be fair commentaries on matters of public interest. To be
sure, informing the public as to the rebellion of Col. Noble is a matter of
public interest. However, calling Atty. Canoy as a veritable mental asylum
patient, a madman and a lunatic is not in furtherance of the public interest.
The defamatory words are irrelevant to the alleged participation of Atty.
Canoy in the rebellion staged by Col. Noble.
Freedom of the Press v. Responsibility of the Press
A robust and independently free press is doubtless one of
the most effective checks on government power and abuses. Hence,
it behooves government functionaries to respect the value of
openness and refrain from concealing from media corruption and
other anomalous practices occurring within their backyard. On the
other hand, public officials also deserve respect and protection
against false innuendoes and unfounded accusation of official
wrongdoing from an abusive press. As it were, the law and
jurisprudence on libel heavily tilt in favor of press freedom. The
common but most unkind perception is that government institutions
and their officers and employees are fair game to official and
personal attacks and even ridicule. And the practice on the ground
is just as disconcerting. Reports and accusation of official
misconduct often times merit front page or primetime treatment,
while defenses set up, retraction issued, or acquittal rendered get no
more, if ever, perfunctory coverage. The unfairness needs no
belaboring. The balm of clear conscience is sometimes not enough
[Tulfo v. Court of Appeals].
The Court has long respected the freedom of the press,
and upheld the same when it came to commentaries made on public
figures and matters of public interest. Even in cases wherein the
freedom of the press was given greater weight over the rights of
individuals, the Court, however, has stressed that such freedom is
not absolute and unbounded. The exercise of this right or any right
enshrined in the Bill of Rights, indeed, comes with an equal burden
of responsible exercise of that right. The recognition of a right is
Page | 6
not free license for the one claiming it to run roughshod over the
rights of others.
The Journalist's Code of Ethics adopted by the National
Union of Journalists of the Philippines shows that the press
recognizes that it has standards to follow in the exercise of press
freedom; that this freedom carries duties and responsibilities. Art. I
of said code states that journalists "recognize the duty to air the
other side and the duty to correct substantive errors promptly." Art.
VIII states that journalists "shall presume persons accused of crime
of being innocent until proven otherwise."
Tulfo v. Court of Appeals
Held: In the present case, it cannot be said that Tulfo followed
the Journalist's Code of Ethics and exercised his journalistic freedom
responsibly. In his series of articles, he targeted one Atty. "Ding" So of the
Bureau of Customs as being involved in criminal activities, and was using
his public position for personal gain. He went even further than that, and
called Atty. So an embarrassment to his religion, saying "ikaw na yata ang
pinakagago at magnanakaw sa miyembro nito." He accused Atty. So of
stealing from the government with his alleged corrupt activities. And when
Atty. So filed a libel suit against him, Tulfo wrote another article,
challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So dahil
binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of
Customs]."
In his testimony, Tulfo admitted that he did not personally know
Atty. So, and had neither met nor known him prior to the publication of the
subject articles. He also admitted that he did not conduct a more in-depth
research of his allegations before he published them, and relied only on his
source at the Bureau of Customs. In his defense before the trial court, Tulfo
claimed knowledge of people using the names of others for personal gain,
and even stated that he had been the victim of such a practice. He argued
then that it may have been someone else using the name of Atty. So for
corrupt practices at the South Harbor, and this person was the target of his
articles. This argument weakens his case further, for even with the
knowledge that he may be in error, even knowing of the possibility that
someone else may have used Atty. So's name, as Tulfo surmised, he made
no effort to verify the information given by his source or even to ascertain
the identity of the person he was accusing.
b) Freedom of expression and the right of privacy
It was demonstrated sometime ago by the then Dean
Irene R. Cortes that our law, constitutional and statutory, does
include a right of privacy. It is left to case law, however, to mark
out the precise scope and content of this right in differing types of
particular situations. The right of privacy or "the right to be let
alone", like the right of free expression, is not an absolute right. A
limited intrusion into a person’s privacy has long been regarded as
permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him
constitute matters of a public character. Succinctly put, the right of
privacy cannot be invoked to resist publication and dissemination
of matters of public interest. The interest sought to be protected by
the right of privacy is the right to be free from
"unwarranted publicity, from the wrongful publicizing of the
private affairs and activities of an individual which are outside the
realm of legitimate public concern" [Ayer Productions v.
Capulong].
The prevailing doctrine is that the clear and present
danger rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and of the press, which includes
such vehicles of the mass media as radio, television and the
movies, is the 'balancing-of-interests test' Chief Justice Enrique
M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle
'requires a court to take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of
situation' (Separate Opinion of the late Chief Justice Castro in
Gonzales v. Commission on Elections, supra, p. 899).
Ayer Productions v. Capulong
Held: In the case at bar, the interests observable are the right to
privacy asserted by respondent and the right of freedom of expression
invoked by petitioner. Taking into account the interplay of those interests,
we hold that under the particular circumstances presented, and considering
the obligations assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be upheld
particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern."
Whether the "balancing of interests test" or the "clear and
present danger test" be applied in respect of the instant Petitions, the Court
believes that a different conclusion must here be reached: The production
and filming by petitioners of the projected motion picture "The Four Day
Revolution" does not, in the circumstances of this case, constitute an
unlawful intrusion upon private respondent's "right of privacy".
1. It may be observed at the outset that what is involved in the instant
case is a prior and direct restraint on the part of the respondent Judge upon the exercise
of speech and of expression by petitioners. The respondent Judge has restrained
petitioners from filming and producing the entire proposed motion picture. It is
important to note that in Lagunzad, there was no prior restraint of any kind imposed
upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the preferred character of the constitutional rights of
freedom of speech and of expression, a weighty presumption of invalidity vitiates
measures of prior restraint upon the exercise of such freedoms. The invalidity of a
measure of prior restraint does not, of course, mean that no subsequent liability may
lawfully be imposed upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of issuing an ex-parte
Temporary Restraining Order one day after filing of a complaint by the private
respondent and issuing a Preliminary Injunction twenty (20) days later; for the
projected motion picture was as yet uncompleted and hence not exhibited to any
audience. Neither private respondent nor the respondent trial Judge knew what the
completed film would precisely look like. There was, in other words, no "clear and
present danger" of any violation of any right to privacy that private respondent could
lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-
bloody change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the train of events which led up to that dénouement. Clearly, such
subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of
international interest. The subject thus relates to a highly critical stage in the history of
this country and as such, must be regarded as having passed into the public domain
and as an appropriate subject for speech and expression and coverage by any form of
mass media. The subject matter, as set out in the synopsis provided by the petitioners
and quoted above, does not relate to the individual life and certainly not to the private
life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life
story of Moises Padilla necessarily including at least his immediate family, what we
have here is not a film biography, more or less fictionalized, of private respondent
Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused
upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to refer to
the role played by Juan Ponce Enrile in the precipitating and the constituent events of
the change of government in February 1986.
3. The extent of the intrusion upon the life of private respondent Juan
Ponce Enrile that would be entailed by the production and exhibition of "The Four
Day Revolution" would, therefore, be limited in character. The extent of that intrusion,
as this Court understands the synopsis of the proposed film, may be generally
described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened to
depict in "The Four Day Revolution" any part of the private life of private respondent
or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of
public concern, that petitioners propose to film were taking place, private respondent
was what Profs. Prosser and Keeton have referred to as a "public figure":
"A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs,
and his character, has become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are those who have
achieved some degree of reputation by appearing before the public, as in
the case of an actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary
soldiers, an infant prodigy, and no less a personage than the Grand Exalted
Ruler of a lodge. It includes, in short, anyone who has arrived at a position
where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at
least, their right of privacy. Three reasons were given, more or less
indiscriminately, in the decisions: that they had sought publicity and
consented to it, and so could not complain when they received it; that their
Page | 7
personalities and their affairs had already become public, and could no
longer be regarded as their own private business; and that the press had a
privilege, under the Constitution, to inform the public about those who
have become legitimate matters of public interest. On one or another of
these grounds, and sometimes all, it was held that there was no liability
when they were given additional publicity, as to matters legitimately within
the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of
public interest, was held to arise out of the desire and the right of the
public to know what is going on in the world, and the freedom of the press
and other agencies of information to tell it. 'News' includes all events and
items of information which are out of the ordinary humdrum routine, and
which have ‘that indefinable quality of information which arouses public
attention.’ To a very great extent the press, with its experience or instinct as
to what its readers will want, has succeeded in making its own definition of
news, as a glance at any morning newspaper will sufficiently indicate. It
includes homicide and other crimes, arrests and police raides, suicides,
marriages and divorces, accidents, a death from the use of narcotics, a
woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and
undoubtedly many other similar matters of genuine, if more or less
deplorable, popular appeal.
The privilege of enlightening the public was not, however,
limited to the dissemination of news in the sense of current events. It
extended also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts concerning
interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to
draw the line, the courts were invited to exercise a species of censorship
over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt."[15]
Private respondent is a "public figure" precisely because, inter
alia, of his participation as a principal actor in the culminating events of the
change of government in February 1986. Because his participation therein
was major in character, a film reenactment of the peaceful revolution that
fails to make reference to the role played by private respondent would be
grossly unhistorical. The right of privacy of a “public figure” is necessarily
narrower than that of an ordinary citizen. Private respondent has not retired
into the seclusion of simple private citizenship. He continues to be a “public
figure”. After a successful political campaign during which his participation
in the EDSA Revolution was directly or indirectly referred to in the press,
radio and television, he sits in a very public place, the Senate of the
Philippines.
5. The line of equilibrium in the specific context of the instant case
between the constitutional freedom of speech and of expression and the right of
privacy, may be marked out in terms of a requirement that the proposed motion picture
must be fairly truthful and historical in its presentation of events. There must, in other
words, be no knowing or reckless disregard of truth in depicting the participation of
private respondent in the EDSA Revolution. [16] There must, further, be no presentation
of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. [17] The proposed motion picture should not
enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as “matters of
essentially private concern”.[18] To the extent that “The Four Day Revolution” limits
itself in portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent’s privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be carried out even without a license
from private respondent.
c) Freedom of expression and the administration of
justice (contempt of court).
The judiciary, as the branch of government tasked to
administer justice, to settle justiciable controversies or disputes
involving enforceable and demandable rights, and to afford redress
of wrongs for the violation of said rights must be allowed to decide
cases independently, free of outside influence or pressure. An
independent judiciary is essential to the maintenance of democracy,
as well as of peace and order in society. Further, maintaining the
dignity of courts and enforcing the duty of citizens to respect them
are necessary adjuncts to the administration of justice. Thus, Rule
71, Section 3 (d) of the Revised Rules of Court authorizes the
courts to hold liable for criminal contempt a person guilty of
conduct that is directed against the dignity or authority of the court,
or of an act obstructing the administration of justice which tends to
bring the court into disrepute or disrespect.
In the Matter – Macasaet
Held: For sure, judicial criticism can be constructive,
uncovering and addressing a problem that merits public attention. Public
awareness, debate, and criticism of the courts ensure that people are
informed of what they are doing that have broad implications for all
citizens. Informed discussion, comment, debate and disagreement from
lawyers, academics, and public officials have been hallmarks of a great
legal tradition and have played a vital role in shaping the law.
But there is an important line between legitimate criticism and
illegitimate attack upon the courts or their judges. Attacks upon the court or
a judge not only risk the inhibition of all judges as they conscientiously
endeavor to discharge their constitutional responsibilities; they also
undermine the people's confidence in the courts.
Personal attacks, criticisms laden with political threats, those
that misrepresent and distort the nature and context of judicial decisions,
those that are misleading or without factual or legal basis, and those that
blame the judges for the ills of society, damage the integrity of the judiciary
and threaten the doctrine of judicial independence. These attacks do a grave
disservice to the principle of an independent judiciary and mislead the
public as to the role of judges in a constitutional democracy, shaking the
very foundation of our democratic government.
Such attacks on the judiciary can result in two distinct - yet
related - undesirable consequences. First, the criticism will prevent judges
from remaining insulated from the personal and political consequences of
making an unpopular decision, thus placing judicial independence at
risk. Second, unjust criticism of the judiciary will erode the public's trust
and confidence in the judiciary as an institution. Both judicial independence
and the public's trust and confidence in the judiciary as an institution are
vital components in maintaining a healthy democracy.
Accordingly, it has been consistently held that, while freedom 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, these freedoms
are not absolute. For, if left unbridled, they have the tendency to be abused
and can translate to licenses, which could lead to disorder and anarchy.
In Re: Published
Held: Respondent cannot justify his contemptuous statements--
asking the Court to dispel rumors that it would declare the Plunder Law
unconstitutional, and stating that a decision declaring it as such was
basically wrong and would not be accepted by the people—as utterances
protected by his right to freedom of speech.
In People vs. Godoy, this Court explained that while a citizen
may comment upon the proceedings and decisions of the court and discuss
their correctness, and even express his opinions on the fitness or unfitness
of the judges for their stations, and the fidelity with which they perform the
important public trusts reposed in them, he has no right to attempt to
degrade the court, destroy public confidence in it, and encourage the people
to disregard and set naught its orders, judgments and decrees. Such
publications are said to be an abuse of the liberty of speech and of the press,
for they tend to destroy the very foundation of good order and well-being in
society by obstructing the course of justice.
