G.R. No.

L-12592

March 8, 1918

THE UNITED STATES, plaintiff-appellee, vs. FELIPE BUSTOS, ET AL., defendants-appellants. Kincaid and Perkins for appellants. Acting Attorney-General Paredes, for appellee. MALCOLM, J.: This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of Pampanga. The appeal also submits the larger question of the attitude which the judiciary should take interpreting and enforcing the Libel Law in connection with the basic prerogatives of freedom of speech and press, and of assembly and petition. For a better understanding, the facts in the present appeal are the first narrated in the order of their occurrence, then certain suggestive aspects relative to the rights of freedom of speech and press and of assembly and petition are interpolated, then the facts are tested by these principles, and, finally, judgment is rendered. First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared and signed a petition to the Executive Secretary through the law office of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal. Crossfield and O'Brien submitted this petition and these affidavits with a complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four citizens apparently of considerable standing, including councilors and property owners (now the defendants), and contained the statements set out in the information as libelous. Briefly stated the specific charges against the justice of the peace were. 1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace, who first told her that he would draw up complaint for P5; afterwards he said he would take P3 which she paid; also kept her in the house for four

days as a servant and took from her two chickens and twelve "gandus;" 2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if he wished to win he must give him P50. Not having this amount, Sunga gave the justice nothing, and a few days later was informed that he had lost the case. Returning again to the office of the justice of the peace in order to appeal, the justice told him that he could still win if he would pay P50; 3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved. The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting investigation, proper action, and report. The justice of the peace was notified and denied the charges. The judge of first instance found the first count not proved and counts 2 and 3 established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby, recommended to the Governor-General that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to the Executive Secretary." Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and reopened the hearing; documents were introduced, including a letter sent by the municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal reasons; and the judge of first instance ordered a suppression of the charges against Punsalan and acquitted him the same. Attorneys for complainants thereupon appealed to the Governor-General, but whether the papers were forwarded to the Governor-General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of the following information: That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at said time and place justice of the peace of Macabebe and Masantol of this province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing appear among other things the following: That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to be a public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and consequently unworthy of the office. That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less serious, but which the undersigned refrain from citing herein for the sake of brevity and in order not to bother too much the attention of your Honor and due to lack of sufficient proof to substantiate them. That should the higher authorities allow the said justice of the peace of this town to continue in his office, the protection of the rights and interests of its inhabitants will be illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of Rights, and justice in this town will not be administered in accordance with law. That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace, previous to this time, some respectable citizens of this town of Macabebe were compelled to present an administrative case against the said Roman Punsalan Serrano before the judge of first instance of Pampanga, in which case there were made against him various charges which were true and

certain and of different characters. That after the said administrative case was over, the said justice of the peace, far from charging his bad and despicable conduct, which has roused the indignation of this town of Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock at the people and to show his mistaken valor and heroism.' All of this has been written and published by the accused with deliberate purpose of attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All contrary to law. It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge of first instance, the affidavits upon which based and concluding words, "To the Executive Secretary, through the office of Crossfield and O'Brien." The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in case of insolvency. New attorneys for the defense, coming into the case, after the handing down of the decision, file on December 16, 1916, a motion for a new trial, the principal purpose of which was to retire the objection interposed by the then counsel for the defendants to the admission of Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion. All the defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the following assignments of error: 1. The court erred in overruling the motion of the convicted defendants for a new trial. 2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their counsel to the admission in evidence of the expediente administrativo out of which the accusation in this case arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused of the affidavits upon which the petition forming the basis of the libelous charge was based. 4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged. 5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the alleged libelous statements were true and free from malice. 6. The court erred in not acquitting the defendants. 7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes. We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this court. As a matter of fact counsel for defendants in the lower court made an improvident objection to the admission of the administrative proceedings on the ground that the signatures were not identified and that the same was immaterial, which objection was partially sustained by the trial court. Notwithstanding this curious situation by reason of which the attorney for the defense attempted to destroy through his objection the very foundation for the justification of his clients, we shall continue to consider all the proceedings as before us. Not indicating specifically the reason for this action, let the following be stated: The administrative proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than to pick out certain words which standing by themselves and unexplained are libelous and then by shutting off all knowledge of facts which would justify these words, to convict the accused. The records in question are attached to the rollo, and either on the ground that the attorneys for the defense retired the objection to the introduction of the administrative proceedings by the prosecution, or that a new trial

should have been had because under section 42 of the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the trial," or because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are essential to a determination of the case, or finally, because of our conceded right to take judicial notice of official action in administrative cases and of judicial proceedings supplemental to the basis action, we examine the record as before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this action, the Government can not explain for it was the prosecution which tried to incorporate Exhibit A into the record. With these facts pleading justification, before testing them by certain principles which make up the law of libel and slander, we feel warranted in seizing the opportunity to intrude an introductory and general discussion of freedom of speech and press and assembly and petition in the Philippine Islands. We conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to place these basic rights in their proper light. Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien Aos" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the Filipinos insist upon, said: " The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting Filipinos delegates. The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the wants of the Filipino people demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and assembly and petition. Mention is made of the foregoing data only to deduce the proposition

that a reform so sacred to the people of these Islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself. Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances." The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution. We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the Organic Law of the Constitution of the Philippine Islands. These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But included are the following: The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust

accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary to any or all the agencies of Government public opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1) The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.) The right to assemble and petition is the necessary consequence of republican institutions and the complement of the part of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. Petition means that any person or group of persons can apply, without fear of penalty, to the

appropriate branch or office of the government for a redress of grievances. The persons assembling and petitioning must, of course, assume responsibility for the charges made. Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege. The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.) Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J. A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.) A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a selfseeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good

faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege. In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.) A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.) Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press and of assembly and petition, having emphasized the point that our Libel Law as a statute must be construed with reference to the guaranties of our Organic Law, and having sketched the doctrine of privilege, we are in a position to test the facts of this case with these principles. It is true that the particular words set out in the information, if said of a private person, might well be considered libelous per se. The charges might also under certain conceivable conditions convict one of a libel of a government official. As a general rule words imputing to a judge or a justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But as suggested in the beginning we do not have present a simple case of direct and vicious accusations published in the press, but of charges

predicated on affidavits made to the proper official and thus qualifiedly privileged. Express malice has not been proved by the prosecution. Further, although the charges are probably not true as to the justice of the peace, they were believed to be true by the petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in office existed is apparent. The ends and the motives of these citizens to secure the removal from office of a person thought to be venal were justifiable. In no way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous matter but on instances which not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of first instance to convince him of their seriousness. No undue publicity was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. And finally the charges and the petition were submitted through reputable attorneys to the proper functionary, the Executive Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the Governor-General, that they may be removed by the Governor-General upon the recommendation of a Judge of First Instance, or on the Governor-General's own motion, and that at the time this action took place the Executive Bureau was the office through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject to removal by the sovereign, a communication to the Secretary of State was privileged.) The present facts are further essentially different from those established in other cases in which private individuals have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.) The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with the exception that there has been more

publicity in the present instance and that the person to whom the charge was made had less jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild statements, with no basis in fact, made against reputable members of the judiciary, "to persons who could not furnish protection." Malicious and untrue communications are not privileged. A later case and one more directly in point to which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs. Commonwealth [1909], 122 So. W., 123.) We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out of constitutional guaranties in our bill of rights. Instead of punishing citizens for an honest endeavor to improve the public service, we should rather commend them for their good citizenship. The defendants and appellants are acquitted with the costs de officio. So ordered. Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur. Separate Opinions CARSON, J., concurring: I concur. I think it proper to observe, however, that in my opinion the Attorney-General is entirely correct when he says that this case is substantially identical with the former "Bustos case (The United States vs. Bustos, 13 Phil. Rep., 690). I believe that a careful reading of our decisions in these cases is sufficient to demonstrate that fact. The truth is that the doctrine of the prevailing opinion in the former Bustos case has long since been abandoned by this court; and in my opinion it would make for the more efficient administration of the Libel Law in these Islands to say so, in so many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U. S. vs. Contreras [1912], 23 Phil. Rep., 513; U. S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U. S. vs. Galeza [1915], 31 Phil. Rep., 365.)

G.R. No. 82380 April 29, 1988 AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.: Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below: The Four Day Revolution is a six hour mini-series about People Powera unique event in modern history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docudrama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history. First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists. Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos. The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution. Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere and forces

that combined to overthrow President Marcos. David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap'). Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period . The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with

the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus: WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto. xxx xxx xxx (Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent. Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. I The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy. Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a

principal medium of mass communication for information, education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and

dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9 Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said: Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549

[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said: Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: xxx xxx xxx The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the

particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." 1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert. 2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international

interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. 3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. 4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:" A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes

public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused. The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the

public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines. 5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent. II In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25

March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping." Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical. For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him. No pronouncement as to costs. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes and GrioAquino, JJ., concur.

G.R. No. L-65366 November 9, 1983 JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent. Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner. The Solicitor General for respondent.

FERNANDO, C.J.:

+.wph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any

action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8 The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter. 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits,

12

prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that

this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication

of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta. 4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper

policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31 5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the AntiBases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the

peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court. 6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of

speech which the Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37 7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a

peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression. 8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. 9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or

staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs. Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur. De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring: The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro. The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. " It bears emphasis that the burden to show the existence of grave and

imminent danger that would justify adverse action on the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2
t.hqw

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. * * * Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for) effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis supplied) The Court's opinion underscores that the exercise of the right is not to

be "abridged on the plea that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating:
t.hqw

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

concurring opinion in Fugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly, thus:
t.hqw

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

MAKASIAR, J., concurring: With the justification that in case of conflict, the Philippine

Constitution particularly the Bill of Rights should prevail over the Vienna Convention.

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

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

Separate Opinions

TEEHANKEE, J., concurring: The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro. The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. " It bears emphasis that the burden to show the existence of grave and

imminent danger that would justify adverse action on the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2
t.hqw

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. * * * Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for) effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis supplied) The Court's opinion underscores that the exercise of the right is not to

be "abridged on the plea that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating:
t.hqw

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

concurring opinion in Fugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly, thus:
t.hqw

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

MAKASIAR, J., concurring: With the justification that in case of conflict, the Philippine

Constitution particularly the Bill of Rights should prevail over the Vienna Convention.

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

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

AQUINO, J., dissenting: Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No. 7295 of the City of Manila.