Clearly, respondent’s utterances pressuring the Court to rule in
favor of the constitutionality of the Plunder Law or risk another series of
mass actions by the public cannot be construed as falling within the ambit
of constitutionally-protected speech, because such statements are not fair
criticisms of any decision of the Court, but obviously are threats made
against it to force the Court to decide the issue in a particular manner, or
risk earning the ire of the public. Such statements show disrespect not only
for the Court but also for the judicial system as a whole, tend to promote
distrust and undermine public confidence in the judiciary, by creating the
impression that the Court cannot be trusted to resolve cases impartially and
violate the right of the parties to have their case tried fairly by an
independent tribunal, uninfluenced by public clamor and other extraneous
influences.
Malicious publications cannot seek protection of the
constitutional guaranties of free speech and press.
Page | 8
 Freedom of speech is not absolute, and must occasionally
be balanced with the requirements of equally important public
interests, such as the maintenance of the integrity of the courts and
orderly functioning of the administration of justice.  For the
protection and maintenance of freedom of expression itself can be
secured only within the context of a functioning and orderly system
of dispensing justice, within the context, of viable independent
institutions for delivery of justice which are accepted by the
general community. Certainly, the making of contemptuous
statements directed against the Court is not an exercise of free
speech; rather, it is an abuse of such right.  Unwarranted attacks on
the dignity of the courts cannot be disguised as free speech, for the
exercise of said right cannot be used to impair the independence
and efficiency of courts or public respect therefore and confidence
therein [People v. Alarcon].
Re: Letter of the UP Law Faculty
Held: The publication of a statement by the faculty of the UP
College of Law regarding the allegations of plagiarism and
misrepresentation in the Supreme Court was totally unnecessary, uncalled
for and a rash act of misplaced vigilance.  Of public knowledge is the
ongoing investigation precisely to determine the truth of such allegations.  due administration of justice.  It must however be exercised on the
More importantly, the motion for reconsideration of the decision alleged to
contain plagiarized materials is still pending before the Court. We made it
clear in the case of In re Kelly that any publication, pending a suit,
reflecting upon the court, the jury, the parties, the officers of the court, the
counsel with reference to the suit, or tending to influence the decision of the
controversy, is contempt of court and is punishable.
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 [People v. Godoy].
There is thus a need to distinguish between adverse criticism of the
court’s decision after the case has ended and scandalizing the court
itself.  The latter is not criticism; it is personal and scurrilous abuse
of a judge as such, in which case it shall be dealt with as a case for
contempt [Garcia v. Manrique].
Contempt, by reason of publications relating to court and
to court proceedings, are of two kinds.  A publication which tends
to impede, obstruct, embarrass or influence the courts in
administering justice in a pending suit or proceeding, constitutes
criminal contempt which is summarily punishable by courts.  This
is the rule announced in the cases relied upon by the majority.  A
publication which tends to degrade the courts and to destroy
public confidence in them or that which tends to bring them in any
way into disrepute, constitutes likewise criminal contempt, and is
equally punishable by courts.  In the language of the majority, what
is sought, in the first kind of contempt, to be shielded against the
influence of newspaper comments, is the all-important duty of the
courts to administer justice in the decision of a pending case.  In
the second kind of contempt, the punitive hand of justice is
extended to vindicate the courts from any act or conduct calculated
to bring them into disfavor or to destroy public confidence in
them.  In the first, there is no contempt where there is no action
pending, as there is no decision which might in any way be
influenced by the newspaper publication.  In the second, the
contempt exists, with or without a pending case, as what is sought
to be protected is the court itself and its dignity.  Courts would lose
their utility if public confidence in them is destroyed.
Succinctly, there are two kinds of publications relating to court and
to court proceedings which can warrant the exercise of the power
to punish for contempt: (1) that which tends to impede, obstruct,
embarrass or influence the courts in administering justice in a
pending suit or proceeding; and (2) that which tends to degrade the
courts and to destroy public confidence in them or that which tends
to bring them in any way into disrepute.
Garcia v. Manrique
Held: We find the subject article illustrative of the second kind
of contemptuous publication for insinuating that this Court’s issuance of
TRO in G.R. No. 185132 was founded on an illegal cause.  The glaring
innuendos of illegality in the article is denigrating to the dignity of this
Court and the ideals of fairness and justice that it represents.  It is
demonstrative of disrespect not only for this Court, but also for the judicial
system as a whole, tends to promote distrust and undermines public
confidence in the judiciary by creating the impression that the Court cannot
be trusted to resolve cases impartially.
The power to punish for contempt is inherent in all courts as it is
indispensable to their right of self-preservation, to the execution of their
powers, and to the maintenance of their authority; and consequently to the
preservative not vindictive principle, and on the corrective not retaliatory
idea of punishment.  The courts must exercise the power to punish for
contempt for purposes that are impersonal, because that power is intended
as a safeguard not for the judges as persons but for the functions that they
exercise.
d) Assembly and Petition
The right to assemble is not subject to prior restraint. It
may not be conditioned upon the prior issuance of a permit or
authorization from government authorities. However, the right
must be exercised in such a way as will not prejudice the public
welfare, as held in De la Cruz v. Court of Appeals. In this case, the
Supreme Court said that by staging their mass protest on regular
school days, abandoning their classes and refusing to go back even
after they were ordered to do so, the teachers committed acts
prejudicial to the best interests of the service.
C. CONTENT-NEUTRAL RESTRICTIONS
1. Regulation of political campaign/election activity
When the speech restraints take the form of a content-
neutral regulation, only a substantial governmental interest is
required for its validity. 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.
Osmena v. COMELEC
The term political “ad ban,” when used to describe Section11(b)
of R.A. No. 6646, is misleading, for even as Section11(b) prohibits the sale
or donation of print space and air time to political candidates, it mandates
the COMELEC to procure and itself allocate to the candidates space and
time in the media. There is no suppression of political ads but only a
regulation of the time and manner of advertising. The main purpose of
Section 11(b) is regulatory. Any restriction on speech is only incidental,
and it is no more than is necessary to achieve its purpose of promoting
equality of opportunity in the use of mass media for political advertising.
The restriction on speech, as pointed out in NPC, is limited both as to time
and as to scope.
Here, there is no total ban on political ads, much less restriction
on the content of the speech. Given the fact that print space and air time can
be controlled or dominated by rich candidates to the disadvantage of poor
candidates, there is a substantial or legitimate governmental interest
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justifying exercise of the regulatory power of the COMELEC under Art.
IX-C, §4 of the Constitution.
The provisions in question involve no suppression of political
ads. They only prohibit the sale or donation of print space and air time to
candidates but require the COMELEC instead to procure space and time in
the mass media for allocation, free of charge, to the candidates. In effect,
during the election period, the COMELEC takes over the advertising page
of newspapers or the commercial time of radio and TV stations and
allocates these to the candidates.
Doctrinally, the Court has always ruled in favor of the
freedom of expression, and any restriction is treated an exemption.
The power to exercise prior restraint is not to be presumed; rather
the presumption is against its validity. And it is respondent's
burden to overthrow such presumption. Any act that restrains
speech should be greeted with furrowed brows, so it has been said.
What test should then be employed to determine the
constitutional validity of a content-neutral regulation? The
United States Supreme Court, through Chief Justice Warren, held
in United States v. O'Brien:
A government 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 incidental restriction of speech, expression and press is no
greater than is essential to the furtherance of that interest.
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." It is noteworthy
that the O'Brien test has been applied by this Court in at least two
cases.
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 suppression 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.
Hence, even though the government's purposes are
legitimate and substantial, they cannot be pursued by means that
broadly, stifle fundamental personal liberties, when the end can be
more narrowly achieved.
SWS v. COMELEC
Held: First.  Sec. 5.4 fails to meet criterion  of the O'Brien test
because the causal connection of expression to the asserted governmental
interest makes such interest "not unrelated 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 makers.  In effect, §5.4 shows a bias
for a particular subject matter, if not viewpoint, by preferring 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."
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."  and other concerted action in strike areas by workers and employees
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.
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 the suppression of freedom
of expression.
The freedoms of speech and of the press should all the
more be upheld when what is sought to be curtailed is the
dissemination of information meant to add meaning to the equally
vital right of suffrage. We cannot support any ruling or order "the
effect of which would be to nullify so vital a constitutional right as
free speech." When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen
and the State's power to regulate should not be antagonistic. There
can be no free and honest elections if, in the efforts to maintain
them, the freedom to speak and the right to know are unduly
curtailed.
True, the government has a stake in protecting the
fundamental right to vote by providing voting places that are safe
and accessible. It has the duty to secure the secrecy of the ballot
and to preserve the sanctity and the integrity of the electoral
process. However, in order to justify a restriction of the people's
freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
ABS-CBN v. COMELEC
The holding of exit polls and the dissemination of their results
through mass media constitute an essential part of the freedoms of speech
and of the press. Hence, the COMELEC cannot ban them totally in the
guise of promoting clean, honest, orderly and credible elections. Quite the
contrary, exit polls -- properly conducted and publicized -- can be vital
tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to minimize or
suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
These freedoms have additional importance, because exit polls
generate important research data which may be used to study influencing
factors and trends in voting behavior. An absolute prohibition would thus
be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term
research.
2. Freedom of Assembly
Batas Pambansa Blg. 880
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
resulting from a labor dispute as defined by the Labor Code, its
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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.
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 enact ordinances for purpose
[Primicias v. Fugoso].
Bayan v. Ermita
Held: The Supreme Court upheld the constitutionality of B.P.
880. The Court said that it is not an absolute ban on public assemblies but a
restriction that simply regulates the time, place and manner of the
assemblies. (1) In Osmena v. Comelec, the Court referred to it as a
“contentneutral” regulation of the time, place and manner of holding public
assemblies. The reference to “lawful cause” does not make it “content-
based”, because assemblies really have to be for lawful causes; otherwise,
they would not be “peaceable” and entitled to protection. Neither are the
words “opinion”, “protesting” and “influencing” in the definition of public
assembly “content- based", since they can refer to any subject. Maximum
tolerance is for the protection and benefit of all rallyists and is independent
of the content of the expressions in the rally. (2) The permit can only be
denied on the ground of clear and present danger” to public order, public
safety, public convenience, public morals or public health. This is a a
recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights. (3) The law is not overbroad. It regulates the
exercise of the right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive evils Congress
has the right to prevent. (4) There is no prior restraint, since the content of
the speech is not relevant to the regulation. 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. (5) 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.
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. 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.
The Court in Bayan stated that the provisions of the
Public Assembly Act of 1985 practically codified the 1983 ruling
in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6 of the Public
Assembly Act with the pertinent portion of the Reyes case, the
Court elucidated as follows:
x x x [The public official concerned shall] appraise whether
there may be valid objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to such refusal
or modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority.
IBP v. Atienza
Held: In modifying the permit outright, respondent gravely
abused his discretion when he did not immediately inform the IBP who
should have been heard first on the matter of his perceived imminent and
grave danger of a substantive evil that may warrant the changing of the
venue. The opportunity to be heard precedes the action on the permit, since
the applicant may directly go to court after an unfavorable action on the
permit.
Respondent failed to indicate how he had arrived at modifying
the terms of the permit against the standard of a clear and present danger
test which, it bears repeating, is an indispensable condition to such
modification. Nothing in the issued permit adverts to an imminent and
grave danger of a substantive evil, which "blank" denial or modification
would, when granted imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereof.
3. Movie Censorship
In an old U.S. case, it was observed that movies,
compared to other media of expression, have a greater capacity for
evil and must, therefore, be subjected to a greater degree of
regulation. But the power of the Board of Review for Motion
Pictures and Television (BRMPT) [now the Movie and Television
Review and Classification Board (MTR'CB)] can be exercised only
for purposes of “classification”, not censorship. In Gonzales v.
Katigbak, where the petitioner questioned the classification of the
movie as “For Adults Only”, the petition was dismissed because
the Board did not commit grave abuse of discretion. In Lagunzad
v. Sotto Vda. de Gonzales, the Court granted the petition to restrain
the public exhibition of the movie “Moises Padilla Story”, because
it contained fictionalized embellishments. In Ayer Productions v.
Judge Capulong, the tribunal upheld the primacy of freedom of
expression over Enrile’s “right to privacy”, because Enrile was a
“public figure”, and a public figure’s right to privacy is narrower
than that of an ordinary citizen. Besides, the movie “A Dangerous
Life” would not have been historically faithful without including
therein the participation of Enrile in the EDS A Revolution. Thus,
the intrusion into Enrile’s right to privacy is not unreasonable.
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 The test, to repeat, to determine whether freedom of
expression may be limited is the clear and present danger of an evil
of a substantive character that the State has a right to prevent.  Such
danger must not only be clear but also present.  There should be no
doubt that what is feared may be traced to the expression
complained of.  The causal connection must be evident.  Also,
there must be reasonable apprehension about its imminence.  The
time element cannot be ignored.  Nor does it suffice if such danger
be only probable.  There is the requirement of its being well-nigh
inevitable.  The basic postulate, therefore, as noted earlier, is that
where the movies, theatrical productions, radio scripts, television
programs, and other such media of expression are concerned —
included as they are in freedom of expression — censorship,
especially so if an entire production is banned, is allowable only
under the clearest proof of a clear and present danger of a
substantive evil to public safety, public morals, public health or any
other legitimate public interest.[17] There is merit to the observation
of Justice Douglas that "every writer, actor, or producer, no matter
what medium of expression he may use, should be freed from the
censor” [Gonzales v. Kalaw Katigbak].
In Iglesia ni Cristo v. Court of Appeals, even as the
Supreme Court upheld the authority of the Board of Review for
Motion Pictures and Television (BRMPT) to review the
petitioner’s television program, it held that the Board acted with
grave abuse of discretion when it gave an “X-rating” to the TV
program on the ground of “attacks against another religion”. Such a
classification can be justified only if there is a showing that the
television program would create a clear and present danger of an
evil which the State has the right to prevent.
Gonzales v. Kalaw Katigbak
Held: 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.  As was observed by Circuit Court of Appeals
Judge Jerome Frank, it is hardly the concern of the law to deal with the
sexual fantasies of the adult population. 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.
4. Radio Broadcast
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 [Eastern
Broadcasting Corp v. Dans].
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.
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 [Communications Commission v. Pacifica Foundation].
Eastern Broadcasting Corp. v. Dans
Held: 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 l.Q.s and mental capabilities, persons
whose reactions to inflammatory or offensive speech would be difficult to
monitor or predict. The impact of the vibrant speech is forceful and
immediate. Unlike readers of the printed work, the radio audience has lesser
opportunity to cogitate, analyze, and reject the utterance.
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.
II. FREEDOM OF ASSOCIATION AND THE
RIGHT TO STRIKE
Section 8. The right of the people, including those employed
in the public and private sectors, to form unions, associations or
societies for purposes not contrary to law shall not be abridged.
The primacy of human rights - freedom of expression, of
peaceful assembly and of petition for redress of grievances – over
property rights has been sustained. Emphatic reiteration of this
basic tenet as a coveted boon — at once the shield and armor of the
dignity and worth of the human personality, the all-consuming
ideal of our enlightened civilization — becomes Our duty, if
freedom and social justice have any meaning at all for him who
toils so that capital can produce economic goods that can generate
happiness for all. To regard the demonstration against police
officers, not against the employer, as evidence of bad faith in
collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from
employment of the demonstrating employees, stretches unduly the
compass of the collective bargaining agreement, is "a potent means
of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression,
of peaceful assembly and of petition [PBM Employees Association
v. PBM Steel Mills].
The right to form, or join, unions or associations,
includes the right not to join or, if one is already a member, to
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disaffiliate from the association. In Volkschel Labor Union v.
Bureau of Labor Relation, , the right of a labor union to disaffiliate
from a labor federation was held to be part of the right to
association. In Central Negros Electric Cooperative v. Secretary of
Labor. the Supreme Court upheld the right of employees of the
electric cooperative to withdraw their membership from the
cooperative in order to join a labor union.
PBM Employees Association v. PBM Steel Mills
Held: The pretension of their employer that it would suffer loss
or damage by reason of the absence of its employees from 6 o'clock in the
morning to 2 o'clock in the afternoon, is a plea for the preservation merely
of their property rights. Such apprehended loss or damage would not spell
the difference between the life and death of the firm or its owners or its
management. The employees' pathetic situation was a stark reality - abused,
harassed and persecuted as they believed they were by the peace officers of
the municipality. As above intimated, the condition in which the employees
found themselves vis-a-vis the local police of Pasig, was a matter that
vitally affected their right to individual existence as well as that of their
families. Material loss can be repaired or adequately compensated. The
debasement of the human being — broken in morale and brutalized in spirit
— can never be fully evaluated in monetary terms. The wounds fester and
the scars remain to humiliate him to his dying day, even as he cries in
anguish for retribution, denial of which is like rubbing salt on bruised
tissues.
What about civil servants?
The right to strike. However, even if the provision
expressly guarantees the right to form unions in public and private
sectors, members of the civil service may not declare a strike to
enforce economic demands [Alliance of Government Workers v.
Ministry of Labor and Employment].
Resolution No. 021316, which states:
Section 6. Permissible Concerted Mass Action. - A concerted
activity or mass action done outside of government office hours shall not be
deemed a prohibited concerted activity or mass action within the
contemplation of this omnibus rules provided the same shall not occasion or
result in the disruption of work or service.
Notably, however, a prohibited concerted mass action is
defined not in Sec. 6 of Resolution No. 021316 but in Sec. 5
thereof. Thus:
Section 5. Definition of Prohibited Concerted Mass Action. - As
used in this Omnibus Rules, the phrase "prohibited concerted activity or
mass action" shall be understood to refer to any collective activity
undertaken by government employees, by themselves or through their
employees organizations, with the intent of effecting work stoppage or
service disruption in order to realize their demands of force concession,
economic or otherwise, from their respective agencies or the
government. It shall include mass leaves, walkouts, pickets and acts of
similar nature.
The operative phrases are "any collective activity" and
"work stoppage or service disruption." Without the intent at work
stoppage or service disruption, the concerted activity is not
prohibited. The time and place of the activity are not determinative
of the prohibition. Whether done within government hours, a
concerted activity is allowed if it is without any intent at work
stoppage.
We cannot isolate the provision of Section 6 of the
Resolution from definition of prohibited activity in Section 5
thereof. It is erroneous to interpret the provisions in such a way that
an act not within the circumstances as defined under Section 5 can
still be regarded as prohibited if done within government hours
[DCWD v. Aranjueta]. In Jacinto v. Court of Appeals, the Court
explained:
Specifically, the right of civil servants to organize themselves
was positively recognized in Association of Court of Appeals Employees
vs. Ferrer-Caleja. But, as in the exercise of the rights of free expression and
of assembly, there are standards for allowable limitations such as the
legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .
As regards the right to strike, the Constitution itself qualifies its
exercise with the provision "in accordance with law." This is a clear
manifestation that the state may, by law, regulate the use of this right, or
even deny certain sectors such right. Executive Order 180 which provides
guidelines for the exercise of the right of government workers to organize,
for instance, implicitly endorsed an earlier CSC circular which "enjoins
under pain of administrative sanctions, all government officers and
employees from staging strikes, demonstrations, mass leaves, walkouts and
other forms of mass action which will result in temporary stoppage or
disruption of public service" by stating that the Civil Service law and rules
governing concerted activities and strikes in government service shall be
observed.
Instead, government employees may, therefore, through
their unions or associations, either petition the Congress for the
betterment of the terms and conditions of employment which are
within the ambit of legislation or negotiate with the appropriate
government agencies for the improvement of those which are not
fixed by law.  If there be any unresolved grievances, the dispute
may be referred to the Public Sector Labor-Management Council
for appropriate action.  But employees in the civil service may not
resort to strikes, walkouts and other temporary work stoppages,
like workers in the private sector, to pressure the Government to
accede to their demands.  As now provided under Sec. 4, Rule III
of the Rules and Regulations to Govern the Exercise of the Right of
Government-Employees to Self-Organization, which took effect
after the instant dispute arose, "[t]he terms and conditions of
employment in the government, including any political subdivision
or instrumentality thereof and government-owned and controlled
corporations with original charters are governed by law and
employees therein shall not strike for the purpose of securing
changes thereof” [SSSEA v. Court of Appeals].
III. RIGHT TO INFORMATION
Section 7. The right of the people to information on matters
of public concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall be afforded the citizen, subject to such
limitations as may be provided by law.
There is no debate as to the importance of the
constitutional right of the people to information and the
constitutional policies on public accountability and transparency.
These are the twin postulates vital to the effective functioning of a
democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been
delegated if they are denied access to information. And the policies
on public accountability and democratic government would
certainly be mere empty words if access to such information of
public concern is denied.
That there is a recognized public interest in the
confidentiality of such information is a recognized principle in
other democratic States. To put it simply, the right to information is
not an absolute right.
Indeed, the constitutional provisions cited by respondent
Committees do not espouse an absolute right to information. By
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their wording, the intention of the Framers to subject such right to
the regulation of the law is unmistakable [Neri v. Senate].
In Chavez v. Presidential Commission on Good
Government, it was stated that there are no specific laws
prescribing the exact limitations within which the right may be
exercised or the correlative state duty may be obliged. Nonetheless,
it enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential
information. National security matters include state secrets
regarding military and diplomatic matters, as well as information
on inter-government exchanges prior to the conclusion of treaties
and executive agreements. It was further held that even where there
is no need to protect such state secrets, they must be "examined in
strict confidence and given scrupulous protection."
The nature of foreign negotiations requires caution, and
their success must often depend on secrecy, and even when brought
to a conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President,
with the advice and consent of the Senate, the principle on which
the body was formed confining it to a small number of members.
To admit, then, a right in the House of Representatives to demand
and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous
precedent [United States v. Curtiss-Wright Export Corp].
Sereno v. CTRM
Held: Two requisites must concur before the right to information
may be compelled by writ of mandamus. Firstly, the information sought
must be in relation to matters of public concern or public interest. And,
secondly, it must not be exempt by law from the operation of the
constitutional guarantee.
As to the first requisite, there is no rigid test in determining
whether or not a particular information is of public concern or public
interest. Both terms cover a wide-range of issues that the public may want
to be familiar with either because the issues have a direct effect on them or
because the issues "naturally arouse the interest of an ordinary citizen." As
such, whether or not the information sought is of public interest or public
concern is left to the proper determination of the courts on a case to case
basis.
The second requisite is that the information requested must not
be excluded by law from the constitutional guarantee. In that regard, the
Court has already declared that the constitutional guarantee of the people's
right to information does not cover national security matters and
intelligence information, trade secrets and banking transactions and
criminal matters. Equally excluded from coverage of the constitutional
guarantee are diplomatic correspondence, closed-door Cabinet meeting and
executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court
In Baldoza v. Dimaano, the importance of the said right
was pragmatically explicated:
The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information in a
democracy.  There can be no realistic perception by the public of the
nation’s problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest.  Information is needed to
enable the members of society to cope with the exigencies of the times.  As
has been aptly observed: “Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if
either process is interrupted, the flow inevitably ceases.” However,
restrictions on access to certain records may be imposed by law.
Thus, while “public concern” like “public interest” eludes exact
definition and has been said to embrace a broad spectrum of subjects which
the public may want to know, either because such matters directly affect
their lives, or simply because such matters naturally arouse the interest of
an ordinary citizen, the Constitution itself, under Section 17, Article XI, has
classified the information disclosed in the SALN as a matter of public
concern and interest.  In other words, a “duty to disclose” sprang from the
“right to know.”  Both of constitutional origin, the former is a command
while the latter is a permission.  Hence, the duty on the part of members of
the government to disclose their SALNs to the public in the manner
provided by law.
Re: Request of Copy of 2008 SALN
Held: While the Court expressed its willingness to have the
Clerk of Court furnish copies of the SALN of any of its members, it
however, noted that requests for SALNs must be made under circumstances
that must not endanger, diminish or destroy the independence, and
objectivity of the members of the Judiciary in the performance of their
judicial functions, or expose them to revenge for adverse decisions,
kidnapping, extortion, blackmail or other untoward incidents. Thus, in order
to give meaning to the constitutional right of the people to have access to
information on matters of public concern, the Court laid down the
guidelines to be observed for requests made. Thus:
1. All requests for copies of statements of assets and liabilities
of any Justice or Judge shall be filed with the Clerk of Court of the
Supreme Court or with the Court Administrator, as the case may be
(Section 8 [A], R.A. 6713), and shall state the purpose of the request.
2. The independence of the Judiciary is constitutionally as
important as the right to information which is subject to the limitations
provided by law. Under specific circumstances, the need for fair and just
adjudication of litigations may require a court to be wary of deceptive
requests for information which shall otherwise be freely available. Where
the request is directly or indirectly traced to a litigant, lawyer, or interested
party in a case pending before the court, or where the court is reasonably
certain that a disputed matter will come before it under circumstances from
which it may, also reasonably, be assumed that the request is not made in
good faith and for a legitimate purpose, but to fish for information and, with
the implicit threat of its disclosure, to influence a decision or to warn the
court of the unpleasant consequences of an adverse judgment, the request
may be denied.
3. Where a decision has just been rendered by a court against the
person making the request and the request for information appears to be a
“fishing expedition” intended to harass or get back at the Judge, the request
may be denied.
4. In the few areas where there is extortion by rebel elements or
where the nature of their work exposes Judges to assaults against their
personal safety, the request shall not only be denied but should be
immediately reported to the military.
5. The reason for the denial shall be given in all cases.
Considering the foregoing legal precepts vis-à-vis the various
requests made, the Court finds no cogent reason to deny the public access
to the SALN, PDS and CV of the Justices of the Court and other
magistrates of the Judiciary subject, of course, to the limitations and
prohibitions provided in R.A. No. 6713, its implementing rules and
regulations, and in the guidelines set forth in the decretal portion.
The Court notes the valid concerns of the other magistrates
regarding the possible illicit motives of some individuals in their requests
for access to such personal information and their publication.  However,
custodians of public documents must not concern themselves with the
motives, reasons and objects of the persons seeking access to the records. 
The moral or material injury which their misuse might inflict on others is
the requestor’s responsibility and lookout. Any publication is made subject
to the consequences of the law.  While public officers in the custody or
control of public records have the discretion to regulate the manner in
which records may be inspected, examined or copied by interested persons,
such discretion does not carry with it the authority to prohibit access,
inspection, examination, or copying of the records. After all, public office is
a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.
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 IV. FREEDOM OF RELIGION
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. No religious test
shall be required for the exercise of civil or political rights.
There are two guarantees contained in Sec. 5: (a) Non-
establishment Clause; and (b) Freedom of religious profession and
worship.
A. NON-ESTABLISHMENT CLAUSE
The non-establishment clause reinforces the wall of
separation between Church and State. It simply means that the
State cannot set up a Church; nor pass laws which aid one religion,
aid all religion, or prefer one religion over another nor force nor
influence a person to go to or remain away from church against his
will or force him to profess a belief or disbelief in any religion; that
the state cannot punish a person for entertaining or professing
religious beliefs or disbeliefs, for church attendance or
nonattendance; that no tax in any amount, large or small, can be
levied to support any religious activity or institution whatever they
may be called or whatever form they may adopt or teach or practice
religion; that the state cannot openly or secretly participate in the
affairs of any religious organization or group and vice versa. Its
minimal sense is that the state cannot establish or sponsor an
official religion.