G.R. No. 80806 October 5, 1989 LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner, vs. THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents. William C. Arceno for petitioner. Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.: The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We quote: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was "Pinoy

Playboy" magazines published and co-edited by plaintiff Leo Pita. On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should not be granted. On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14, 1983. In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were voluntarily surrendered by the vendors to the police authorities, and that the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided. The other defendant, WPD Superintendent, Narcisco Cabrera, filed

no answer. On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not". The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent motion for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for twenty days from date of its issuance. On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the issuance of a writ of preliminary injunction. On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not". On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved". Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "ReplyMemorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and dismissing the

case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press is not without restraint as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors: 1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers could without any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner for the writ of preliminary injunction. 4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the test, in determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to

such immoral influences and into whose hands a publication or other article charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9 Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa. Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical "community standard" whatever that is and that the question must supposedly be judged from case to case. About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their immaturity are not in a position to resist and

shield themselves from the ill and perverting effects of these pictures. 11

xxx xxx xxx As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not entitled to any constitutional protection. It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element that should accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case of obscenity? Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art. In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United States, adopted the test: "Whether to

the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial question and as a consequence, to temper the wide discretion Kottinger had given unto law enforcers. It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19 Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming social value," 21 marked yet another development. The latest word, however, is Miller v. California, 22 which expressly abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 24 (A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American sexuality.) The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have assumed that "obscenity" is not included

in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject as in all speech to regulation in the interests of [society as a whole] but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed." 28 In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most prestigious museums. But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the divergent perceptions of men and women that have probably compounded the problem rather than resolved it. What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight. In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition. However, this much we have to say. Undoubtedly, "immoral" lore or literature comes within the ambit of

free expression, although not its protection. In free expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present danger" that would warrant State interference and action. 30 But, so we asserted in Reyes v. Bagatsing, 31 "the burden to show the existence of grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]." 32 "There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger." 33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require." 34 "To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test." 35 The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue. It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure. As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come to terms with, and be held accountable for, due process. The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us back to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute? The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, 38 We defined police power as "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare ." 39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. We quote: Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the following rules: (a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed. (b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.) Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations of Section I hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed . 40

Under the Constitution, on the other hand: SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or "obscene". The Court is not ruling out warrantless searches, as the Rules of

Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of personarrested. A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner. We make this resume. 1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; 2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; 3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis and on His Honor's sound discretion. 4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; 5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene". These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code" 47 or the Revised Penal code . 48 WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and academic. SO ORDERED.

[G.R. No. 147571. May 5, 2001]

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. DECISION
MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

The term election surveys is defined in 5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as Survey). To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their

opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred

status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government thus carries a heavy burden of showing justification for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such media facilities for public information campaigns and forums among candidates.[4] This Court stated: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.[5] MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC,[6] this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be

adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking of weak and losing candidates by their parties, and the form of election cheating called dagdagbawas and invoking the States power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18) The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has

lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election

survey results. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. OBrien: [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.[8] This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have become canonical in the review of such laws.[9] It is noteworthy that the OBrien test has been applied by this Court in at least two cases.[10] Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the 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. Our inquiry should accordingly focus on these two considerations as applied to 5.4. First. Sec. 5.4 fails to meet criterion [3] of the OBrien 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.[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it was held: [The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected

against incitements to acts of violence and the overthrow by force of orderly government . . . . Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the OBrien 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 dagdagbawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils.

Thus, under the Administrative Code of 1987,[17] the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this naturalenough tendency of some voters. Some voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.[18] To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March

1, 2001 is a decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was rendered by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19] WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional. SO ORDERED.

G.R. No. L-1800

January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority Parties, petitioner, vs. VALERIANO E. FUGOSO, Mayor of City of Manila, respondent. Ramon Diokno for petitioner. City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent. FERIA, J.: This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947, for the purpose of petitioning the government for redress to grievances on the groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947, without prejudice to writing later an extended and reasoned decision. The right of 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 a casettled 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, not 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 authorizing their legislative bodies, called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of Manila, which according to section 2439 of the Administrative Code is the legislative body of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks, cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of prosperity and the promotion of morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants." Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844 and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace, and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation engaged in any lawful assembly." And section 1119 provides the following: "SEC. 1119 Free for use of public The streets and public places of the city shall be kept free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for other purposes as provided by ordinance or regulation: Provided, that the holding of athletic games, sports, or exercise during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the streets or public places or portions thereof, where such athletic games, sports, or exercises may be held: And provided, further, That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor who shall, on every such ocassion, determine or specify the streets or public places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the

holding of such parade or procession." As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of public meeting or assembly at any street or public places, the provisions of saif section 1119 regarding the holding of any parade or procession in any street or public paces may be applied by analogy to meeting and assembly in any street or public places. Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and the other is that the applicant has the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public places to be used for the purpose, with the view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that is construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held. Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that "no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the select men of the town or from licensing committee," was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade or procession to

procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration, the time, place, and manner of the parade and procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing and are not invested with arbitrary discretion to issue or refuse license, ... ." We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings, parades or processions, because such a construction would make the ordinance invalid and void or violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the use of streets, parks, and the other public places, and the word "regulate," as used in section 2444 of the Revised Administrative Code, means and includes the power to control, to govern, and to restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are executive and one of them is "to comply with and enforce and give the necessary orders for the faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised Administrative Code), the ligislative police power of the Municipal Board to enact ordinances regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets and other public places, can not be delgated to the Mayor or any other officer by conferring upon him unregulated discretion or without laying down rules to guide and control his action by which its impartial execution can be secured or partiality and oppression prevented. In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public streets, the council has no power to ordain that no processions shall

be allowed upon the streets until a permit shall be obtained from the superintendent of police, leaving the issuance of such permits to his discretion, since the powers conferred on the council cannot be delegated by them. The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104, held the following: "The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also, in substance, the same, for the ordinance in that case upon its face committed to the unrestrained will of a single public officer the power to determine the rights of parties under it, when there was nothing in the ordinance to guide or cintrol his action, and it was held void because "it lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented." and that "when we remember that action or nonaction may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void." ... In the exercise of police power, the council may, in its discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress them, directly or indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion with which the council is vested is a legal discretion, to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any city officer and arbitrary authority, making him in its exercise a petty tyrant." In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons, or associations or organizations shall march, parade, ride or drive, in ou upon or through the public streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having obtained the consent of the mayor or common council of said city;" was held by the Supreme Court of

Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held: ". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves, as secured by the principles of law, which cannot be less careful of private rights under the constitution than under the common law." "It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute discretion to suppress lawful action altogther can be granted at all. . . . ." "It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. ... When people assemble in riotous mobs, and move for purposes opposed to private or public security, they become unlawful, and their members and abettors become punishable. . . ." "It is only when political, religious, social, or other demonstrations create public disturbances, or operate as a nuisance, or create or manifestly threaten some tangible public or private mischief, that the law interferes." "This by-law is unreasonable, because it suppresses what is in

general perfectly lawful, and because it leaves the power of permitting or restraining processions, and thier courses, to an unregulated official discretion, when the whole matter, if regualted at all, must be permanent, legal provisions, operating generally and impartially." In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance which made it unlawful for any person, society or club, or association of any kind, to parade any of the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments, without the permission of the city council first had and obtained. The appellants were members of the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive; they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great latitude in public parades and emonstrations whether religious or political ... If this ordinance is held valid, then may the city council shut off the parades of those whose nations do not suit their views and tastes in politics or religion, and permit like parades of those whose nations do. When men in authority are permitted in their discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation. The law abhors partiality and discrimination. ... (19 L.R.A., p. 861) In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it shall be unlawful for any person or persons or association to use the street of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining a permit from the Chief of Police of the City of Walsenburg

so to do," held the following: "[1] The power of municipalities, under our state law, to regulate the use of public streets is conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of the United States to use the streets ... may be regulated in the interest of all; it is not absolute, but relative, and must be excercised in subordination to the general, be abridged or denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423. [2, 3] An excellent statement of the power of a municipality to impose regulations in the use of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted excercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional excercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct., 900, 904; 84

Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352." [4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official discretion of the chief of police of the municipal corporation to say who shall, who shall not, be accorded the privilege of parading on its public streets. No standard of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief of police may for any reason which he may entertain arbitrarily deny this privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said: "In the instant case the uncontrolled official suppression of the privilege of using the public streets in a lawful manner clearly is apparent from the face of the ordinance before us, and we therefore hold it null and void." The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of the conclusion said: ". . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right." Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes, cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple reason that said general power is predicated upon the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is required to enforce under the same section 2434. Moreover "one of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority," except certain powers of local government, specially of police regulation which are conferred upon the legislative body of a municipal corporation. Taking this into consideration, and that the police power to regulate the use of streets and other public places has been delegated or rather conferred by the Legislature upon the Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same power, specially if we take into account that its exercise may be in conflict with the exercise of the same power by the Municipal Board. Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred, upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from

ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other public places for processions, parades, or meetings, would be null and void, for the same reasons stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra, wherein the question involved was also the validity of a similar statute of New Hamsphire. Because the same constitutional limitations applicable to ordinances apply to statutes, and the same objections to a municipal ordinance which grants unrestrained discretion upon a city officer are applicable to a law or statute that confers unlimited power to any officer either of the municipal or state governments. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any city officer an arbitrary authority making in its exercise a petty tyrant." It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of said provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered. The popular meeting or assemblage intended to be held therein by the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite rebelious conspiracies

and disturb and obstruct the lawful authorities in their duty." The reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government, and in the duly constituted authorities, which might threaten breaches of the peace and a disruption of public order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the refusal of the permit can not be given any consideration. As stated in the portion of the decision in Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly 'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr. Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107: "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . . . "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . . "Moreover, even imminent danger cannot justify resort to prohibition

of these functions essential effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S. Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.) In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is ordered to issue the corresponding permit, as requested. So ordered. Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur. Separate Opinions PARAS, J., concurring: The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4, amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble

and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor." The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the House of Representatives; he was the chief campaigner of the said party in the last elections. As the petition comes from a responsible party, in contrast to Evangelista's Communist Party which was considered subversive, I believe that the fear which caused the Mayor to deny it was not well founded and his action was accordingly far from being a sound exercise of his discretion. BRIONES, M., conforme: En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias, director general de campaa de las minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas minorias en la Camara de Representantes, solicito del Alcalde de Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00 a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para usar la plataforma ya levantada en dicha Plaza. El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de que no se pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera responsable del mantenimiento de la paz y orden durante la celebracion del mitin." Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano

E. Fugoso revoco el permiso concedido, expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep. Primicias. "Sirvase dar por informado dice el Alcalde Fugoso en su carta que despues de haber leido los periodicos metropolitanos da esta maana en que aparece que vuestro mitin va a ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la presente se revoca dicho permiso. "Se cree aade el Alcalde que la paz y el orden en Manila sufriran dao en dicho 'rally' considerando que las pasiones todavia no se han calmado y la tension sigue alta como resultado de la ultima contienda politica. "Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las universidades locales participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines del mitin tal como han sido anunciados en los periodicos mencionados. "Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para este proceder toda vez que los resultados todavia no han sido oficialmente anunciados. "Por tanto termina el Alcalde su orden revocatoria la accion de esta oficina se toma en interes del orden publico y para prevenir la perturbacion de la paz en Manila." De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador General para que investigue la fase criminal del caso y formule la accion que justifiquen las circunstancias. Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los abogados de ambas partes ante esta