In the same breath that the establishment clause restricts
what the government can do with religion, it also limits what
religious sects can or cannot do. They can neither cause the
government to adopt their particular doctrines as policy for
everyone, nor can they cause the government to restrict other
groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establish a state religion [Re:
Letter of Tony Valenciano].
The non-establishment clause bars the State from
establishing, through laws and rules, moral standards according to
a specific religion [Perfecto v. Esidera]. In Everson v. Board of
Education, The U.S. Supreme Court said that the non-
establishment clause means that the State cannot set up a church,
nor pass laws which aid one religion, aid alt religion, or prefer one
religion over another, nor force nor influence a person to go to or
remain away from church against his will or force him to profess a
belief or disbelief in, any religion, etc.
In Islamic Da’wah Council of the Philippines v. Office of
the Executive Secretary, the Supreme Court declared that freedom
of religion is accorded preferred status by the framers of the
fundamental law, well aware that it is “designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good”.
Islamic Da’Wah Council of the Philippines v. Office of the
Secretary
Held: Without doubt, classifying food products as halal is a
religious function because the standards used are drawn from the Qur’an
and Islamic beliefs. By giving the Office of Muslim Affairs (OMA) the
exclusive power to classify food products as halal, EO 46 encroached on
the religious freedom of Muslim organizations like herein petitioner to
interpret for Filipino Muslims what food products are fit for Muslim
consumption. Also by arrogating to itself the task of issuing halal
certifications, the State has, in effect, forced Muslims to accept its own
interpretation of the Qur’an and Sunnah on halal food.
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. Expansive religious freedom therefore
requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent
with this policy of neutrality. an administrative case against a court
interpreter charged with disgraceful and immoral conduct, the
Court stressed that in determining whether a particular conduct can
be considered as disgraceful and immoral, the distinction between
public and secular morality on the one hand, and religious morality,
on the other, should be kept in mind. That the distinction between
public and secular morality and religious morality is important
because the jurisdiction of the Court extends only to public and
secular morality. In Estrada v. Escritur Supreme Court further
explained that:
The morality referred to in the law is public and necessarily
secular, not religious x x x. “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. Expansive religious freedom
therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this
policy of neutrality.
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.
Moreover, the Supreme Court held in Anonymous v.
Radam that:
For a particular conduct to constitute “disgraceful and immoral”
behavior under civil service laws, it must be regulated on account of the
concerns of public and secular morality. It cannot be judged based on
personal bias, specifically those colored by particular mores. Nor should it
Page | 15
be grounded on “cultural” values not convincingly demonstrated to have
been recognized in the realm of public policy expressed in the Constitution
and the laws. At the same time, the constitutionally guaranteed rights (such
as the right to privacy) should be observed to the extent that they protect
behavior that may be frowned upon by the majority.
Under these tests, two things may be concluded from the fact
that an unmarried woman gives birth out of wedlock:
if the father of the child is himself unmarried, the woman
1) is not ordinarily administratively liable for disgraceful and immoral
conduct. It may be a not-so-ideal situation and may cause
complications for both mother and child but it does not give cause
for administrative sanction. There is no law which penalizes an
unmarried mother under those circumstances by reason of her
sexual conduct or proscribes the consensual sexual activity between
two unmarried persons. Neither does the situation contravene any
fundamental state policy as expressed in the Constitution, a
document that accommodates various belief systems irrespective of
dogmatic origins.
if the father of the child born out of wedlock is himself
2) married to a woman other than the mother, then there is a cause for
administrative sanction against either the father or the mother. In
such a case, the “disgraceful and immoral conduct” consists of
having extramarital relations with a married person. The sanctity of
marriage is constitutionally recognized and likewise affirmed by our
statutes as a special contract of permanent union. Accordingly,
judicial employees have been sanctioned for their dalliances with
married persons or for their own betrayals of the marital vow of
fidelity.
Perfecto v. Esidera
Held: This court, in resolving cases that touch on issues of
morality, is bound to remain neutral and to limit the bases of its judgment
on secular moral standards. When laws or rules refer to morals or
immorality, courts should be careful not to overlook the distinction between
secular and religious morality if it is to keep its part in upholding
constitutionally guaranteed rights.
The Office of the Court Administrator recommended that we
find respondent judge guilty of immoral conduct based on, among others,
her alleged affair and her failure to comport herself according to the Roman
Catholic faith.
This court may not sit as judge of what is moral according to a
particular religion. We do not have jurisdiction over and is not the proper
authority to determine which conduct contradicts religious doctrine. We
have jurisdiction over matters of morality only insofar as it involves
conduct that affects the public or its interest.
Thus, for purposes of determining administrative liability of
lawyers and judges, "immoral conduct" should relate to their conduct as
officers of the court. To be guilty of "immorality" under the Code of
Professional Responsibility, a lawyer's conduct must be so depraved as to
reduce the public's confidence in the Rule of Law. Religious morality is not
binding whenever this court decides the administrative liability of lawyers
and persons under this court's supervision. At best, religious morality
weighs only persuasively on us.
Therefore, we cannot properly conclude that respondent judge's
acts of contracting a second marriage during the subsistence of her alleged
first marriage and having an alleged "illicit" affair are "immoral" based on
her Catholic faith. This court is not a judge of religious morality.
Accommodation, Not Establishment of Religion
It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere religious toleration
[Peralta v. PhilPost]. In order to give life to the constitutional right
of freedom of religion, the State adopts a policy of
accommodation. Accommodation is recognition of the reality that
some governmental measures may not be imposed on a certain
portion of the population for the reason that these measures are
contrary to their religious beliefs. As long as it can be shown that
the exercise of the right does not impair the public welfare, the
attempt of the State to regulate or prohibit such right would be an
unconstitutional encroachment.
In Estrada v. Escritor, the 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 into account not to promote the government's favoured
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."
Father Bernas further elaborated on this matter, as
follows:
"In effect, what non-establishment calls for is government
neutrality in religious matters. Such government neutrality may be
summarized in four general propositions: (1) Government must not prefer
one religion over another or religion over irreligion because such preference
would violate voluntarism and breed dissension; (2) Government funds
must not be applied to religious purposes because this too would violate
voluntarism and breed interfaith dissension; (3) Government action must
not aid religion because this too can violate voluntarism and breed interfaith
dissension; [and] (4) Government action must not result in excessive
entanglement with religion because this too can violate voluntarism and
breed interfaith dissension."
Establishment entails a positive action on the part of the State.
Accommodation, on the other hand, is passive. In the former, the State
becomes involved through the use of government resources with the
primary intention of setting up a state religion. In the latter, the State,
without being entangled, merely gives consideration to its citizens who
want to freely exercise their religion.
Re: Letter of Tony Valenciano
Held: Guided by the foregoing, it is our considered view that the
holding of Catholic masses at the basement of the QC Hall of Justice is not
a case of establishment, but merely accommodation. First, there is no law,
ordinance or circular issued by any duly constitutive authorities expressly
mandating that judiciary employees attend the Catholic masses at the
basement. Second, when judiciary employees attend the masses to profess
their faith, it is at their own initiative as they are there on their own free will
and volition, without any coercion from the judges or administrative
officers. Third, no government funds are being spent because the lightings
and airconditioning continue to be operational even if there are no religious
rituals there. Fourth, the basement has neither been converted into a Roman
Catholic chapel nor has it been permanently appropriated for the exclusive
use of its faithful. Fifth, the allowance of the masses has not prejudiced
other religions.
So long as  the use of  public property for religious purposes is
incidental and temporary, and such as to be reasonably compatible with  the
use td which other  members  of  th«  community  are similarly entitled, or 
may be authorized to make, the injunction in section  23(3)  of Article  VI
of the  Constitution is not infringed.
Valmores v. Achacoso
Held: Our fundamental Law explicitly provides under Section 5
of the Bill of Rights that "The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever
be allowed." In this regard, the Commission is obligated to ensure that all
higher education institutions render proper respect and compliance to this
constitutional right, while at the same time acknowledging the exercise of
their academic freedom also guaranteed under the Constitution.
The Commission of Higher Education therefore clarifies that in
implementing the aforementioned policy, [higher education institutions]
shall be enjoined to: (1) excuse students from attendance/participation in
school or related activities if such schedule conflicts with the exercise of
their religious obligations, and (2) allow faculty, personnel and staff to
Page | 16
forego attendance during academic and related work and activities
scheduled on days which would conflict with the exercise of their religious
freedom. Instead, the affected students, faculty, personnel and staff may
be allowed to do remedial work to compensate for absences, within the
bounds of school rules and regulations without their grades being affected,
or with no diminution in their salaries or leave credits or performance
evaluation/assessment, provided they submit a certification or proof of
attendance/participation duly signed by their pastor, priest, minister or
religious leader for periods of absence from classes, work or school
activities.
Laws, such as Article 133 of the Revised Penal Code,
which punishes blasphemy or acts notoriously offensive to the
feelings of the faithful in a place devoted to religious worship or
during the celebration of a religious ceremony, do not violate the
freedom of religion.
Article 133 of the RPC does not encroach on the freedom
of expression as it does not regulate free speech. The gravamen of
the penal statute is the disruption of a religious ceremony and/or
worship by committing acts that are notoriously offensive to the
feelings of the faithful inside a place devoted to religious worship
or during the celebration of a religious ceremony. There is nothing
in the provision that imposes criminal liability on anyone who
wishes to express dissent on another religious group. It does not
seek to prevent or restrict any person from expressing his political
opinions or criticisms against the Catholic Church, or any religion.
Article 133 of the RPC does not regulate only spoken words. It
encompasses all acts that are notoriously offensive to the religious
feelings. Such acts are within the State's authority to regulate
[Celdran v. People].
The Lemon Test
The "Lemon test", which has been extensively applied by
the U. S. Supreme Court in issues involving the determination of
non-establishment of religion clause originated from the case
of Lemon vs. Kurtzman. In that case, the Court used a three-
pronged test to adjudge whether the assailed governmental act
violated the First Amendment, as follows:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither
advances nor inhibits religion; and,
3. The statute must not foster "an excessive government
entanglement with religion."
Peralta v. PhilPost
Held: The printing of the INC commemorative stamp did not
amount to a violation of the non-establishment of religion clause
There is no quibbling that as to the 50,000 stamps ordered,
printed and issued to INC, the same did not violate the Constitutional
prohibitions separating State matters from religion. Per paragraphs 5 and 6
of the MOA between PhilPost and INC provided that:
5. Upon signing of this Agreement, INC shall pay m cash or by
manager's check an amount equivalent to fifty percent (50%) of the value of
the stamps, first day covers and other philatelic products ordered to be
purchased by INC, the fifty percent (50%) balance shall be paid upon
approval of the final stamp design/s by the PPC Stamps Committee.
6. Unless the total cost of the stamps and other related products
ordered by the INC is paid, PPC shall have the authority to hold the printing
of the stamps and other philatelic products. Only upon payment of the full
amount of the purchased stamps that the same shall be printed, delivered to
INC, circulated and/or sold to collectors and the mailing public.
It is plain, that the costs for the printing and issuance of the
aforesaid 50,000 stamps were all paid for by INC. Any perceived use of
government property, machines or otherwise, is de minimis and certainly do
not amount to a sponsorship of a specific religion.
Also, We see no violation of the Constitutional prohibition on
establishment of religion, insofar as the remaining 1,150,000 pieces of
stamps printed and distributed by PhilPost. First, there is no law mandating
anyone to avail of the INC commemorative stamps, nor is there any law
purporting to require anyone to adopt the INC's teachings. Arguably, while
then President Aquino issued Proclamation No. 815, s. 2014, authorizing
the issuance of the INC commemorative stamp, the same did not contain
any legal mandate endorsing or requiring people to conform to the INC's
teachings.
The design of the INC commemorative stamp is merely an
acknowledgment of the historical and cultural contribution of INC to the
Philippine society. Adopting the stance of benevolent neutrality, this Court
deems the design of the INC commemorative stamp constitutionally
permissible. As correctly held by the CA, there is an intrinsic historical
value in the fact that Felix Y Manalo is a Filipino and that the INC is a
Filipino institution. Both matters, "culture" and "national development," are
secular in character. Further, it cannot be denied that the part of the late
Felix Y. Manalo's cultural and historical contribution is his founding of the
INC. This circumstance, however, does not immediately put it in a religious
light if it is only the historical fact of establishment which is being
mentioned, i.e., adding nothing more and without regard to its doctrine and
teachings.
Aglipay v. Ruiz
Held: Act No. 4052 contemplates no religious purpose in view.
What it gives the Director of Posts is the discretionary power to determine
when the issuance of special postage stamps would be "advantageous to the
Government." Of course, the phrase "advantageous to the Government"
does not authorize the violation of the Constitution. It does not authorize
the appropriation, use or application of public money or property for the
use, benefit or support of a particular sect or church. In the present case,
however, the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was not
inspired by any sectarian denomination. The stamps were not issue and sold
for the benefit of the Roman Catholic Church. Nor were money derived
from the sale of the stamps given to that church. On the contrary, it appears
from the latter of the Director of Posts of June 5, 1936, incorporated on
page 2 of the petitioner's complaint, that the only purpose in issuing and
selling the stamps was "to advertise the Philippines and attract more tourist
to this country." The officials concerned merely, took advantage of an event
considered of international importance "to give publicity to the Philippines
and its people"
We are of the opinion that the Government should not be
embarassed in its activities simply because of incidental results, more or
less religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordinate to mere incidental results not
contemplate
B. FREE EXERCISE CLAUSE
The constitution embraces two concepts, that is, freedom
to believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to
regulation for the protection of society. The freedom to act must
have appropriate definitions to preserve the enforcement of that
protection. In every case, the power to regulate must be so
exercised, in attaining a permissible end, as not to unduly infringe
on the protected freedom.
Whence, even the exercise of religion may be regulated,
at some slight inconvenience, in order that the State may protect its
citizens from injury. Without doubt, a State may protect its citizens
from fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to
regulate the time and manner of solicitation generally, in the
interest of public safety, peace, comfort, or convenience.
In a nutshell, the Constitution guarantees the freedom to
believe absolutely, while the freedom to act based on belief is
subject to regulation by the State when necessary to protect the
Page | 17
rights of others and in the interest of public welfare [Centeno v.
Villalon-Pornillos].
Religious freedom, however, is not absolute. It cannot
have its way if there is a compelling state interest. In Estrada v.
Escritor, the Court expounded on the test as follows:
The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the
state's interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state
in preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys
a preferred position in the hierarchy of rights - "the most inalienable and
sacred of all human rights", in the words of Jefferson. This right is sacred
for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty, thus the
Filipinos implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead, only
a compelling interest of the state can prevail over the fundamental
right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to
batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious
liberty, reasonableness shall be the guide. The "compelling state interest"
serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays.
In the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which,
religious liberty will not be preserved.
1. Flag Salute
Ebralinag v. Secretary of Education
Held: "The sole justification for a prior restraint or limitation on
the exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135
SCRA 514, 517) is the existence of a grave and present 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, that the State
has a right (and duty) to prevent." Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified.
We hold that a similar exemption may be accorded to the
Jehovah's Witnesses with regard to the observance of the flag ceremony out
of respect for their religious beliefs, however "bizarre" those beliefs may
seem to others. Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt such patriotic exercises.
Paraphrasing the warning cited by this Court in Non vs. Dames II, 185
SCRA 523, 535, while the highest regard must be afforded their right to the
free exercise of their religion, "this should not be taken to mean that school
authorities are powerless to discipline them" if they should commit
breaches of the peace by actions that offend the sensibilities, both religious
and patriotic, of other persons. If they quietly stand at attention during the
flag ceremony while their classmates and teachers salute the flag, sing the
national anthem and recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose "a grave and present
danger of a serious evil to public safety, public morals, public health or any
other legitimate public interest that the State has a right (and duty) to
prevent"
2. Freedom to propagate religious doctrines
The individual is free to believe (or disbelieve) as he
pleases concerning the hereafter. He may indulge his own theories
about life and death; worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the divinity of God or
of any being that appeals to his reverence; recognize or deny the
immortality of his soul — in fact, cherish any religious conviction
as he and he alone sees.
But where the individual externalizes his beliefs in acts
or omissions that affect the public, his freedom to do so becomes
subject to the authority of the State. As great as this liberty may be,
religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the
rights of others. It is error to think that the mere invocation of
religious freedom will stalemate the State and render it impotent in
protecting the general welfare. The inherent police power can be
exercised to prevent religious practices inimical to society. And
this is true even if such practices are pursued out of sincere
religious conviction and not merely for the purpose of evading the
reasonable requirements or prohibitions of the law [Re: Letter of
Tony Valenciano].
. In American Bible Society v. City of Manila, the
Supreme Court held: "The constitutional guaranty of free exercise
and enjoyment of religious profession and worship carries with it
the right to disseminate religious information. Any restraint of such
right can be justified like other restraints on freedom of expression
on the ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent."
In Victoriano vs. Elizalde Rope Workers Union, we further ruled
that "x x x it is only where it is unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the
danger."
Iglesia Ni Cristo v. Court of Appeals
Held: We thus reject petitioner’s postulate that its religious
program is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious 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.
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of findings
of facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but
only by the showing of a substantive and imminent evil which has taken the
life of a reality already on ground.
Solicitation for religious purposes may be subject to
proper regulation by the State in the exercise of police power. State
regulations imposed on solicitations for religious purposes do not
constitute an abridgment of freedom of religion.
Whence, even the exercise of religion may be regulated,
at some slight inconvenience, in order that the State may protect its
citizens from injury. Without doubt, a State may protect its citizens
from fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to
regulate the time and manner of solicitation generally, in the
interest of public safety, peace, comfort, or convenience.
Page | 18
 It does not follow, therefore, from the constitutional
guaranties of the free exercise of religion that everything which
may be so called can be tolerated. It has been said that a law
advancing a legitimate governmental interest is not necessarily
invalid as one interfering with the “free exercise” of religion
merely because it also incidentally has a detrimental effect on the
adherents of one or more religion. Thus, the general regulation, in
the public interest, of solicitation, which does not involve any
religious test and does not unreasonably obstruct or delay the
collection of funds, is not open to any constitutional objection,
even though the collection be for a religious purpose. Such
regulation would not constitute a prohibited previous restraint on
the free exercise of religion or interpose an inadmissible obstacle to
its exercise.
Even with numerous regulative laws in existence, it is
surprising how many operations are carried on by persons and
associations who, secreting their activities under the guise of
benevolent purposes, succeed in cheating and defrauding a
generous public. It is in fact amazing how profitable the fraudulent
schemes and practices are to people who manipulate them. The
State has authority under the exercise of its police power to
determine whether or not there shall be restrictions on soliciting by
unscrupulous persons or for unworthy causes or for fraudulent
purposes. That solicitation of contributions under the guise of
charitable and benevolent purposes is grossly abused is a matter of
common knowledge. Certainly the solicitation of contributions in
good faith for worthy purposes should not be denied, but
somewhere should be lodged the power to determine within
reasonable limits the worthy from the unworthy. The objectionable
practices of unscrupulous persons are prejudicial to worthy and
proper charities which naturally suffer when the confidence of the
public in campaigns for the raising of money for charity is
lessened or destroyed. Some regulation of public solicitation is,
therefore, in the public interest [Centeno v. Villalon].
Centeno v. Villalon
Held: However, in the case at bar, considering that solicitations
intended for a religious purpose are not within the coverage of Presidential
Decree No. 1564, as earlier demonstrated, petitioner cannot be held
criminally liable therefor.
All contributions designed to promote the work of the church
are “charitable” in nature, since religious activities depend for their support
on voluntary contributions. However, “religious purpose” is not
interchangeable with the expression “charitable purpose.” While it is true
that there is no religious purpose which is not also a charitable purpose, yet
the converse is not equally true, for there may be a “charitable” purpose
which is nSot “religious” in the legal sense of the term. Although the term
“charitable” may include matters which are “religious,” it is a broader term
and includes matters which are not “religious,” and, accordingly, there
is a distinction between “charitable purpose” and “religious purpose,”
except where the two terms are obviously used synonymously, or where the
distinction has been done away with by statute.[ The word “charitable,”
therefore, like most other words, is capable of different significations. For
example, in the law, exempting charitable uses from taxation, it has a very
wide meaning, but under Presidential Decree No. 1564 which is a penal
law, it cannot be given such a broad application since it would be
prejudicial to petitioners.
To illustrate, the rule is that tax exemptions are generally
construed strictly against the taxpayer. However, there are cases wherein
claims for exemption from tax for “religious purposes” have been liberally
construed as covered in the law granting tax exemptions for “charitable
purposes.” Thus, the term “charitable purposes,” within the meaning of a
statute providing that the succession of any property passing to or for the
use of any institution for purposes only of public charity shall not be subject
to succession tax, is deemed to include religious purposes , A gift for
“religious purposes” was considered as a bequest for “charitable use” as
regards exemption from inheritance tax.
American Bible Society v. City of Manila
Held: the “right to proselytize’’ as part of religious freedom, and
invalidated the application of a City Ordinance imposing license fees on the
sale of merchandise to the sale of religious tracts. Citing this case, the
Supreme Court said in Iglesia ni Cristo v. Court of Appeals, that the
constitutional guarantee of free exercise of religious profession and worship
carries with it the right to disseminate religious information, and any
restraint of such right can be justified only on the ground that there is a
clear and present danger of an evil which the State has the right to prevent.
3. Exemption from union shops
In Victoriano v. Elizalde Rope Workers Union, the
Supreme Court upheld the validity of R.A. 3350, exempting
members of a religious sect from being compelled to join a labor
union.
V. LIBERTY OF ABODE AND OF TRAVEL
Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety or public
health, as may be provided by law.
Jurisprudence provides that this right refers to the right to
move freely from the Philippines to other countries or within the
Philippines. It is a right embraced within the general concept of
liberty. Liberty - a birthright of every person - includes the power
of locomotion and the right of citizens to be free to use their
faculties in lawful ways and to live and work where they desire or
where they can best pursue the ends of life [SPARK v. Quezon
City].
Liberty under the foregoing clause includes the right to
choose one's residence, to leave it whenever he pleases and to
travel wherever he wills. Thus, in Villavicencio vs. Lucban, the
Supreme Court held illegal the action of the Mayor of Manila in
expelling women who were known prostitutes and sending them to
Davao in order to eradicate vices and immoral activities
proliferated by the said subjects. It was held that regardless of the
mayor's laudable intentions, no person may compel another to
change his residence without being expressly authorized by law or
regulation.
The 1987 Constitution has split the two freedoms into
two distinct sentences and treats them differently. Article III,
Section 6 of the 1987 Constitution should be interpreted to mean
that while the liberty of travel may be impaired even without Court
Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose
limitations.  They can impose limits only on the basis of "national
security, public safety, or public health" and "as may be provided
by law," a limitive phrase which did not appear in the 1973 text.
Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the
previous regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of an
interested party [Silverio v. Court of Appeals].
Nevertheless, grave and overriding considerations of
public interest justify restrictions even if made against fundamental
rights. Specifically on the freedom to move from one place to
another, jurisprudence provides that this right is not absolute. As
the 1987 Constitution itself reads, the State may impose limitations
on the exercise of this right, provided that they: (1) serve the
interest of national security, public safety, or public health;
and (2) are provided by law [SPARK v. Quezon City]. Clearly,
under the provision, there are only three considerations that may
Page | 19
permit a restriction on the right to travel: national security, public
safety or public health. As a further requirement, there must be an
explicit provision of statutory law or the Rules of Court providing
for the impairment. The requirement for a legislative enactment
was purposely added to prevent inordinate restraints on the person's
right to travel by administrative officials who may be tempted to
wield authority under the guise of national security, public safety
or public health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that
provisions of law limiting the enjoyment of liberty should be
construed against the government and in favor of the individual
[Genuino v. De Lima].
SPARK v. Quezon City
Held: The stated purposes of the Curfew Ordinances,
specifically the promotion of juvenile safety and prevention of juvenile
crime, inarguably serve the interest of public safety. The restriction on the
minor's movement and activities within the confines of their residences and
their immediate vicinity during the curfew period is perceived to reduce the
probability of the minor becoming victims of or getting involved in crimes
and criminal activities. As to the second requirement, i.e., that the limitation
"be provided by law," our legal system is replete with laws emphasizing the
State's duty to afford special protection to children, i.e., RA 7610, as
amended, RA 9775, RA 9262, RA 9851, RA 9344, RA 10364, RA
9211, RA 8980, RA 9288, and Presidential Decree (PD) 603, as amended.
Particularly relevant to this case is Article 139 of PD 603, which
explicitly authorizes local government units, through their city or municipal
councils, to set curfew hours for children.
Office of Administrative Services v. Macarine
Held: True, the right to travel is guaranteed by the Constitution.
However, the exercise of such right is not absolute. Section 6, Article III of
the 1987 Constitution allows restrictions on one’s right to travel provided
that such restriction is in the interest of national security, public safety or
public health as may be provided by law. This, however, should
by no means be construed as limiting the Court’s inherent power of
administrative supervision over lower courts. OCA Circular No. 49-2003
does not restrict but merely regulates, by providing guidelines to be
complied by judges and court personnel, before they can go on leave to
travel abroad. To “restrict” is to restrain or prohibit a person from doing
something; to “regulate” is to govern or direct according to rule.
Mirasol v. DPWH
Held: A toll way is not an ordinary road. As a facility designed
to promote the fastest access to certain destinations, its use, operation, and
maintenance require close regulation. Public interest and safety require the
imposition of certain restrictions on toll ways that do not apply to ordinary
roads. As a special kind of road, it is but reasonable that not all forms of
transport could use it.
The right to travel does not mean the right to choose any vehicle
in traversing a toll way.  The right to travel refers to the right to move from
one place to another.  Petitioners can traverse the toll way any time they
choose using private or public four-wheeled vehicles.  Petitioners are not
denied the right to move from Point A to Point B along the toll way.   available.
Petitioners are free to access the toll way, much as the rest of the public
can. The mode by which petitioners wish to travel pertains to the manner of
using the toll way, a subject that can be validly limited by regulation.
There exists no absolute right to drive. On the contrary,
this privilege, is heavily regulated.  Only a qualified group is allowed to
drive motor vehicles: those who pass the tests administered by the LTO. A
driver's license issued by the LTO merely allows one to drive a particular
mode of transport. It is not a license to drive or operate any form of
transportation on any type of road. Vehicle registration in the LTO on the
other hand merely signifies the roadworthiness of a vehicle. This does not
preclude the government from prescribing which roads are accessible to
certain vehicles.
The right to travel refers to the right to move from one
place to another. As we have stated in Marcos v.
Sandiganbayan, "xxx a person's right to travel is subject to the
usual constraints imposed by the very necessity of safeguarding the
system of justice. In such cases, whether the accused should be
permitted to leave the jurisdiction for humanitarian reasons is a
matter of the court's sound discretion."  The Supreme rule laid
down by this Court is that a person facing a criminal indictment
and provisionally released on bail does not have an unrestricted
right to travel, the reason being that a person’s right to travel is
subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice [Cojuangco v. Sandiganbayan].