Corte en sus informes orales.1 El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la libertad de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al posible aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena de prision correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin fundamento legal, prohibiere o interrumpiere una reunion pacifica, o disolviere la misma." La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como guardian legal de las plazas, calles y demas lugares publicos. Se alega que como Alcalde de la Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o reunion, de conformidad con las exigencias del interes general tal como el las interpreta. Especificamente se citan dos disposiciones, a saber: el articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo aludido del Codigo Administrativo Revisado se lee como sigue: xxx xxx xxx

"(m) To grant and refuse municipal license or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinance are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other good reason of general interest." La ordenanza municipal indicada reza lo siguiente: La ordenanza municipal indicada reza lo siguiente: "SEC. 1119. Free for use of public. The streets and public places of the city shall be kept free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall

only be used or occupied for other purposes as provided by the ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the streets or public places, or portions thereof, where such athletic games, sports, or exercises may be held: And provided, further, That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor, who shall, on every occasion, determine or specify the streets or public places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession." Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la peticion del recurrente ni en ningun documenmento o manifestacion verbal atribuida al mismo, sino solamente en las columnas informativas de la prensa metropolitana. El recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad de telegramas y comunicaciones que como jefe de campaa de las oposiciones habia recibido de varias partes del archipielago denunciando tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con relacion a los hechos consumados urgir la pronta persecucion y castigo inmediato de los culpables y malhechores. De esto resulta evidente que el objeto del mitin era completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En realidad, teniendo en cuenta las serias responsabilidades del recurrente como jefe de campaa electoral de las minorias aliadas y como "Floor Leader" en el Congreso de dichas minorias, parecia que esta consideracion debia

pesar decisivamente en favor de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos conscientes, responsables y amantes de la ley y del orden.2 Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino solo la procesion o parada por las calles. Esto demuestra, se sostiene, que cuando se trata de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el Alcalde no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo. Creo no debe haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin en una plaza publica en un dia y una hora determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar a otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los ingredientes que entran en la motivacion de la facultad reguladora del Estado o del municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo, es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y conveniencia publica son por lo regular la base, el leit-motif de toda ley u ordenanza encaminada a reglamentar el uso de parques, plazas y calles. Desde luego que la regla no excluye la consideracion a veces de la paz y del buen orden, pero mas adelante veremos que este ultimo, para que sea atendible, requiere que exista una situacion de peligro verdadero, positivo, real, claro, inminente y substancial. La simple conjetura, la mera aprension, el temor mas o menos exagerado de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es motivo bastante para denegar el permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los parques, plazas y calles. La cuestion, por tanto, que tenemos que resolver en el presente

recurso es bien sencilla. Tenia razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre todo, bajo el precepto categorico, terminante, expresado en el inciso 8, seccion 1, del Articulo III de la Constitucion? No constituye la denegacion del permiso una seria conculcacion de ciertos privilegios fundamentales garantizados por la Constitucion al ciudadano y al pueblo? Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "all-pervading power of the state to regulate," temiendo que el mitin solicitado iba a poner en peligro la paz y el orden publico en Manila. No se fundo la denegacion en razones de "comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o aprension la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto reida y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. La cuestion en orden es la siguiente: se puede anular o siquiera poner en suspenso el derecho fundamentalisimo de reunion o asamblea pacifica, garantizado por la Constitucion, por razon de esta clase de conjetura, temor o aprension? Es obvio que la contestacion tiene que ser decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales privilegios y garantias hubiera de depender de las suspicacias, temores, aprensiones, o hasta humor del gobernante, uno podria facilmente imaginar los resultados desastrosos de semejante proposicion; un partido mayoritario dirigido por caudillos y liders sin escrupulos y sin conciencia podria facilmente anular todas las libertades, atropellar todos los derechos incluso los mas sagrados, ahogar todo movimiento legitimo de protesta o peticion, estrangular, en una palabra, a las minorias, las cuales como sabe todo estudiante de ciencia politica en el juego y equilibrio de fuerzas que integran el sistema democratico son tan indispensables como las mayorias. Que es lo que todavia podria detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de

sus adversarios si se le dejara abiertas las puertas para que, invocando probables peligros o amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o poner en suspenso los privilegios y garantias constitucionales? No seria esto retornar a los dias de aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto pronunciamiento: "I am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el llamado poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho, privilegio o garantia constitucional. Sin embargo, tal seria el resultado si en nombre de un concepto tan vago y tan elastico como es el "interes general" se permitiera in terdecir la libertad de la palabra, de la cual los derechos de reunion y de peticion son nada mas que complemento logico y necesario. Una mujer famosa de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y colocar su hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion: "Libertad, cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso legitimando la accion del recurrido y consiguientemente autorizando la supresion de los mitines so pretexto de que la paz y el orden publico corren peligro con ellos, un desengaado de la democracia en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica exclamacion de la siguiente manera: "Interes general, paz, orden publico, cuantos atentados se cometen en vuestro nombre contra la libertad!" El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas, particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y calles para el intercambio de impresiones y puntos de vista sobre cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que se puede regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague vs. Committee for Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a ser clasico en la jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa abreviatura CIO, planteo una queja ante los tribunales de New Jersey contra las

autoridades de Jersey City, (a) atacando, por fundamentos constitucionales, la validez de una ordenanza municipal que regulaba y restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y medios en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades. Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la "National Labor Relations Act." Las autoridades de la ciudad, comenzando por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de New Jersey, rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa alegacion de que los miembros de la organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la licencia se fundaba en una ordenanza municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea pacifica. Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole celebrar los mitines solicitados. Elevado el asunto en casacion e la Corte Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre otros pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles, parques y plazas, desde tiempo inmemorial los mismos siempre se han considerado como un fideicomiso para uso del publico, y desde tiempos remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio de impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que el uso de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una parte importante y esencial de los privilegios, inmunidades, derechos y libertades de los ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las calles, plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe ser ejercitado con sujecion al "comfort" y conveniencia generales y en

consonancia con la paz y el buen orden; pero no puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el tribunal inferior estuvo acertado al declarar invalida la ordenanza en su faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la norma y patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el permiso en virtud de su simple opinion de que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y desordenadas; (e) que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la prohibicion de hablar producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de mantener el orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el orden en relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina: "5. Regulation of parks and streets. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of the citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not in the guise of regulation be abridged or denied. We think the court below was right in holding the ordinance . . . void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly

'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right." (Hague vs. Committee for Industrial Organization, 307 U. S. 496, 515-516.) Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde recurrido. Pero la similitud es solo en el hecho de que el entonces Alcalde D. Tomas Earnshaw tambien revoco el permiso previamente concedido al partido comunista que representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias en ambos casos son enteramente diferentes. El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se habian encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido comunista se preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas gobierno que ellos calificaban de imperialista y capitalistico sino que de hecho en mitines celebrados con anterioridad los comunistas habian pronunciado discursos clara y positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La accion, por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en la existencia de un peligro inminente, claro, real, sustantivo ingrediente unico y excepcionalisimo que permite una salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales de que se trata. Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho la mas pequea insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para todos los cargos nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en 21 provincias de las 50 que componen el mapa electoral, y en 5

ciudades con carta especial de las 8 que existen, incluyendose entre dichas 5 la de Manila, capital del archipielago. Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como el instrumento normal y democratico para cambiar los gobiernos y las administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las ultimas elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los medios de que disponia frente a la natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se habia escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante engaos, abusos y anomalias de diferentes clases, no busco la violencia ni recurrio a la accion directa para hallar remedio a sus agravios o vengarlos, sino que trato de cobijarse bajo la Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos el recurrente en este caso, cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de las minorias en el Congreso y jefe de campaa de las mismas en las pasadas elecciones. Que mejor prueba de legalidad y de propositos pacificos y ordenados? Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el camino angosto de la represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado, la amplia avenida de la libertad, una politica que consista en abrir espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la indignacion del pueblo, previniendo de esta manera que los vapores mal reprimidos hagan estallar la caldera, o que la desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil. Creo que entre ambas politicas la eleccion no es dudosa.

Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en diferentes sitios de Manila; que en dichos mitines se habian pronunciado discursos altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del Senado y el mismo recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del bienestar e interes generales; que, dado este antecedente, habia motivo razonable para creer que semejantes discursos se pronunciarian de nuevo, minandose de tal manera la fe y la confianza del pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias perturbaciones, teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo de parte de los grupos perdidosos y derrotados. Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un regimen de previa censura, el cual no solo es extrao sino que es enteramente repulsivo e incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion, es de represion y castigo sobre la base de los hechos consumados. En otras palabras, es un sistema que permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta al que abusase de ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia, la difamacion oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto de Hague vs. Committee for Industrial Organization, la supresion incontrolada del privilegio constitucional no puede utilizarse como sustituto de la operacion de dichas leyes. Se temia dice el recurrido en su contestacion que la probable virulencia de los discursos y la fuerte tension de los animos pudiesen alterar seriamente la paz y el orden publico. Pero cabe preguntar de cuando aca la libertad, la democracia no ha sido un peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la democracia no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus libros inmortales una hermosa imagen que es perfectamente aplicable a la democracia. Puede

decirse que esta es como la mar: serena, inmovil, sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero cuando sopla el huracan lease, Vientos de la Libertad sus aguas se alborotan, sus olas se encrespan, y entonces resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se desencadenan liberrimamente. Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con todos sus inconvenientes, con todos sus peligros. Los que temen la libertad no merecen vivirla. La democracia no es para pusilanimes. Menos cuando de la pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo. Porque entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe como terminaron. El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y previno el temor a ellos con las luminosas observaciones que se transcriben a continuacion, expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440 (1907), a saber: "Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden debe averiguarse quienes son los culpables y castigarseles por este

motivo, pero debe procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso." En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la oposicion antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa. Como se dice mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra decision en el presente asunto tampoco ocurrio nada. Que demuestra esto? Que los temores eran exagerados, por no llamarlos fantasticos; que el pueblo de Manila, con su cordura, tolerancia y amplitud de criterio, probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes. La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes el de reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el corazon y alma de nuestro pueblo para ser tratados negligentemente, con un simple encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas contra la opresion y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio, generando luego el famoso Grito de Balintawak. Fueron esas libertades las que despues informaron los documentos politicos de Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de colaboracion filipino americana, fueron esas mismas libertades la esencia de nuestras instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a continuacion: "Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la palabra, tal y como la han defendido

siempre todos los paises democraticos, era desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Aos' (paginas 62 y siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo: "El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la prensa libre en Filipinas, y por crear diputados filipinos. "Los patriotas filipinos que estaban en Espaa, por medio de las columnas de La Solidaridad y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la 'libertad de prensa, de cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos, garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y de peticion. "Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el derecho a la libertad. "Despues sigue el periodo de la mutua colaboracion americanofilipina. La Constitucion de los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto, no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de 1900, que sientan el siguiente inviolable principio: "Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para remedio de sus agravios." "El Bill de Filipinas, o sea la Ley del Congreso de 1. de Julio de 1902, y la Ley Jones, o sea la Ley del Congreso de 29 de Agosto de