Office of Administrative Services v. Macarine
Held: True, the right to travel is guaranteed by the Constitution.
However, the exercise of such right is not absolute. Section 6, Article III of
the 1987 Constitution allows restrictions on one’s right to travel provided
that such restriction is in the interest of national security, public safety or
public health as may be provided by law. This, however, should
by no means be construed as limiting the Court’s inherent power of
administrative supervision over lower courts. OCA Circular No. 49-2003
does not restrict but merely regulates, by providing guidelines to be
complied by judges and court personnel, before they can go on leave to
travel abroad. To “restrict” is to restrain or prohibit a person from doing
something; to “regulate” is to govern or direct according to rule.
PROPOSED RULE ON PRECAUTIONARY
HOLD DEPARTURE ORDER
Section 1. Precautionary Hold Departure Order. — is an
order in writing issued by a court commanding the Bureau of
Immigration to prevent any attempt by a person suspected of a crime
to depart from the Philippines, which shall be issued ex-parte in cases
involving crimes where the minimum of the penalty prescribed by law
is at least six (6) years and one (1) day or when the offender is a
foreigner regardless of the imposable penalty.
Section 2. Where filed. — The application for a
precautionary hold departure order may be filed by a prosecutor with
any regional trial court within whose territorial jurisdiction the alleged
crime was committed: Provided, that for compelling reasons, it can be
filed with any regional trial court within the judicial region where the
crime was committed if the place of the commission of the crime is
known; Provided, further, that the regional trial courts in the City of
Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan
de Oro City shall also have the authority to act on applications filed by
the prosecutor based on complaints instituted by the National Bureau
of Investigation, regardless where the alleged crime was committed.
Section 3. Finding of probable cause. — Upon motion by the
complainant in a criminal complaint filed before the office of the city
or provincial prosecutor, and upon a preliminary determination of
probable cause based on the complaint and attachments, the
investigating prosecutor may file an application in the name of the
People of the Philippines for a precautionary hold departure order
(PHDO) with the proper regional trial court. The application shall be
accompanied by the complaint-affidavit and its attachments, personal
details, passport number and a photograph of the respondent, if
Section 4. Grounds for issuance. — A precautionary hold
departure order shall not issue except upon determination by the
judge, in whose court the application is filed, that probable cause
exists, and there is a high probability that respondent will depart from
the Philippines to evade arrest and prosecution of crime against him or
her. The judge shall personally examine under oath or affirmation, in
the form of searching questions and answers in writing, the applicant
and the witnesses he or she may produce on facts personally known to
them and attaching to the record their sworn statements.
If the judge finds that probable cause exists and there is a
high probability that the respondent will depart, he or she shall issue
the PHDO and direct the Bureau of Immigration to hold and prevent
the departure of the respondent at any Philippine airport or ports.
Otherwise, the judge shall order the dismissal of the application.
Page | 20
 Section 5. Preliminary finding of probable cause. — Since the
finding of probable cause by the judge is solely based on the complaint
and is specifically issued for the purpose of issuing the PHDO, the same
shall be without prejudice to the resolution of the prosecutor of the
criminal complaint considering the complaint-affidavit, counter-
affidavit, reply-affidavit, and the evidence presented by both parties
during the preliminary investigation. If the prosecutor after
preliminary investigation dismisses the criminal complaint for lack of
probable cause then the respondent may use the dismissal as a ground
for the lifting of the PHDO with the regional trial court that issued the
order. If the prosecutor finds probable cause and files the criminal
information, the case with the court that issued the PHDO, on motion
of the prosecutor shall be consolidated with the court where the
criminal information is filed.
Section 6. Form and validity of the precautionary hold
departure order. — The precautionary hold departure order shall
indicate the name of the respondent, his or her alleged crime, the time
and place of its commission, and the name of the complainant. (See
Annex "A" herein). A copy of the application, personal details,
passport number, photograph of the respondent, if available, shall be
appended to the order. The order shall be valid until lifted by the
issuing court as may be warranted by the result of the preliminary
investigation.
The court shall furnish the Bureau of Immigration with a
duly certified copy of the hold departure order within twenty-four (24)
hours from issuance.
Section 7. Lifting of the Order. — The respondent may file a
verified motion before the issuing court for the temporary lifting of
PHDO on meritorious ground; that, based on the complaint-affidavit
and the evidence that he or she will present, there is doubt that
probable cause exists to issue the PHDO or it is shown that he or she is
not a flight risk: Provided, that the respondent posts a bond; Provided,
further, that the lifting of the PHDO is without prejudice to the
resolution of the preliminary investigation against the respondent.
Section 8. Bond. — Respondent may ask the issuing court to
allow him or her to leave the country upon posting of a bond in an
amount to be determined by the court subject to the conditions set
forth in the Order granting the temporary lifting of the PHDO.
Section 9. Effectivity. — This Rule shall take effect within
fifteen (15) days following its publication in two (2) newspapers of
general circulation in the Philippines.
VI. THE NON-IMPAIRMENT CLAUSE
Section 10. No law impairing the obligation of contracts shall
be passed.
Impairment is anything that diminishes the efficacy of
the contract. There is substantial impairment when the law changes
the terms of a legal contact between the parties, either in the time
or mode of performance, or imposes new conditions, or dispenses
with those expressed, or authorizes for its satisfaction something
different from that provided in its terms [Clements v. Nolting].
Since the non-impairment clause was adopted here, The
Supreme Court has said that its purpose is to protect purely private
agreements from State interference. This is to "encourage trade and
credit by promoting confidence in the stability of contractual
relations."
According to the institutional regularity approach, the
non-impairment clause serves as a guarantee of the separation of
powers between the judicial and legislative branches of the
government. The non impairment clause serves as a check on the
legislature "to act only through generally applicable laws
prescribing rules of conduct that operate prospectively." A law
imposing a new penalty, or a new liability or disability, or giving a
new right of action, must not be construed as having a retroactive
effect. It is an elementary rule of contract that the laws in force at
the time the contract was made must govern its interpretation and
application. Laws must be construed prospectively and not
retrospectively. If a contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired,
which is prohibited by the organic law of the Philippine Islands
[PBOAP v. DOLE].
Limitations
Not all contracts, however, are protected under the non-
impairment clause. Contracts whose subject matters are so related
to the public welfare are subject to the police power of the State
and, therefore, some of its terms may be changed or the whole
contract even set aside without offending the Constitution;
otherwise, "important and valuable reforms may be precluded by
the simple device of entering into contracts for the purpose of
doing that which otherwise may be prohibited." Likewise, contracts
which relate to rights not considered property, such as a franchise
or permit, are also not protected by the non-impairment clause. The
reason is that the public right or franchise is always subject to
amendment or repeal by the State, [171] the grant being a mere
privilege. In other words, there can be no vested right in the
continued grant of a franchise. Additional conditions for the grant
of the franchise may be made and the grantee cannot claim
impairment [PBOAP v. DOLE].
Similar to the right to due process, the right to non-
impairment yields to the police power of the State.
It is settled that the constitutional guaranty of non-
impairment is limited by the exercise of the police power of the
State, in the interest of public health, safety, morals and general
welfare. It is a basic rule in contracts that the law is deemed written
into the contract between the parties. The incorporation of
regulations into contracts is a postulate of the police power of the
State [SWS v. COMELEC]. While non-impairment of contracts is
constitutionally guaranteed, the rule is not absolute, since it has to
be reconciled with the legitimate exercise of police power, i.e., "the
power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the
people." Invariably described as "the most essential, insistent, and
illimitable of powers" and "in a sense, the greatest and most
powerful attribute of government," the exercise of the power may
be judicially inquired into and corrected only if it is capricious,
whimsical, unjust or unreasonable, there having been a denial of
due process or a violation of any other applicable constitutional
guarantee [Ortigas and Co. V. Feati Bank].
SWS v. COMELEC
Held: We sustain the validity of Resolution No. 9674. The
names of those who commission or pay for election surveys, including
subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of
the Fair Election Act. This requirement is a valid regulation in the exercise
of police power and effects the constitutional policy of "guarantee[ing]
equal access to opportunities for public service[.]" [47] Section 5.2(a)'s
requirement of disclosing subscribers neither curtails petitioners' free
speech rights nor violates the constitutional proscription against the
impairment of contracts.
This case does not involve a "capricious, whimsical, unjust or
unreasonable" regulation. We have demonstrated that not only an important
or substantial state interest, but even a compelling one anchors Resolution
No. 9674's requirement of disclosing subscribers to election surveys. It
effects the constitutional policy of "guarantee[ing] equal access to
opportunities for public service"[141] and is impelled by the imperative of
"fair" elections.
As a valid exercise of COMELEC's regulatory powers,
Resolution No. 9674 is correctly deemed written into petitioners' existing
contracts.
Page | 21
 Franchises, privileges, licenses, etc., do not come within
the context of the provision. See Sec. 11, Art. XII, which provides
that “Neither shall any such franchise or right be granted except
under the condition that it shall be subject to amendment, alteration
or repeal by the Congress when the common good so requires”.
Thus, in C & M Timber Corporation v. Alcala, the Supreme Court,
quoting Ysmael v. Deputy Executive Secretary, declared: “Timber
licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. They merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest
products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interest so
requires.
VII. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
Section 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any
other means which vitiates the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for
violations of this section, as well as compensation to and rehabilitation
of victims of torture or similar practices, and their families.
A. CUSTODIAL INVESTIGATION/INTERROGATION
Custodial interrogation means any questioning initiated
by law enforcement authorities after a person is taken into custody
or otherwise deprived of his freedom of action in any significant
manner.  Indeed, a person under custodial investigation is
guaranteed certain rights which attach upon the commencement
thereof, viz: (1) to remain silent, (2) to have competent and
independent counsel preferably of his own choice, and (3) to be
informed of the two other rights above [Tangegee v. People].
The purposes of the safeguards prescribed by Miranda
are to ensure that the police do not coerce or trick captive suspects
into confessing, to relieve the “inherently compelling pressures”
“generated by the custodial setting itself,” “which work to
undermine the individual’s will to resist,” and as much as possible
to free courts from the task of scrutinizing individual cases to try to
determine, after the fact, whether particular confessions were
voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors as they are by
questioning of persons suspected of felonies [Berkermer v.
Macarty].
The US Supreme Court in Miranda v. Arizona spells out
in precise words the occasion for the exercise of the new right and
the protections that it calls for. The occasion is when an individual
is subjected to police interrogation while in custody at the station
or otherwise deprived of his freedom in a significant way. It is
when custodial investigation is underway that the certain
procedural safeguards takes over – the person must be warned prior
to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any
questioning.
The guarantees of Sec. 12 (1), Art. III of the 1987
Constitution, or the so-called Miranda rights, may be invoked only
by a person while he is under custodial investigation. Custodial
investigation starts when the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police who starts the
interrogation and propounds questions to the person to elicit
incriminating statements.
Luz v. People
Held: At the time that he was waiting for PO3 Alteza to write
his citation ticket, petitioner could not be said to have been “under arrest.”
There was no intention on the part of PO3 Alteza to arrest him, deprive him
of his liberty, or take him into custody. Prior to the issuance of the ticket,
the period during which petitioner was at the police station may be
characterized merely as waiting time. In fact, as found by the trial court,
PO3 Alteza himself testified that the only reason they went to the police
sub-station was that petitioner had been flagged down “almost in front” of
that place. Hence, it was only for the sake of convenience that they were
waiting there. There was no intention to take petitioner into custody.
In Berkemer v. McCarty, the United States (U.S.) Supreme Court
discussed at length whether the roadside questioning of a motorist detained
pursuant to a routine traffic stop should be considered custodial
interrogation. The Court held that, such questioning does not fall under
custodial interrogation, nor can it be considered a formal arrest, by virtue of
the nature of the questioning, the expectations of the motorist and the
officer, and the length of time the procedure is conducted. It ruled as
follows:
It must be acknowledged at the outset that a traffic stop
significantly curtails the “freedom of action” of the driver and the
passengers, if any, of the detained vehicle. Under the law of most States, it
is a crime either to ignore a policeman’s signal to stop one’s car or, once
having stopped, to drive away without permission. x x x
However, we decline to accord talismanic power to the phrase in
the Miranda opinion emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced strictly, but only in those
types of situations in which the concerns that powered the decision are
implicated. Thus, we must decide whether a traffic stop exerts upon a
detained person pressures that sufficiently impair his free exercise of his
privilege against self-incrimination to require that he be warned of his
constitutional rights.
De Castro v. People
Held: By a fair analogy, the accused in the case before us may
not be said to be under custodial investigation. She was not even being
investigated by any police or law enforcement officer.  She was under
administrative investigation by her superiors in a private firm and in purely
voluntary manner. She was not restrained of her freedom in any manner.
She was free to stay or go.  There was no evidence that she was forced or
pressured to say anything. It was an act of conscience that compelled her to
speak, a true mental and moral catharsis that religion and psychology
recognize to have salutary effects on the soul.  In this setting, the invocation
of the right to remain silent or to counsel is simply irrelevant.
People v Posada
Held: Applying the foregoing definitions, accused-appellant was
not under custodial investigation when he admitted, without assistance of
counsel, to PO1 Torre and PO1 Macusi that he stabbed his father to death.