1916, que por su naturaleza son leyes organicas de las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son extraas para los estudiantes de derecho constitucional, porque estan calcadas de la Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio antes de otorgar su aprobacion a la Constitucion. "Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe olvidarse por un solo instante, de que las mencionadas garantias constituyen parte integrante de la Ley Organica La Constitucion de las Islas Filipinas. "Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de aplicacion a los grandes casos constitucionales de Inglaterra y America. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y cuales son estos principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre aquellos estan los siguientes: "Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion plena de los asuntos publicos. Completa libertad de comentar los actos de los funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra. La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que se dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos. Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es menos que el Estado, debe esperarse que sobrelleve la critica en beneficio de la comunidad. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios, que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial que cualesquiera o sobre todas las dependencias del Gobierno la opinion publica debe ser el constante manantial de la libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason vs. Walter, L. R. 4 Q. B.,

73, Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.) Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa que la antigua colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario, tiene que ser muchisimo mas activa y militante. Obrar de otra manera seria como borrar de una plumada nuestras mas preciosas conquistas en las jornadas mas brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del Pilar, Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos sacrificios ha costado a nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos llegado a estas alturas, en la trabajosa ascension hacia la cumbre de nuestros destinos, para permitir que ocurra esa tragedia. No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del pueblo el propio y correspondiente remedio. Pudieran ser reales o pudieran ser imaginarios, en todo o en parte. Pero de una cosa estamos absolutamente seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la base de un sufragio efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte de la democracia. Suprimid eso, y la democracia resulta una farsa. Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido, sino que debe ser alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no hay mejor higiene que la critica libre, la censura desembarazada. Solamente se pueden corregir los abusos permitiendo que se denuncien publicamente sin trabas sin miedo.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la violencia. HILADO, J., dissenting:

Because the constitutional right of assembly and petition for redress of grievances has been here invoked on behalf of petitioner, it has been considered doubly necessary to expound at length the grounds of my dissent. We are all ardent advocates of this right, whenever and wherever properly exercisable. But, in considering the legal problem here presented serenely and dispassionately, as I had to, I arrived at a different conclusion from that of the majority. (a) Right not absolute but subject to regulation. It should be recognized that this right is not absolute and is subject to reasonable regulations. (Philippine Constitutional Law by Malcolm and Laurel, 3d ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30 N.E. 79.) Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one. Assemblies are subject to reasonable regulations." In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on page 407 of the above cited work on Philippine Constitutional Law by Malcolm and Laurel, the Supreme Judicial Court of Massachusetts considered and decided a case involving a regulation by the Board of Park Commissioners forbidding all persons "to make orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon prior consent of the board. The defendant requested permission to deliver an oration in the park, which was refused by the board, and thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes in length. In a criminal trial of said defendant for violating the rules promulgated by the Board of Park Commissioners, said rules were held valid and reasonable, and not inconsistent with article 19 of the Bill of Rights (of the Massachusetts Constitution), providing that "the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that case the defendant admitted that the people would not have the right to assemble for the purposes specified in the public streets, and might not have such right in the public gardens or on the common, because such an

assembly would or might be inconsistent with the public use for which these places are held. And the Supreme Court of Massachusetts said: ". . . . The same reasons apply to any particular park. The parks of Boston are designed for the use of the public generally; and whether the use of any park or a part of any park can be temporarily set aside for the use of any portion of the public, is for the park commissioners to decide, in the exercise of a wise discretion." In the above-quoted case it appears from the statement of facts preceding the opinion that within the limits of Franklin Park, there involved, were large areas not devoted to any special purpose and not having any shrubbery that would be injured by the gathering thereon of a large concourse of people; that defendant's speech contained nothing inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close of the oration the audience quietly dispersed; and that no injury of any kind was done to the park. Still, it was held that the regulation under which the Board of Park Commissioners denied the permission to deliver said oration requested by the defendant was valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the people the "right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse municipal . . . permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics ours); and "to comply with and enforce and give the necessary orders for the faithful enforcement and execution of the laws and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general powers and duties of the Municipal Board, whose ordinances the said Mayor was at once bound and empowered to comply with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places." [Ibid., section 2444 (u); italics ours.]

Another legal doctrine which should not be lost sight of is that, without abridging the right of assembly and petition, the government may regulate the use of places public places wholly within its control, and that the state or municipality may require a permit for public gatherings in public parks and that, while people have the right to assemble peaceably on the highways and to parade on streets, nevertheless the state may regulate the use of the streets by requiring a permit (16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has conferred certain powers pertinent to the subject under consideration upon the City Mayor, and upon the Municipal Board. Among these is the duty and power of said Mayor "to grant and refuse municipal . . . permits of all classes . . . for any good reason of general interest" (italics ours), and the power and duty of the Municipal Board "to regulate the use . . . of street, . . . parks, . . . and other public places . . ." (italics ours), already above discussed. Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more frequent public use, is a public place devoted to traffic between several streets which empty into it within the district of Quiapo. It is a fact of common knowledge and within the judicial notice of this Court that said plaza is one of the public places constantly used by an usually great number of people during all hours of the day and up to late hours of the night, both for vehicular and for pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those hours converges and from which it again proceeds in all directions; and the holding during those hours of a meeting, assembly or rally of the size and nature of that contemplated by petitioner and those belonging to the Coalesced Minority Parties when the permit in question was requested from the City Mayor, must have been expected to greatly inconvenience and interfere with the right of the public in general to devote said plaza to the public uses for which it has been destined since time immemorial. The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition is not absolute but subject to regulation as regards the time, place, and manner of its exercise. As to time, it seems evident, for example, that the State, directly or through the local government of the city or municipality, by way of regulation of the right of free speech, may validly prohibit the delivery

of speeches on public streets near private residences between midnight and dawn. As to place, we have the example of the instant case involving Plaza Miranda or any other public place. And as to manner, it is a familiar rule that the freedom of speech does not authorize the speaker to commit slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid regulations of the right. Among other cases which may be cited on the same point, we have that of Hague vs. Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the majority opinion and from which the following passage is copied from the quotation therefrom in the said opinion: ". . . The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." (Italics ours.) I construe this declaration of principles by the United States Supreme Court to imply that where the regulatory action is predicated upon the "general comfort and convenience," and is "in consonance with peace and good order," as in the instant case, such action is regulation and not "guise of regulation," and therefore does not abridge or deny the right. (b) No constitutional right to use public places under government control, for exercise of right of assembly and petition, etc. Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the constitutional right of assembly and petition, or free speech, claimed by petitioner, but rather of the use of a public place under the exclusive control of the city government for the exercise of that right. This, I submit, is a distinction which must be clearly maintained throughout this discussion. No political party or section of our people has any constitutional right to freely and without government control make use of such a public place as Plaza Miranda, particularly if such use is a deviation from those for which said public places have been by their nature and purpose

immemorially dedicated. In other words, the City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or the delivery of speeches thereat on the date desired at any place over which said mayor had no control his action was exclusively confined to the regulation of the use of Plaza Miranda for such a purpose and at such a time. Chief Justice Hughes, speaking for a unanimous court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said: If a municipality has authority to control the uses of its public streets for parades or processions, as it undoubtedly has, it can not be denied authority to give consideration, without unfair discrimination, to time, place, and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constituional right. (emphasis ours). That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal court in the State of New Hampshire for violation of a state statute prohibiting a "parade or procession" upon a public street without a special license. The appellants invoked the constitutional right of free speech and press, as well as that of the assembly. The judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and that of the latter was affirmed by the United States Supreme Court. Among other things, the United States Supreme Court said that the appellants were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, of for maintaining or expressing religious beliefs. Their right to do any of these things apart from engaging in a "parade or procession," upon a public street was not involved in the case. The question of the validity of a statute addressed to any other sort of conduct than that complained of was declared not to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant case the constitutional rights of free speech, assmebly, and petition are not before the court but merely the privilege of petitioner and the Coalesced Minorities to exercise any or all of said rights by using Plaza Miranda, a public place under the complete control of the city government. In the same

case of Cox vs. New Hampshire, supra, Chief Justice Hughes, in his opinion, used the following eloquent language:. "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it can not be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protectio. One would not be justified in ignoring the familiar red lightbecause he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinion...." (85 Law. ed., 1052-1053.). In other words, when the use of public streets or places is involved, public convenience, public safety and public order take precedence over even particular civil rights. For if the citizen asserting the civil right were to override the right of the general public to the use of such streets or places, just because it is guaranteed by the constitution, it would be hard to conceive how upon the same principle that citizen be prevented from using the private property of his neighbor for the exercise of the asserted right. The constitution, in guaranteeing the right of peaceful assembly and petition, the right of free speech, etc., does not guarantee their exercise upon public places, any more than upon private premises, without government regulation in both cases, of the owners' consent in the second.. In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in affirming the decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver Wendell Holmes, then of the latter tribunal, quoted from said decision as follows:.

"...As representatives of the public it (legislature) may and does excercise control over the use which the public may make of such places (public parks and streets), and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of the member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....". (c) Authorities cited.--. I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are, I think, inapplicable to the oune under consideration, and those which may have some application, I believe reinforce this dissent. None of them was for mandamus to compel the granting of a permit for holding a meeting, assembly or the like, upon a public place within the control of the general or local government.. The fact that a law or municipal ordinance under which a person had been prosecuted for delivering a speech without the required permit, for example, was declared unconstitutional or otherwise void for delegating an unfettered or arbitrary discretion upon the lisencing authority, thus completely failing to confer the discretion, does not mean that such person has the right by mandamus to force said authority to grant him the permit. If, in such case, the law or ordinance, conferring the discretion, is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit would involve selfcontradictory proposition, for the very idea of a permit is something which may be granted or witheld. He who has the power to grant permission for the doing of an act necessarily has the correlative power to deny the permission. A "permit" which under no conditions or circumstances and at no time can be refused needs a different name..

Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of New Hampshire which was construed by the Supreme Court of the same State as not conferring upon the licensing board unfettered discretion to refuse the license, and was held valid both by said Supreme Court and the Supreme Court of the United States.. In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to grant or to refuse the permit is controlled and limited by the all important requirement of the same section that whatever his determination, it should be "for any good reason of general interest.". In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the power of City councils under the state law to regulate the use of the public streets could not be delegated by them, and therefore could not be delegated to the superintendent of police. But in our case, the power of the City Mayor under the Revised Administrative Code has not been delegated by the Municipal Board of Manila but has been directly conferred by the State through its legislature. . In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance committing to the unrestrained will of public officer the power to determine the rights of parties under the ordinance without anything (to guide or control his action.) In our case, as already stated, the city mayor received his power from the State through the Legislature which enacted the Revised Administrative Code, and moreover, his action therein provided to be guided and controlled by the already mentioned requirement that whether he grants or refuses a municipal premit of any class it shall be for some "good reason of general interest," and not as his unfettered will may dictate.. The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void by the Supreme Court of Michigan, the ordinance prohibiting certain uses of the public streets of the City of Grand Rapids "without having first obtained the consent of the Mayor or Common Council of said City." The ordinance did not

prescribe any guide, control or limitation for, of, and to, the exercise of the power thus conferred upon the mayor or common council. The following passage from the quotation from the decision of the Supreme Court of Michigan made in the majority opinion would seem to reinforce the stand taken in this dissent.. "...We must therefore construe this Charter and the powers it assumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves, as secured by the principles of law, which cannot be less careful of private rights under a constitution than under the common law.. "It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose and no grant of absolute discretion to suppress lawful action altogether can be granted at all...." (emphasis ours.) The instant case is concerned with an "indignation rally" to be held at one of the busiest and most frequented public places in this big cosmopolitan city, with a present population estimated to be 150 per cent larger than its prewar population, and the public officer who was being called upon to act on the petition for permit was the chief executive of the city who was by reason of his office the officer most directly responsible for the keeping and maintenance of peace and public order for the common good. And as stated elsewhere in this dissent, his power in the premises was not without control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of the right claimed but was merely a postponement of the use of a public place for the excercise of that right when popular passions should have calmed down and public excitement cooled off sufficiently to better insure the avoidance of public peace and order being undermined.. Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city

ordinance. The court there held that when men in authority are permitted in their discretion to excercise "power so arbitrary , liberty is subverted, and the spirit of our free institution violated." (Emphasis ours.) This is not our case, as the power of the Manila Mayor now under consideration is not at all arbitrary. It was further held in that case that where the granting of the permit is left to the unregulated discretion of a small body of city alderman, th ordinance can not be other than partial and discriminating in its practical operation. The case at bar is radically different for, as already shown, the discretion of the City Mayor here is not unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory condition precedent to the exercise of the power one way or the other. And just as certainly the reasons alleged by the respondent Mayor for his action stated in his letters dated November 15 and 17, 1947, addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and well taken, consideration being had of his grave responsibilities as the immediate keeper of peace and public order in the city. Elsewhere in this dissent we quote from said documents textually.. On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs. New Hampshire, supra, which says:. "As regualtion of the use of the streets for parades or processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.". The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of assembly, such control is legally valid. This is precisely our case, since the respondent Mayor neither denied not unwarrantedly abridged the right asserted by petitioner and his companions. If the postponement of the granting of the permit should be taken as a denial of the right, then we would practically be denying the discretion of the proper official for it would be tantamount to compelling him to grant the permit outright, which could necessarily mean that he can never refuse the permit, for one who cannot even

postpone the granting of such permit much less can altogether refuse it. . Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being clearly distinguishable from the instant case as later demonstrated, contains the passage quoted on page 7 of this dissent, which decidedly supports it. The distinction between that case and this is that there "the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the instant case section 2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act for it likewise provides permission, and in both cases is expressly aimed at promoting the "general interest." . Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of this dissent as appears from No. 2 of the syllabus therein:. "A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of time, place, and manner, of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse licenses, but are required to exercise their discretion free from the improper or inappropriate consideration and from unfair discrimination." (Emphasis ours.). In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of general interest," the Revised Administrative Code plainly has in view only the common good and excludes all "improper or inappropriate considerations" and "unfair discrimination" in the exercise of the granted discretion. Lastly, as between Hague vs, Committee fro Industrial Organization,

supra, and Cox vs. State of New Hampshire supra, the choice is obvious with regard to their authoritative force, when it is considered that in the former out of the nine Justices of the United States Supreme Court two did not take part and of the seven who dis only two, Justices Roberts and Black, subscribed the opinion from which the majority here quote, while in the latter (Cox vs. State of New Hampshire) the decision was unanimous.. (d) Mandamus unavailable.--- . Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses the rule obtaining in the United States that the immunity from judicial control appertaining to the Office of the Governor of the State, or to the Presidency of the United States, does not attach to the mayoralty of a city. But on page 878, section 2728, ha has the following to say on the unavailability of mandamus to compel the granting of licenses and permits by municipal officers:. "SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license or permit is discretionary with the officer or municipal board, it is clear that it cannot be compelled by mandamus. The cases rarely, if ever, depart from this well established rule, and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the remedy. As already stated, the fundamental condition is that the petition must show a clear legal right to the writ and a plain neglect of duty on the part of the public officer to perform the act sought to be enforced. For example, one who seeks to compel a city to issue to him a permit for the erection of a buiding must show compliance with all valid requirements of the building ordinances and regulations.. "The granting of licenses or permits by municipal or other public authorities, as mentioned, is usually regarded as a discretionary duty, and hence, ordinarily mandamus will not lie to compel them to grant a license or issue a permit to one claiming to be entitled thereto, especially where it is not alleged and shown that the exercise of such discretion was arbitrary. All the court can do is to see that the licensing authorities have proceeded according to law. Their decision will not be reviewed on its merits. Where, however, refusal to grant a license or to issue a permit, as said above, is arbitrary or capricious

mandamus will lie to compel the appropriate official action...." . To my mind, the following reasons, alleged by the respondent mayor, negative all element of arbitrariness in his official action:. "...please be advised that upon reading the metropolitan newspapers this morning wherein it appears that your meeting will be an indignation rally at which all the supposed election frauds allegedly perpetrated in many parts of the Philippines for the purpose of overriding the popular will, will be bared before the people, this office hereby revokes the said permit.. "It is believed that public peace and order in Manila will be undermined at the proposed rally considering the passions have not as yet subsided and tension remains high as an aftermath of the last political contest.. "According to the same newspapers, delegates from the provinces and students from local universities will particpate in the said rally which, in my opinion, would only precipitate trouble since no guarantee can be given that only the opposition elements will be there. The moment the crowd becomes mixed with people of different political colors which is most likely to happen, public order is exposed to danger once the people are incited, as they will be incited, considering the purposes for which the meeting will be held as reported in the newspapers above mentioned.. "...." (Mayor's letter dated November 15, 1947.). "I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing the alleged fraudulent manner in which the last elections have been conducted and the alleged nationwide flagrant violation of the Election Law, and of seeking redress therefor. It is regretted that for the same reasons stated in my letter of November 15, 1947, your request can not be granted for the present. This Office has adopted the policy of not permitting meetings of this nature which are likely to incite the people and disrupt the peace until the results of the elections shall have been officially announced. After this announcement, requests similar to yours will be granted..

"...." (Mayor's letter dated November 17, 1947.). "That according to Congressman Primicias, the meeting will be an indignation rally for the purpose of denouncing the alleged fraudulent manner the said elections were conducted and the nationwide falgrant violations of the Election Law;. "2. That it is a fact that the returns of the last elections are still being recounted in the City of Manila in the Commission on Elections, and pending the final announcement of the results thereof, passions, especially on the part of the losing groups, remain bitter and high;. "3. That allusions have been made in the metropolitan newspapers that in the case of defeat, there will be minority resignations in Congress, rebellion and even revolution in the country;. "4. That I am sure that the crowd that will attend said meeting will be a multitude of people of different and varied political sentiments;. "5. ....... . "6. That judging from the tenor of the request for permit and taking into consideration the circumstances under which said meeting will be held, it is safe to state that once the people are gathered thereat are incited, there will surely be trouble between the opposing elements, commotion will follow, and then peace and order in Manila will be disrupted; and. "7. That the denial of said request for permit has been made for no other reasons except to perform my duty as Mayor of Manila to maintain and preserve peace and order in this City.. 8. That I have assured Congressman Primicias that immediately after the election returns shall have been officially announced, the Nacionalista Party or any party will be granted permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1, Answer.). For these and other reasons which could be advanced in corroboration, I am of the considered opinion that the respondent Mayor had under the law the requisite discretion to grant or refuse the

permit requested, and therefore to revoke that which had previously been granted, and that the reasons for such revocation alleged in his letters dated November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last action. And be it distinctly observed that this last action was not an absolute denial of the permit, but a mere postponement of the time for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of the Revised Admninistrative Code.. TUASON, J., dissenting:. I join in Mr. Hilado's dissent and wish to add a few remarks.. As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble assemblage, is only an incidental issue in this case. No one will contest the proposition that the mayor or the Congress itself may stop the petitioner and his men from meeting peacebly and venting their grievances in a private place. The main issue rather is the extent of the right of any group of people to use a public street or a public plaza for a purpose other than that for which it is dedicated.. The constitutional guaranty of free speech does not prevent the government from regulating the use of places within its control. A law or ordinance may forbid the delivery of addresses on the public parks, or on the streets as a valid exrcise of police power. (12 C. J., 954) Rights of assembly and of petition are not absolute rights and are to be construed with regard to the general law. (16 C.J.S., 640) Indeed, "the privileges of a citizen of the United States to use the streets and parks for the communication of views on national questions...must be exercised in subordination to the general comfort and convenience." (Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed., 1433) And so long as the municpal authorities act within the legitimate scope of their police power their discretion is not subject to outside interference or judicial revsion or reversal (14 C. J., 931.). The mayor did not act capriciously or arbitrarily in withholding or postponing the permit applied for by the petitioner. His reasons were real, based on contemporary events of public knowledge, and his temporary refusal was reasonably calculated to avoid possible

disturbances as well as to adavance and protect the public in the proper use of the most congested streets and public plaza in an overcrowded city. There was reason to fear disturbances, not from the petitioner and his men but from elements who had no connection with the holding of the meeting but who, having gripes, might be easily excited to violence by inflammatory harangues when nerves were on edge. The fact that no untoward incident occurred does not prove the judiciousness of this Court's resolution. The court is not dealing with an isolated case; it is laying down a rule of transcendental importance and far-reaching consequences, in the administration of cities and towns. If nothing happened, it is well to remember that, according to newspapers, 500 policemen were detailed to prevent possible disorder at the gathering. It should also be borne in mind that vehicular traffic in the vicinity of Plaza Miranda had to be suspended and vehicles had to be rerouted, during and after the meeting. All of which entailed enormous expense by the city and discomforts to the general public.. No individual citizen or group of citizens certainly has a right to claim the use of a public plaza or public streets at such great expense and sacrifice on the part of the city and of the rest of the community. Yet, by virtue of this Court's resolution any person or group of persons invoking political, civil or religious freedom under the constitution is at liberty to stage a rally or parade or a religious procession, with the mayor powerless to do anything beyond seeing to it that no two meetings or parades were held in the same place or close to each other. No precedent in the United States, after whose institutions ours are modelled, approaches this Court's resolution in its disregard of the government's authority to control public streets and to maintain peace and order. In an infant republic where the state of peace and order is still far from normal, where the forces of law are far from adequate to cope with lawlessness; in a city where conditions of traffic are among the worst if not the worst on earth, this Court sets down a principle that outstrips its prototype in "liberality", forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief Justice Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lsot in the excesses of unrestrained abuses. The authority of the municipality to impose regulations in