Accused-appellant's verbal confession was so spontaneously and
voluntarily given and was not elicited through questioning by the police
authorities. It may be true that PO1 Macusi asked accused-appellant who
killed his father, but PO1 Macusi only did so in response to accused-
appellant's initial declaration that his father was already dead. At that point,
PO1 Macusi still had no idea who actually committed the crime and did not
consider accused-appellant as the suspect in his father's killing. Accused-
appellant was also merely standing before PO1 Torre and PO1 Macusi in
front of the Camiling Police Station and was not yet in police custody.
Page | 22
 Invitation/Request for appearance
Republic Act No. 7438 expanded the definition of
custodial investigation to “include the practice of issuing an
‘invitation’ to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to the
liability of the ‘inviting’ officer for any violation of law.” This
means that even those who voluntarily surrendered before a police
officer must be apprised of their Miranda rights. Further, a
"request for appearance" issued by law enforcers to a person
identified as a suspect is akin to an "invitation." Thus, the suspect
is covered by the rights of an accused while under custodial
investigation. Any admission obtained from the "request for
appearance" without the assistance of counsel is inadmissible in
evidence [People v. Guting].
People v. Guting
Held: The circumstances surrounding petitioner's appearance
before the police station falls within the definition of custodial
investigation. Petitioner was identified as a suspect in the theft of large
cattle. Thus, when the request for appearance was issued, he was already
singled out as the probable culprit.
People v. Chavez discussed that the so-called Miranda rights
"are intended to protect ordinary citizens from the pressures of a custodial
setting." The confrontation between Teresita and petitioner can be
considered as having been done in a custodial setting because (1) petitioner
was requested to appear by the police; (2) the confrontation was done in a
police station; and (3) based on his testimony, PO3 Lozarito was inside the
police station during the confrontation. When petitioner appeared before
Teresita at the police station, the "pressures of a custodial setting" were
present.
People v. Cabanada
Held: Applying the foregoing, Cabanada was not under
custodial investigation when she made the confession, without counsel, to
PO2 Cotoner that she took the missing P20,000.00. The prosecution
established that the confession was elicited during the initial interview of
the police after Catherine called to report the missing money and personal
effects. The investigation was still a general inquiry of the crime and has
not focused on a particular suspect. Also, she admitted to the crime while at
the residence of her employer, thus, she was not yet taken into custody or
otherwise deprived of her freedom.
Infraction of the rights of an accused during custodial
investigation or the so-called Miranda Rights render inadmissible
only the extrajudicial confession or admission made during such
investigation. "The admissibility of other evidence, provided they
are relevant to the issue and is not otherwise excluded by law or
rules, is not affected even if obtained or taken in the course of
custodial investigation [Ho Wai Pang v. People].
People v. Chi Chan Liu
Held: Anent appellants’ claim that their constitutional rights
were further violated for during custodial investigation, they did not have
counsel of their choice nor were they provided with one, this deserves scant
consideration since the same is relevant and material only when an
extrajudicial admission or confession extracted from an accused becomes
the basis of his conviction. In this case, neither one of the appellants
executed an admission or confession. In fact, as the records clearly show,
appellants barely even spoke and merely kept repeating the phrase “call
China, big money.” The trial court convicted them not on the basis of
anything they said during custodial investigation but on other convincing
evidence such as the testimonies of the prosecution witnesses. Verily, there
was no violation of appellants’ constitutional right to counsel during
custodial investigation.
Custodial investigation vs. Preliminary Investigation
In Ladiana v. People, the Court defined the difference
between custodial investigation and preliminary
investigation: Custodial Interrogation/Investigation is the
questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of
action in any significant way; on the other hand, Preliminary
Investigation is an inquiry or a proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a
crime has been committed, and that the respondent is probably
guilty thereof and should be held for trial. The import of the
distinction between custodial interrogation and preliminary
investigation relates to the inherently coercive nature of a custodial
interrogation which is conducted by the police authorities. Due to
the interrogatory procedures employed by police authorities, which
are conducive to physical and psychological coercion, the law
affords arrested persons constitutional rights to guarantee the
voluntariness of their confessions and admissions, and to act as
deterrent from coercion by police authorities. These safeguards are
found in Article III, Section 12(1) of the Constitution and Section 2
of R.A. No. 7438. Sans proper safeguards, custodial investigation
is a fertile means to obtain confessions and admissions in duress.
Assistance of competent and independent counsel
preferably of his own choice
To be a competent and independent counsel in a
custodial investigation, “the lawyer so engaged should be present at
all stages of the interview, counselling or advising caution
reasonably at every turn of the investigation, and stopping the
interrogation once in a while either to give advice to the accused
that he may either continue, choose to remain silent or terminate
the interview.” It has been made clear that counsel should be
present and able to advise and assist his client from the time the
confessant answers the first question until the signing of the
extrajudicial confession. “Moreover, the lawyer should ascertain
that the confession is made voluntarily and that the person under
investigation fully understands the nature and the consequence of
his extrajudicial confession in relation to his constitutional rights.
A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed
innocent.”
People v. Cachuela
Held: After a close reading of the records, we rule that Nabilgas’
confession was not made with the assistance of a competent and
independent counsel. The services of Atty. Melita Go, the lawyer who acted
in Nabilgas’ behalf, were provided by the very same agency investigating
Nabilgas – the NBI itself; she was assigned the task despite Nabilgas’ open
declaration to the agency’s investigators that he already had a lawyer in the
person of Atty. Donardo Paglinawan. Atty. Paglinawan confirmed this fact
when he stated that he was already representing Nabilgas at the time his
client made the alleged confession. Nabilgas also testified that Atty. Go did
not disclose that she was a lawyer when she was called to assist him; she
merely represented herself to be a mere witness to the confession. There
was also nothing in the records to show that Atty. Go ascertained whether
Nabilgas’ confession was made voluntarily, and whether he fully
understood the nature and the consequence of his extrajudicial confession
and its impact on his constitutional rights.
To be sure, this is not the kind of assistance required of lawyers
in a custodial investigation. "An ‘effective and vigilant counsel’ necessarily
and logically requires that the lawyer be present and [be] able to advise and
assist his client from the time the confessant answers the first question
asked by the investigating officer until the signing of the extrajudicial
confession."
In People v. Rapeza, we explained that the lawyer called
to be present during custodial investigations should, as far as
reasonably possible, be the choice of the individual undergoing
questioning. If the lawyer is furnished by the police for the
Page | 23
accused, it is important that the lawyer should be competent,
independent and prepared to fully safeguard the constitutional
rights of the accused, as distinguished from one who would merely
be giving a routine, peremptory and meaningless recital of the
individual's constitutional rights.
Ideally, the lawyer called to be present during such
investigations should be as far as reasonably possible, the choice of
the individual undergoing questioning, but the word "preferably"
does not convey the message that the choice of a lawyer by a
person under investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense.
What is imperative is that the counsel should be competent and
independent [People v. Tomaquin].
People v. Penaflor
Held: As borne by the records, the appointments of Atty.
Cavales and Atty. Cristobal as counsel de officio were with the conformity
of accused-appellant Peñaflor. They succeeded Atty. Padilla upon his
discharge as counsel for accused-appellant Peñaflor. The prosecutors
allowed accused-appellant Peñaflor to engage the services of the new
counsel.
B. NON-APPLICABILITY OF MIRANDA RULE TO
CONFESSIONS EXECUTED BEFORE JANUARY 17,
1973
The Supreme Court held that this specific portion of this
constitutional mandate has and should be given a prospective and
not a retrospective effect. Consequently, a confession obtained
from a person under investigation for the commission of an
offense, who has not been informed of his right (to silence and) to
counsel, is inadmissible in evidence if the same had been obtained
after the effectivity of the New Constitution on January 17, 1973.
Conversely, such confession is admissible in evidence against the
accused, if the same had been obtained before the effectivity of the
New Constitution, even if presented after January 17, 1973, and
even if he had not been informed of his right to counsel, since no
law gave the accused the right to be so informed before that date."
[People v. Ribadajo].  E.
C. NOT APPLICABLE TO RES GESTAE
STATEMENTS/SPONTANEOUS STATEMENTS
It has been held that the constitutional provision on
custodial investigation does not apply to a spontaneous statement,
not elicited through questioning by the authorities but given in an
ordinary manner whereby the suspect orally admits having
committed the crime. Neither can it apply to admissions or
confessions made by a suspect in the commission of a crime before
he is placed under investigation. What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The
rights under Section 12 of the Constitution are guaranteed to
preclude the slightest use of coercion by the state as would lead the
accused to admit something false, not to prevent him from freely
and voluntarily telling the truth [People v. Baloloy].
People v. Baloloy
Held: In the instant case, after he admitted ownership of the
black rope and was asked by Ceniza to tell her everything, JUANITO
voluntarily narrated to Ceniza that he raped GENELYN and thereafter
threw her body into the ravine. This narration was a spontaneous answer,
freely and voluntarily given in an ordinary manner. It was given before he
was arrested or placed under custody for investigation in connection with
the commission of the offense.
It may be stressed further that Cenizas testimony on the facts
disclosed to her by JUANITO was confirmed by the findings of Dr.
Lumacad. GENELYNs physical resistance and biting of the right shoulder
of JUANITO were proved by the wound on JUANITOs right shoulder and
scratches on different parts of his body. His admission that he raped
GENELYN was likewise corroborated by the fresh lacerations found in
GENELYNs vagina.
Moreover, JUANITO did not offer any evidence of improper or
ulterior motive on the part of Ceniza, which could have compelled her to
testify falsely against him. Where there is no evidence to show a doubtful
reason or improper motive why a prosecution witness should testify against
the accused or falsely implicate him in a crime, the said testimony is
trustworthy
D. NOT APPLICABLE TO STATEMENTS GIVEN IN
ADMINISTRATIVE INVESTIGATIONS
The rights above specified, to repeat, exist only in
"custodial interrogations," or "in-custody interrogation of accused
persons." And, as this Court has already stated, by custodial
interrogation is meant “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way” [Miranda
v. Arizona].
Admissions made during the course of an administrative
investigation do not come within the purview of Section 12. The
protective mantle of the constitutional provision also does not
extend to admissions or confessions made to a private individual,
or to a verbal admission made to a radio announcer who was not
part of the investigation, or even to a mayor approached as a
personal confidante and not in his official capacity.
Along the same vein, we held that a videotaped interview
showing the accused unburdening his guilt willingly, openly and
publicly in the presence of newsmen is not covered by the
provision although in so ruling, we warned trial courts to take
extreme caution in further admitting similar confessions because
we recognized the distinct possibility that the police, with the
connivance of unscrupulous media practitioners, may attempt to
legitimize coerced extrajudicial confessions and place them beyond
the exclusionary rule by having an accused admit an offense on
television.
CUSTODIAL PHASE OF THE INVESTIGATION –
POLICE LINEUPS
Police line-up is not part of the custodial investigation;
hence, the right to counsel guaranteed by the Constitution cannot
yet be invoked at this stage. This was settled in the case of People
vs. Lamsing and in the more recent case of People vs. Salvatierra.
The right to be assisted by counsel attaches only during custodial
investigation and cannot be claimed by the accused during
identification in a police line-up because it is not part of the
custodial investigation process. This is because during a police
line-up, the process has not yet shifted from the investigatory to the
accusatory and it is usually the witness or the complainant who is
interrogated and who gives a statement in the course of the line-up
[People v. Amestuzo].
In Gamboa v. Cruz, the Supreme Court ruled that “no
custodial investigation shall be conducted unless it be in the
presence of counsel, engaged by the person arrested, or by any
person in his behalf, or appointed by the court upon petition either
of the detainee himself, or by anyone in his behalf, and that, while
the right may be waived, the waiver shall not be valid unless made
in writing and in the presence of counsel.” However, this applies
only from the moment the investigating officer begins to ask
questions for the purpose of eliciting admissions, confessions, or
any information from the accused. A police line-up is not
considered part of any custodial inquest because it is conducted
before that stage is reached.
People v. Lara
Page | 24
 Held: Contrary to Lara’s claim, that he was not provided with
counsel when he was placed in a police line-up did not invalidate the
proceedings leading to his conviction. That he stood at the police line-up
without the assistance of counsel did not render Sumulong’s identification
of Lara inadmissible. The right to counsel is deemed to have arisen at the
precise moment custodial investigation begins and being made to stand in a
police line-up is not the starting point or a part of custodial investigation.
Dela Torre v. Court of Appeals
Held: In the instant case, petitioner de la Torre, together with the
other crewmembers of MERALCO truck number 522, was merely included
in a line-up of eight (8) persons from which he was picked out by Garcia as
the leader of the group which had removed the electric meters from the
CAPASSCO premises. Until then, the police investigation did not focus on
petitioner. Indeed, no questions were put to him. Rather, the questions were
directed to witnesses of the complainant. There is, therefore, no basis for
petitioner’s allegations that his rights as a suspect in a custodial
interrogation were violated.
People v. Pavillare
Held: The stage of an investigation wherein a person is asked to
stand in a police line-up has been held to be outside the mantle of
protection of the right to counsel because it involves a general inquiry into
an unsolved crime and is purely investigatory in nature. It has also been
held that an uncounseled identification at the police line-up does not
preclude the admissibility of an in-court identification. The identification
made by the private complainant in the police line-up pointing to Pavillare
as one of his abductors is admissible in evidence although the accused-
appellant was not assisted by counsel.