order to assure the safety and convenience of the people in the use public highways has never been regarded as inconsistent with civil liberties, but rather as one of the means of safeguarding the good order upon which they ultimately depend." To be logical, peddlers and merchants should be given, as a matter of right, the freedom to use public streets and public squares to ply their trade, for the freedom of expression and of assemblage is no more sacred than the freedom to make a living. Yet no one has dared make such a claim.. The cases cited in the resolution are not applicable. It will be seen that each of these cases involved the legality of a law and municipal ordinance. And if in some of said cases a law or an ordinance was declared void, the grounds of invalidation were either discrimination or lack of authority of the Legislature or the municipal council under the state constitution or under the law to adopt the contested measure.. As applied to Manila, there are both a law and an ordiance regulating the use of public places and the holding of meetings and parades in such places. As long as this law and this ordinance are in force the mayor does not only have the power but it is his sworn duty to grant or refuse a permit according to what he believes is in consonance with peace and order or is proper to promote the general comfort and convenience of the inhabitants.. The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific of substantive power independent from the corresponding municipal ordinance which the Mayor, as Chief Executive of the City, is required to enforceunder the same section 2434." The Court advances the opinion that because section 2444 confers upon the municipal board "the police power to regulates the use of streets and othe public places," "It is to be presumed that the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m), the same power, specially if we take into account that its exercise may be in conflict with the exercise of the same power by the municipal board.". Section 2434 (m) is written in the plainest language for any casual reader to understand, and it is presumed that it means what it says. This provision certainly was not inserted in the city charter, which

must have been drawn with painstaking care, for nothing. And I am aware of no constitutional provision or constitutional maxim which prohibits the delegation by the Legislature of part of its police power affacting local matters, directly upon the mayor instead of through the municipal board. Nor is there incompatibilty between section 2434 (m) and section 2444 or the ordinance enacted under the latter. At any rate, section 2434 (m) is of special character while section 2444 is general, so that, if there is any conflict between section 2434 (m) and the ordinance passed under section 2444, the former is to prevail.. This Court has already set at rest the validity, meaning any scope of section 2434 (m) in a unanimous decision with all the nine members voting, when it sustained the mayor's refusal to grant a permit for a public meeting on a public plaza to be followed by a parade on public streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434 (m) in that decision was not an obiter dictum as the majority say. The sole question presented there, as we gather from the facts disclosed, was the legality of the mayor's action, and the court pointed to section 2434 (m) as the mayor's authority for his refusal. The fact that the mayor could have denied the petitioner's application under the general power to prohibit a meeting for unlawful purposes did not make the disposition of the case on the strength of section 2434 (m) obiter dictum. An adjudication on any point within the issues presented by the case cannot be considered a dictum; and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated. Accordingly, a point expressly decided does not lose its value as a precedent because the disposition of the case is or might have been on some other ground, or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did. (1 C. J. S. 314-315.). But the Court asserts that if the meaning of section 2434 (m) is what this Court said in Evangelista-Earnshaw case, then section is void. I do not think that that provision is void--at least not yet. Until it is invalidated in the proper case and in the proper manner, the mayor's

authority in respect of the issuance of permits is to be measured by section 2434 (m) and by the municipal ordinance in so far as the ordinance does not conflict with the law. The validity of that provision is not challenged and is nowhere in issue. It is highly improper, contrary to the elementary rules of practice and procedure for this Court to say or declare that the provision is void. Moreover, Article VIII, section 10, of the Constitution provides that "all cases involving the constitutionality of a treaty or a law shall be heard and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the court." Only seven voted in favor of the resolution... 1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal Auxiliar de Manila D. Julio Villamor, en representacion del recurrido.. 2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se celebro en la noche del 22 de Noviembre en virtud de nuestra resolucion concediendo el presente recurso de mandamus-- el mas grande que se ghaya celebrado jamas en Manila, segun la prensa, y al cual se calcula que assistieron unas 80,000 personas--fue completamente pacifico y ordenado, no registrandose el menor incidente desagradable. Segun los periodicos, el mitin fue un magnifico acto de ciudadania militante y responsable, vindicatoria de la fe de todos aquellos que jamas habian dudado de la sensatez y cultura del pueblo de Manila. . 3 Madame Roland.. 4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los que conocen Mejico aseguran que, merced a esta consigna, la era de las convulsiones y guerras civiles en aquella republica ha pasado definitivamente a la historia. . 5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el Gobierno de Roma; fue la de los censores. Hacian el censo del pueblo, y, ademas, como la fuerza de la republica consistia en la disciplina, la austeridad de las costumbres y la observacion constante de ciertos ritos, los censores corregian los abusos que la ley no habia previsto o que el magistrado ordinario no podia

castigar..... "El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el espiritu del pueblo, la fuerza del Senado o la autoridad de ciertos magistrados, estaba constituido de tal modo, que todo abuso de poder pudo ser siempre corregido. . "El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de examinarlo continuamente y de examinarse a si mismo; sus errores son de suerte que nunca se prolongan, y por el espiritu de atencion que despiertan en el pais, son a menudo utiles. . "En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es por sus propias leyes capaz de corregirse." ("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74, 76 y 77.) .

G.R. No. L-62270 May 21, 1984 CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE LEE, petitioners, vs. THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National Capital Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity as the President of the Gregorio Araneta University Foundation, GONZALO DEL ROSARIO, in his capacity as the Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B. MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc Committee of the Gregorio Araneta University Foundation, respondents. Honesto N. Salcedo for petitioners. The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.: The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the grievance alleged by petitioners, students of the Gregorio Araneta University Foundation, in this certiorari, prohibition and mandamus proceeding. The principal respondents are Anastacio D. Ramento, Director of the National Capital Region of the Ministry of Education, Culture and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding

petitioners guilty of illegal assembly and suspending them is sought in this petition. The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of respondent University. They sought and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the second floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were formed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages against private respondents 2 and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. Hence this petition. On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-parte motion for the immediate issuance of a temporary mandatory order filed by counsel for petitioners, dated

November 12, 1982, the Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person or persons acting in their place or stead from enforcing the order of the Ministry of' Education and Culture dated October 20, 1982 finding the petitioners guilty of the charges against them and suspending them for one (1) academic year with a stern warning that a commission of the same or another offense will be dealt with utmost severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3 Both public and private respondents submitted their comments. Private respondents prayed for the dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the temporary restraining order dated November 16, 1982." 4 Public respondent Ramento, on the other hand, through the Office of the Solicitor General, prayed for the dismissal of the petition based on the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the MECS did not commit any error, much less abused his discretion, when he affirmed the decision of respondent University finding petitioners guilty of violations of the provisions of the Manual of Regulations for Private Schools and the Revised Student's Code of Discipline .and ordering their suspension for one (1) academic school year. However, since said suspension has not been enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this proceeding is now moot and academic. 5 With the submission of such comments considered as the answers of public and private respondents, the case was ready for decision. This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them doing so and with the other two equally entitled to do so. Moreover, there is the added circumstance of more than a year having passed since October 20, 1982 when respondent Ramento issued the challenged decision suspending them for one year. Nonetheless, with its validity having been put in issue, for being violative of the constitutional rights of freedom of peaceable assembly

and free speech, there is need to pass squarely on the question raised. This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being unduly severe. It is true that petitioners held the rally at a place other than that specified in the permit and continued it longer than the time allowed. Undeniably too, they did disturb the classes and caused the work of the non-academic personnel to be left undone. Such undesirable consequence could have been avoided by their holding the assembly in the basketball court as indicated in the permit. Nonetheless, suspending them for one year is out of proportion to their misdeed. The petition must be granted and the decision of respondent Ramento nullified, a much lesser penalty being appropriate. 1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom of expression which is Identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and present danger of a substantive evil that the state has a right to prevent." 7 2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public park to the gates of the united States Embassy, hardly two blocks away, where in an open space of public property, a short program would be held. Necessarily then, the question of the use of a public park and of the streets leading to the United States Embassy was before this Court. We held that streets and parks have immemorially been held in trust for the use of the public and have been used for purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8 3. The situation here is different. The assembly was to be held not in a public place but in private premises, property of respondent University. There is in the Reyes opinion as part of the summary this

relevant excerpt: "The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required." 9 Petitioners did seek such consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a permit granted to them by the school administration, the Supreme Student Council where your petitioners are among the officers, held a General Assembly at the VMAS basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent University as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved then is whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to peaceable assembly and its cognate right of free speech. 4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 12 "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13 While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others.

... But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." 14 5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their continuing their demonstration in a place other than that specified in the permit for a longer period and their making use of megaphones therein, resulting in the disruption of classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly. 6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of views opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem (iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such demonstration, with an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth, They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."

7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly before the municipal council of San Carlos, Occidental Negros, started its session, some five hundred residents of the municipality assembled near the municipal building, and, upon the opening of the session, a substantial number of such persons barged into the council chamber, demanding that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed substitutes. The municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was fairly orderly and wellbehaved except in so far as their pressing into the council chamber during a session of that body could be called disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal government from freely exercising its duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest form of punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A careful reading of this decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held by the students under the leadership of petitioners. 8. It does not follow, however, that petitioners can be totally absolved

for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p. m. 20 Private respondents could thus, take disciplinary action. On those facts, however, an admonition, even a censure-certainly not a suspension-could be the appropriate penalty. Private respondents could and did take umbrage at the fact that in view of such infraction considering the places where and the time when the demonstration took place-there was a disruption of the classes and stoppage of work of the non-academic personnel. They would not be unjustified then if they did take a much more serious view of the matter. Even then a one-year period of suspension is much too severe. While the discretion of both respondent University and respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of proportionality between the offense connoted and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the holding of this Court that a one-week suspension would be punishment enough. 9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies. That is true, but hardly decisive. Here, a purely legal question is presented. Such being the case, especially so where a decision on a question of law is imperatively called for, and time being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invoked by petitioners. Moreover, there was, and very likely there will continue to be in the future, militancy and assertiveness of students on issues that they consider of great importance, whether concerning their welfare or the general public. That they have a right to do as citizens entitled to all the protection in the Bill of Rights. 10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay down the principles for the

guidance of school authorities and students alike. The rights to peaceable assembly and free speech are guaranteed students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. If the assembly is to be held in school premises, permit must be sought from its school authorities, who are devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the time and place of the assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense. WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento imposing a one-year suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of November 18, 1982 is made permanent. As of that date, petitioners had been suspended for more than a week. In that sense, the one-week penalty had been served. No costs. Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur. Aquino, Concepcion, Jr., and De Castro, JJ., took no part.