F. TEST OF VALIDITY OF WAIVER OF MIRANDA RIGHTS
Jurisprudence provides that extrajudicial confessions are
presumed to be voluntary. The condition for this presumption,
however, is that the prosecution is able to show that the
constitutional requirements safeguarding an accused’s rights during
custodial investigation have been strictly complied with, especially
when the extrajudicial confession has been denounced.  The
rationale for this requirement is to allay any fear that the person
being investigated would succumb to coercion while in the
unfamiliar or intimidating environment that is inherent in custodial
investigations.  Therefore, even if the confession may appear to
have been given voluntarily since the confessant did not file
charges against his alleged intimidators for maltreatment, the
failure to properly inform a suspect of his rights during a custodial
investigation renders the confession valueless and inadmissible
[People v. Sayaboc]. To be admissible in evidence, an extra-
judicial confession must be express and voluntarily executed in
writing with the assistance of an independent and competent
counsel, and a person under custodial investigation must be
continuously assisted by counsel from the very start thereof. The
presence of counsel is intended to secure the voluntariness of the
extra-judicial confession, and the assistance given must be
independent and competent, that is, providing full protection to the
constitutional rights of the accused [People v. Bagnate].
People v. Bagnate
Held: In the present case, the assistance rendered by Atty.
Brotamonte is more than perfunctory. Before the onset of the investigation,
Atty. Brotamonte privately conferred with appellant to ascertain the
voluntariness of his confession and to make sure that no force or duress was
employed by the police authorities on the latter to make him admit the
crimes charged. He informed appellant of his constitutional rights and was
clear in explaining to him the questions propounded by SPO2 Ambion
In People v. Obrero, the Supreme Court held that an
uncounseled statement is presumed by the Constitution to be
psychologically coerced.  Swept into an unfamiliar environment
and surrounded by intimidating figures typical of the atmosphere of
a police interrogation, the suspect needs the guiding hand of
counsel.
The right to be informed requires “the transmission of
meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle.” It
should allow the suspect to consider the effects and consequences
of any waiver he might make of these rights [People v. Sayaboc].
People v. Casimiro
The receipt states that a brick of dried marijuana leaves was
delivered by the suspect to a poseur buyer and signed by accused-appellant
Albert Casimiro as “suspect/ owner.” In effect, accused-appellant admitted
that he delivered a prohibited drug to another, which is an offense under the
law.   Having been made without the assistance of counsel, it cannot be
accepted as proof that marijuana was seized from him.  It is inadmissible in
evidence.
The warning was incomplete.  It did not include a statement that,
if accused-appellant could not afford counsel, one would be assigned to
him.  The warning was perfunctory, made without any effort to find out if
he understood it.  It was merely  ceremonial  and  inadequate  in
transmitting meaningful information to the suspect.[28] We cannot say that,
in signing the receipt without a lawyer, accused-appellant acted willingly,
intelligently, and freely.  What is more, the police investigators did not
pause long enough and wait for accused-appellant to say whether he was
willing to answer their questions even without the assistance of counsel or
whether he was waiving his right to remain silent at all.
What about extrajudicial confessions of one confessant
against the other co-accused?
The Supreme Court declares that although an
extrajudicial confession is admissible only against the confessant,
jurisprudence makes it admissible as corroborative evidence of
other facts that tend to establish the guilt of his co-
accused. In People vs. Alvarez, this Court ruled that where the
confession is used as circumstantial evidence to show the
probability of participation by the co-conspirator, that confession is
receivable as evidence against a co-accused. 
a. Pre-Galit rule (Jan. 17, 1973 to March 20, 1985)
This right to counsel existed on January 17, 1973
which is the effectivity of the 1973 Constitution. But, that
Constitution did not provide that the waiver of that right must be
made writing and in presence of counsel. Even if the right to
counsel already existed during that time, it can still be waived
without the addition requirements imposed after the 1987
Constitution.
Atty. Gil E. Garcia II:
What does that mean?
You can waive your right prior to that without it being in
writing. The testimony is admissible, because the waiver would be
considered as valid.
Does the rule have retroactive effect that requirement
that the waiver to be in writing and in presence of counsel?
No. We already learned that before in Filoteo vs.
Sandiganbayan.
Santos v. Sandiganbayan
Held: Article IV, Section 20 of the 1973 Constitution providing
for the rights of an accused during custodial investigation.  It reads:
"No person shall be compelled to be a witness against himself.  Any
person under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such rights.  No force, violence,
threat, intimidation, or any other means which vitiates the free will shall be used
against him.  Any confession obtained in violation of this section shall be inadmissible
in evidence."
Page | 25
 On the other hand, the first paragraph of Article III, Section 12
of the 1987 Constitution states:
"(1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice.  If the person cannot afford the
services of counsel, he must be provided with one.  These rights cannot be waived
except in writing and in the presence of counsel."
A comparison of these provisions would readily show that the
1973 Constitution does not specify the right against uncounselled waiver of
the right to counsel, which is found in paragraph 1, Section 12, Article III
of the 1987 Constitution.  However, the latter constitutional provision
cannot be applied to extrajudicial confessions made prior to its date of
effectivity.  In Filoteo, Jr. vs. Sandiganbayan, this Court held that:
"x x x the specific provision of the 1987 Constitution requiring that a
waiver by an accused of his right to counsel during custodial investigation must be
made with the assistance of counsel  may not be applied retroactively or in cases
where the extrajudicial confession was made prior to the effectivity of said
Constitution. Accordingly, waivers of the right to counsel during custodial
investigation without the benefit of counsel during the effectivity of the 1973
Constitution should, by such argumentation, be admissible.  Although a number of
cases held that extrajudicial confessions made while the 1973 Constitution was in
force and effect, should have been made with the assistance of counsel, the definitive
ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr.
vs. Enrile, issued the guidelines to be observed by law enforcers during custodial
investigation.  The Court specifically ruled that `(t)he right to counsel may be waived
but the waiver shall not be valid unless made with the assistance of counsel.'
Thereafter, in People vs. Luvendino, the Court through Mr. Justice Florentino P.
Feliciano vigorously taught:
`x x x.  The doctrine that an uncounselled waiver of the right to counsel is
not to be given legal effect was initially a judge-made one and was first announced on
26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs.
Galit. x x x.
While the Morales-Galit doctrine eventually became part of
Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to
appellant Luvendino for the requirements and restrictions outlined
in Morales and Galit have no retroactive effect and do not reach waivers
made prior to 26 April 1983 the date of promulgation of Morales.'"
Clearly then, the Morales-Galit rulings are inapplicable in these
cases as the extrajudicial confessions in question here, were taken on
February 13, February 17 and March 22, 1982, long before the date of
promulgation of the Morales Decision on April 26, 1983.  Prior to this date,
the guidelines requiring that waiver of the right to counsel by an accused
can be properly made only with the presence and assistance of counsel, had
yet to be formulated and pronounced by this Court
b. The Galit rule (March 20, 1985 to February 2,
1987)
In Morales vs. Enrile, The Supreme Court has laid down
the correct procedure for peace officers to follow when making an
arrest and in conducting a custodial investigation:
At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he must be
shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement
he might make could be used against him. The person arrested shall have
the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means - by telephone if possible - or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it
that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested, by
any person on his behalf, or appointed by the court upon petition either of
the detainee himself or by anyone on his behalf. The right to counsel may
be waived but the waiver shall not be valid unless made with the assistance
of counsel. Any statement obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence."
People v. Galit
Held: Herein, the only evidence against Galit is his alleged
confession. A long question followed by a monosyllabic answer does not
satisfy the requirements of the law that the accused be informed of his
rights under the Constitution and our laws. Instead there should be several
short and clear questions and every right explained in simple words in a
dialect or language known to the person under investigation. Galit is from
Samar and there is no showing that he understands Tagalog. Moreover, at
the time of his arrest, Galit was not permitted to communicate with his
lawyer, a relative, or a friend. In fact, his sisters and other relatives did not
know that he had been brought to the NBI for investigation and it was only
about two weeks after he had executed the salaysay that his relatives were
allowed to visit him. His statement does not even contain any waiver of
right to counsel and yet during the investigation he was not assisted by one.
At the supposed reenactment, again Galit was not assisted by counsel of his
choice. These constitute gross violations of his rights.
c. New rule on Waiver (Feb. 2, 1987)
Under the 1987 Constitution, the waiver must be in
writing and made in the presence of counsel of choice.
People v. Mendoza
Held: Indeed, the confession is inadmissible in evidence under
Article III, Section 12(1) and (3) of the Constitution, because it was given
under custodial investigation and was made without the assistance of
counsel. However, the defense failed to object to its presentation during the
trial with the result that the defense is deemed to have waived objection to
its admissibility. No error was, therefore, incurred by the trial court in
admitting evidence of the confession.
People v. Gonzales
Held: Enanoria's claim that his right to counsel was violated
does not hold water either. It is already beyond dispute that he was actively
assisted by a lawyer in the person of Atty. Jocom. The latter's presence
adequately fulfilled the constitutional requirement. It must be reiterated at
this point that the right to counsel is intended to preclude the slightest
coercion as would lead the accused to admit something false. The lawyer,
however, should never prevent an accused from freely and voluntarily
telling the truth. Verily, whether it is an extrajudicial statement or testimony
in open court, the purpose is always the ascertainment of truth.
G. THE BURDEN OF PROVING VOLUNTARINESS OF
WAIVERS IS ON THE PROSECUTION
To implement the right of persons under custodial
interrogation, R.A. No. 7438, Section 2(d) requires that any
confession must be in writing and signed by the confessant in the
presence of his counsel.
Decisions of the Supreme Court hold that for an
extrajudicial confession to be admissible in evidence, it must
satisfy the following requirements: (1) the confession must be
voluntary; (2) it must be made with the assistance of a competent
and independent counsel preferably of the confessant's choice; (3)
it must be express; and (4) it must be in writing.
People v. Bacor
Held: The Court finds that accused-appellant's confession
satisfies the said requirements.
First. Accused-appellant's confession, as quoted in the decision
of the Court of Appeals, leaves no doubt as to its voluntariness and
spontaneity. Accused-appellant does not deny that he surrendered to the
police on June 6, 1991, almost three months after the fatal shooting of
Dionesio Albores, and confessed to the crime because he "could no longer
bear a guilty conscience." In his testimony before the trial court, he
admitted that the signature on pages 1, 2, and 3 of his sworn confession
(Exh. B) was his without any claim that he was forced, coerced, or
threatened to make the confession. [6] Indeed, the details contained in his
confession could have been known to accused-appellant alone.
Second. Accused-appellant claims that he gave the confession
without being warned of his constitutional rights. This is not true. The
record shows that he was advised of his rights, particularly the right to
remain silent, not only once but thrice: first, by his counsel, Atty. Meriam
Anggot of Public Attorney's Office (PAO); second, by SPO3 Maharlika
Ydulzura, the investigator who took accused-appellant's confession; and
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lastly, by the branch clerk of court of the Regional Trial Court of Oroquieta
City, Atty. Nora Montejo-Lumasag, before whom accused-appellant swore
to the veracity of his confession. Each time, he was asked whether he was
willing to give a statement and he said he was. This is sufficient. Contrary
to accused-appellant's contention, there is no need for a separate and
express written waiver of his constitutional rights. Accused-appellant was
not arrested. He presented himself to the authorities to confess to the crime
because, he said, he was being bothered by his conscience. By voluntarily
executing his extrajudicial confession, which he did in the presence of and
with the assistance of counsel and after having been informed of his
constitutional rights, accused-appellant effectively waived his right to
remain silent.
Accused-appellant, when asked, said he wanted to have the
assistance of counsel. Atty. Anggot of PAO was appointed counsel de
officio to assist accused-appellant and the latter expressly accepted her
appointment as his counsel before giving his confession. [10] As this Court
has held, a PAO lawyer can be considered an independent counsel within
the contemplation of the Constitution considering that he is not a special
counsel, public or private prosecutor, counsel of the police, or a municipal
attorney whose interest is admittedly adverse to that of the accused-
appellant. Thus, the assistance of a PAO lawyer in the present case satisfies
the constitutional requirement of a competent and independent counsel for
the accused.
Judging from Atty. Anggot's testimony before the trial court,
there is no reason not to consider her a competent and independent counsel.
She testified that before the taking of accused-appellant's confession, she
requested SPO3 Ydulzura and the other policemen to step out of the room
so that she could privately confer with the accused-appellant, free from
pressure or intimidation.

H. EXCLUSIONARY RULE
It is well-settled that the Constitution abhors an
uncounselled confession or admission and whatever information is
derived therefrom shall be regarded as inadmissible in evidence
against the confessant [People v Janson].
In People v. Javar, this Court was clear in pronouncing
that any statement obtained in violation of the Constitution,
whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence. Even if the confession contains a grain of
truth, if it was made without the assistance of counsel, it becomes
inadmissible in evidence, regardless of the absence of coercion or
even if it had been voluntarily given. In People v.
Gomez, citing People v. Rodrigueza, this Court held that Section
12(1), Article III of the Constitution requires the assistance of
counsel to a person under custody even when he waives the right to
counsel.
Under the Constitution and existing law as well as
jurisprudence, a confession to be admissible must satisfy the
following requirements: (1) it must be voluntary; (2) it must be
made with the assistance of competent and independent counsel;
(3) it must be express; and (4) it must be in writing.
The purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized practice of
extracting confession by coercion no matter how slight, as would
lead the accused to admit something false. What is sought to be
avoided is the evil of extorting from the very mouth of the person
undergoing interrogation for the commission of an offense, the
very evidence with which to prosecute and thereafter convict him.
These constitutional guarantees have been made available to
protect him from the inherently coercive psychological, if not
physical, atmosphere of such investigation.
While the Constitution sanctions the waiver of the right
to counsel, it must, however, be voluntary, knowing, and
intelligent, made in the presence and with the assistance of
counsel, and it must be in writing. Indeed, any waiver of the right
to counsel without the assistance of counsel has no evidentiary
value.

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