G.R. No. L-31195 June 5, 1973 PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners, vs. PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS, respondents. L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners. Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.: The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union. Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent Company of their proposed demonstration. The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the respondent Court reproduced the following stipulation of facts of the parties parties

3. That on March 2, 1969 complainant company learned of the projected mass demonstration at Malacaang in protest against alleged abuses of the Pasig Police Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the morning of March 4, 1969; 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu. 5. That the Company asked the union panel to confirm or deny said projected mass demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as spokesman of the union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management; 6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation of the Company. For which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly , the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike; 7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodolfo Munsod,

Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company reiterated and appealed to the PBMEO representatives that while all workers may join the Malacaang demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV: NO LOCKOUT NO STRIKE'. All those who will not follow this warning of the Company shall be dismiss; De Leon reiterated the Company's warning that the officers shall be primarily liable being the organizers of the mass demonstration. The union panel countered that it was rather too late to change their plans inasmuch as the Malacaang demonstration will be held the following morning; and 8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 4243, rec.) Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the respondent Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.) In their answer, dated May 9, 1969, herein petitioners claim that they

did not violate the existing CBA because they gave the respondent Company prior notice of the mass demonstration on March 4, 1969; that the said mass demonstration was a valid exercise of their constitutional freedom of speech against the alleged abuses of some Pasig policemen; and that their mass demonstration was not a declaration of strike because it was not directed against the respondent firm (Annex "D", pp. 31-34, rec.) After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for perpetrating the said unfair labor practice and were, as a consequence, considered to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.) Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.); and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is contrary to law and the evidence, as well as asked for ten (10) days within which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. ) In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company averred that herein petitioners received on September 22, 1969, the order dated September 17 (should be September 15), 1969; that under Section 15 of the amended Rules of the Court of Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September 27, 1969, within which to file their motion for reconsideration; and that because their motion for reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs. Castillo, 1 which held among others, that a motion for extension of the five-day period for the filing of a motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp. 61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11, 1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.). In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.). At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt thereof (p. 76, rec.). On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration on time was due to excusable negligence and honest mistake committed by the president of the petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.). Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 8889, rec.). I There is need of briefly restating basic concepts and principles which underlie the issues posed by the case at bar. (1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be "protected to the largest possible extent

in his thoughts and in his beliefs as the citadel of his person." 2 (2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles." 3 In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." 4 Laski proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise." 5 (3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. 6 And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected. 7 (4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. 8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in our society" and the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they "need breathing space to survive," permitting government regulation only "with narrow specificity." 9 Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." 11 The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or impairs property rights. 12 On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. So it has been stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press as well as of peaceful assembly and of petition for redress of grievances are absolute when directed against public officials or "when exercised in relation to our right to choose the men and women by whom we shall be governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by

Chief Judge Learned Hand, viz. whether the gravity of the evil, discounted by its improbability, justifies such invasion of free expression as is necessary to avoid the danger. 17 II The respondent Court of Industrial Relations, after opining that the mass demonstration was not a declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and tested by foregoing principles governing a democratic society, such conclusion cannot be sustained. The demonstration held petitioners on March 4, 1969 before Malacaang was against alleged abuses of some Pasig policemen, not against their employer, herein private respondent firm, said demonstrate was purely and completely an exercise of their freedom expression in general and of their right of assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief Executive, again the police officers of the municipality of Pasig. They exercise their civil and political rights for their mutual aid protection from what they believe were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect herein petitioner Union and its members fro the harassment of local police officers. It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently their respective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for its employees with the local police. Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its own employees all the more weakened the position of its laborers the alleged oppressive police who might have been all the more emboldened thereby subject its lowly employees to further indignities. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local

officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. Such apprehended loss or damage would not spell the difference between the life and death of the firm or its owners or its management. The employees' pathetic situation was a stark reality abused, harassment and persecuted as they believed they were by the peace officers of the municipality. As above intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual existence as well as that of their families. Material loss can be repaired or adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues. As heretofore stated, the primacy of human rights freedom of expression, of peaceful assembly and of petition for redress of grievances over property rights has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon at once the shield and armor of the dignity and worth of the human personality, the allconsuming ideal of our enlightened civilization becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. 19 The collective bargaining agreement which fixes the working shifts of

the employees, according to the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular working hours." The strain construction of the Court of Industrial Relations that a stipulated working shifts deny the workers the right to stage mass demonstration against police abuses during working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe condemnation. Renunciation of the freedom should not be predicated on such a slender ground. The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined by any court, such an injunction would be trenching upon the freedom expression of the workers, even if it legally appears to be illegal picketing or strike. 20 The respondent Court of Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration of a strike "as the same not rooted in any industrial dispute although there is concerted act and the occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.). The respondent firm claims that there was no need for all its employees to participate in the demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M. to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely the complete unity of the Union members as well as their total presence at the demonstration site in order to generate the maximum sympathy for the validity of their cause but also immediately action on the part of the corresponding government agencies with jurisdiction over the issues they raised against the local police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the demonstration is diminished. The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution. At any rate, the Union notified the company two days in advance of their projected demonstration and the company could have made arrangements to counteract or prevent whatever losses it might

sustain by reason of the absence of its workers for one day, especially in this case when the Union requested it to excuse only the day-shift employees who will join the demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in order to carry out its mass demonstration. And to regard as a ground for dismissal the mass demonstration held against the Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as unchristian as it is unconstitutional. III The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for redress of grievances, the respondent firm committed an unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in Section Three." We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of which was interference with or restraint on the right of the employees to engage in such common action to better shield themselves against such alleged police indignities. The insistence on the part of the respondent firm that the workers for the morning and regular shift should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated, "a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal protection as the concerted action of employees in giving publicity to a letter complaint charging bank president with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban employees. 23 We further ruled in the Republic Savings Bank case, supra, that for the employees to come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary that union activity be involved or that collective bargaining be contemplated," as long as the concerted activity is for the furtherance of their interests. 24 As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any demonstration for that matter should not unduly prejudice the normal operation of the company" and "warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees from joining the mass demonstration. However, the issues that the employees raised against the local police, were more important to them because they had the courage to proceed with the demonstration, despite such threat of dismissal. The most that could happen to them was to lose a day's wage by reason of their absence from work on the day of the demonstration. One day's pay means much to a laborer, more especially if he has a family to support. Yet, they were willing to forego their one-day salary hoping that their demonstration would bring about the desired relief from police abuses. But management was adamant in refusing to recognize the superior legitimacy of their right of free speech, free assembly and the right to petition for redress. Because the respondent company ostensibly did not find it necessary to demand from the workers proof of the truth of the alleged abuses

inflicted on them by the local police, it thereby concedes that the evidence of such abuses should properly be submitted to the corresponding authorities having jurisdiction over their complaint and to whom such complaint may be referred by the President of the Philippines for proper investigation and action with a view to disciplining the local police officers involved. On the other hand, while the respondent Court of Industrial Relations found that the demonstration "paralyzed to a large extent the operations of the complainant company," the respondent Court of Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This significant circumstance can only mean that the firm did not sustain any loss or damage. It did not present evidence as to whether it lost expected profits for failure to comply with purchase orders on that day; or that penalties were exacted from it by customers whose orders could not be filled that day of the demonstration; or that purchase orders were cancelled by the customers by reason of its failure to deliver the materials ordered; or that its own equipment or materials or products were damaged due to absence of its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric consumption that day. Such savings could have amply compensated for unrealized profits or damages it might have sustained by reason of the absence of its workers for only one day. IV Apart from violating the constitutional guarantees of free speech and assembly as well as the right to petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers for proceeding with the demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by the fundamental law to these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social justice to insure the well-being and economic security of all of the people," which guarantee is emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is under obligation at all times to give meaning

and substance to these constitutional guarantees in favor of the working man; for otherwise these constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging and protecting the exercise by employees of their right to self-organization for the purpose of collective bargaining and for the promotion of their moral, social and economic well-being." It is most unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental agency designed therefor, failed to implement this policy and failed to keep faith with its avowed mission its raison d'etre as ordained and directed by the Constitution. V It has been likewise established that a violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of an individual, who is convicted by final judgment through a forced confession, which violated his constitutional right against self-incrimination; 25 or who is denied the right to present evidence in his defense as a deprivation of his liberty without due process of law, 26 even after the accused has already served sentence for twenty-two years. 27 Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional immunities of petitioners. Both failed to accord preference to such rights and aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the municipal police. Having violated these basic human rights of the laborers, the Court of Industrial Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a nullity. Recognition and protection of such freedoms are imperative on all public offices including the courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a purely delegate legislative power, when even a

law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for time. And in such a contest between an employer and its laborer, the latter eventually loses because he cannot employ the best an dedicated counsel who can defend his interest with the required diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal services. 28a

VI The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should filed within five (5) days from notice thereof and that the arguments in support of said motion shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16). As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations pursuant to a legislative delegation. 29 The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that they could have filed it on September 28, 1969, but it was a Sunday. Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail over constitutional rights? The answer should be obvious in the light of the aforecited cases. To accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights sheltered by the

Constitution, is not only incompatible with the basic tenet of constitutional government that the Constitution is superior to any statute or subordinate rules and regulations, but also does violence to natural reason and logic. The dominance and superiority of the constitutional right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule, promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of Industrial are concerned. It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of such supporting arguments counted from the filing of the motion for reconsideration. Herein petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for reconsideration for being pro forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.) It is true that We ruled in several cases that where a motion to

reconsider is filed out of time, or where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided for by the Court of Industrial Relations rules, the order or decision subject of 29-a reconsideration becomes final and unappealable. But in all these cases, the constitutional rights of free expression, free assembly and petition were not involved. It is a procedural rule that generally all causes of action and defenses presently available must be specifically raised in the complaint or answer; so that any cause of action or defense not raised in such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for the first time on appeal, if it appears that the determination of the constitutional issue is necessary to a decision of the case, the very lis mota of the case without the resolution of which no final and complete determination of the dispute can be made. 30 It is thus seen that a procedural rule of Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the constitutional rights invoked by herein petitioners even before the institution of the unfair labor practice charged against them and in their defense to the said charge. In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a most compelling reason to deny application of a Court of Industrial Relations rule which impinges on such human rights. 30-a It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to except a particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations without concerning itself about procedural niceties that do not square with the need to do justice, in any case, without further loss of time, provided that the right of the parties to a full day in court is not substantially impaired. Thus, this Court may treat an appeal as a certiorari and vice-versa. In other words, when all the material facts are spread in the records before Us, and all the parties have been duly heard, it matters little that the error

of the court a quo is of judgment or of jurisdiction. We can then and there render the appropriate judgment. Is within the contemplation of this doctrine that as it is perfectly legal and within the power of this Court to strike down in an appeal acts without or in excess of jurisdiction or committed with grave abuse of discretion, it cannot be beyond the admit of its authority, in appropriate cases, to reverse in a certain proceed in any error of judgment of a court a quo which cannot be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do not entertain, on whether or not the errors this Court has found in the decision of the Court of Appeals are short of being jurisdiction nullities or excesses, this Court would still be on firm legal grounds should it choose to reverse said decision here and now even if such errors can be considered as mere mistakes of judgment or only as faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this case to the lower court for the sole purpose of pursuing the ordinary course of an appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this particular case at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers, whose basic human freedoms, including the right to survive, must be according supremacy over the property rights of their employer firm which has been given a full hearing on this case, especially when, as in the case at bar, no actual material damage has be demonstrated as having been inflicted on its property rights. If We can disregard our own rules when justice requires it, obedience to the Constitution renders more imperative the suspension of a Court of Industrial Relations rule that clash with the human rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the organic law. It should be stressed that the application in the instant case Section 15 of the Court of Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such application becomes unconstitutional as it subverts the human rights of petitioning labor union and workers in the light of the peculiar facts and circumstances revealed by the record. The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.

charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms ..." On several occasions, We emphasized this doctrine which was restated by Mr. Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus: As to the point that the evidence being offered by the petitioners in the motion for new trial is not "newly discovered," as such term is understood in the rules of procedure for the ordinary courts, We hold that such criterion is not binding upon the Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The Court of Industrial Relations shall adopt its, rules or procedure and shall have such other powers as generally pertain to a court of justice: Provided, however, That in the hearing, investigation and determination of any question or controversy and in exercising any duties and power under this Act, the Court shall act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable.' By this provision the industrial court is disengaged from the rigidity of the technicalities applicable to ordinary courts. Said court is not even restricted to the specific relief demanded by the parties but may issue such orders as may be deemed necessary or expedient for the purpose of settling the dispute or dispelling any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We believe that this provision is ample enough to have enabled the respondent court to consider whether or not its previous ruling that petitioners constitute a minority was founded on fact, without regard to the technical meaning of newly discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.) To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek the sanctuary of human freedoms secured to them by the

fundamental law, simply because their counsel erroneously believing that he received a copy of the decision on September 23, 1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969, which practically is only one day late considering that September 28, 1969 was a Sunday. Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910, "technicality. when it deserts its proper-office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts." (Ibid., p, 322.) To that norm, this Court has remained committed. The late Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the interpretation of procedural rule should never "sacrifice the ends justice." While "procedural laws are no other than technicalities" view them in their entirety, 'they were adopted not as ends themselves for the compliance with which courts have organized and function, but as means conducive to the realization the administration of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a litigant in altar of sophisticated technicalities with impairment of the sacred principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by Justice Makalintal, they "should give way to the realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier formulation of Justice Labrador that rules of procedure "are not to be applied in a very rigid, technical sense"; but are intended "to help secure substantial justice." (Ibid., p. 843) ... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh

for a one-day absence from work. The respondent Court itself recognized the severity of such a sanction when it did not include the dismissal of the other 393 employees who are members of the same Union and who participated in the demonstration against the Pasig police. As a matter of fact, upon the intercession of the Secretary of Labor, the Union members who are not officers, were not dismissed and only the Union itself and its thirteen (13) officers were specifically named as respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the 400 or so employee participated in the demonstration, for which reason only the Union and its thirteen (13) officers were specifically named in the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in operation that day and did not sustain any damage. The appropriate penalty if it deserves any penalty at all should have been simply to charge said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their wages for their daily sustenance as well as that of their respective families aside from the fact that it is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty tyrants in the localities. Mr. Justice Douglas articulated this pointed reminder: The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of Government, but from men of goodwill good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty. ... The Motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppress or be a reformer or an outlaw. The only protection against misguided zeal is a constant alertness of the infractions of the

guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never ending one. ... The liberties of any person are the liberties of all of us. ... In short, the Liberties of none are safe unless the liberties of all are protected.
... But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must be observe. 31

The case at bar is worse. Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic understanding of the plight of its laborers who claim that they are being subjected to indignities by the local police, It was more expedient for the firm to conserve its income or profits than to assist its employees in their fight for their freedoms and security against alleged petty tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency resorted to by the respondent company assaulted the immunities and welfare of its employees. It was pure and implement selfishness, if not greed. Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to the Bank president demanding his resignation on the grounds of immorality, nepotism in the appointment and favoritism as well as discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro, We ruled: It will avail the Bank none to gloat over this admission of the respondents. Assuming that the latter acted in their individual capacities when they wrote the letter-charge they were nonetheless protected for they were engaged in concerted activity, in the exercise of their right of self organization that includes concerted activity for mutual aid and protection, (Section 3 of the Industrial Peace Act ...)

This is the view of some members of this Court. For, as has been aptly stated, the joining in protests or demands, even by a small group of employees, if in furtherance of their interests as such, is a concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be involved or that collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]). xxx xxx xxx Instead of stifling criticism, the Bank should have allowed the respondents to air their grievances. xxx xxx xxx The Bank defends its action by invoking its right to discipline for what it calls the respondents' libel in giving undue publicity to their lettercharge. To be sure, the right of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is undenied. The Industrial Peace Act does not touch the normal exercise of the right of the employer to select his employees or to discharge them. It is directed solely against the abuse of that right by interfering with the countervailing right of self organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])... xxx xxx xxx
In the final sum and substance, this Court is in unanimity that the Bank's conduct, identified as an interference with the employees' right of selforganization or as a retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair labor practice within the meaning and intendment of section 4(a) of the Industrial Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic Savings case, supra, where the complaint assailed the morality and integrity of the bank president no less, such recognition and protection for free speech, free assembly and right to petition are rendered all the more justifiable and more imperative in the case at bar, where the mass demonstration was not

against the company nor any of its officers. WHEREFORE, judgement is hereby rendered: (1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated September 15 and October 9, 1969; and (2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of their separation from the service until re instated, minus one day's pay and whatever earnings they might have realized from other sources during their separation from the service. With costs against private respondent Philippine Blooming Company, Inc. Zaldivar, Castro, Fernando and Esguerra, JJ., concur. Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting: I bow in respectful and sincere admiration, but my sense of duty compels me to dissent. The background of this case may be found principally in the stipulation of facts upon which the decision under review is based. It is as follows: 1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing and operating under and by virtue of the laws of the Philippines with corporate address at 666 Muelle de Binondo,

Manila, which is the employer of respondent; 2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a legitimate labor organization, and the respondents herein are either officers of respondent PBMEO or members thereof; 3. That on March 2, 1969 complainant company learned of the projected mass demonstration at Malacaang in protest against alleged abuses of the Pasig Police Department to be participated by the first shift (6:00 AM 2:00 PM workers as well as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the morning of March 4, 1969; 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu. 5. That the Company asked the union panel to confirm or deny said projected mass demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as the spokesman of the union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management; 6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation of the Company. For which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a

violation of the existing CBA and, therefore, would be amounting to an illegal strike; 7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company reiterated and appealed to the PBMEO representatives that while all workers may join the Malacaang demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV "NO LOCKOUT NO STRIKE". All those who will not follow this warning of the Company shall be dismissed; De Leon reiterated the Company's warning that the officers shall be primarily liable being the organizers of the mass demonstration. The union panel countered that it was rather too late to change their plans inasmuch as the Malacaang demonstration will be held the following morning; and 8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969. Additionally, the trial court found that "the projected demonstration did in fact occur and in the process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F). Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a complaint for Unfair Labor Practice against petitioners charging that: . 3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first shift, in violation of the existing collective bargaining agreement and without filing the necessary notice as provided for by law, failed to report for work, amounting to a declaration of strike; 4. That the above acts are in violation of Section 4(a) subparagraph

6, in relation to Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining agreement. (Pars. 3 and 4, Annex C.) After due hearing, the court rendered judgment, the dispositive part of which read's: IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is found guilty of bargaining in bad faith and is hereby ordered to cease and desist from further committing the same and its representatives namely: respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly responsible for perpetrating this unfair labor practice act, are hereby considered to have lost their status as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.) Although it is alleged in the petition herein that petitioners were notified of this decision on September 23, 1969, there seems to be no serious question that they were actually served therewith on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day. (See Annex K.) It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial court; as it is also not disputed that they filed their "Arguments in Support of the Respondents' Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners' motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were filed five (5) days after the expiration of the period therefor also specified in the same rules. Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely, that in view of the failure of petitioners to file not only their motion for reconsideration but also their arguments in support thereof within the periods respectively fixed in the rules therefor, the Court of Industrial Relations acted

correctly and within the law in rendering and issuing its impugned order of October 9, 1969 dismissing petitioners' motion for reconsideration. Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations 1 wherein it was ruled that: August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this opinion. August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were advanced in support thereof. August 21, 1963. Petitioner moved for additional time to file its arguments in support of its motion to reconsider. August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking reconsideration. September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration. Ground therefor was that the arguments were filed out of time. October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the present petition with this Court. Upon respondent Perlado's return and petitioner's brief (respondents did not file their brief), the case is now before us for resolution. 1. That the judgment appealed from is a final judgment not merely an interlocutory order there is no doubt. The fact that there is need for computation of respondent Perlado's overtime pay would not render the decision incomplete. This in effect is the holding of the Court in Pan American World Airways System (Philippines) vs. Pan American Employees Association, which runs thus: 'It is next contended that in ordering the Chief of the Examining Division or his representative to compute the compensation due, the Industrial Court unduly delegated its judicial functions and thereby rendered an incomplete decision. We do not believe so. Computation of the

overtime pay involves a mechanical function, at most. And the report would still have to be submitted to the Industrial Court for its approval, by the very terms of the order itself. That there was no specification of the amount of overtime pay in the decision did not make it incomplete, since this matter should necessarily be made clear enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al., L-8718, May 11, 1956). 2. But has that judgment reached the stage of finality in the sense that it can no longer, be disturbed? CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer the question in the affirmative. Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of the trial judge must do so within five (5) days from the date on which he received notice of the decision, subject of the motion. Next follows Section 16 which says that the motion must be submitted with arguments supporting the same. But if said arguments could not be submitted simultaneously with the motion, the same section commands the 'the movant shall file the same within ten (10) days from the date of the filing of his motion for reconsideration.' Section 17 of the same rules admonishes a movant that "(f)ailure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for reconsideration or striking out of the answer and/or the supporting arguments, as the case may be". Not that the foregoing rules stand alone. Jurisprudence has since stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro forma motion for reconsideration was filed out of time its denial is in order pursuant to CIR rules, regardless of whether the arguments in support of said motion were or were not filed on time. Pangasinan Employees Laborers & Tenants Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where a motion to reconsider is filed out of time, the order or decision subject of reconsideration comes final. And so also, where the arguments in support of the motion for reconsideration are filed beyond the ten-day reglementary period, the pre forma motion for reconsideration although seasonably filed must nevertheless be

denied. This in essence is our ruling in Local 7, Press & Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is that where the motion for reconsideration is denied upon the ground that the arguments in support thereof were filed out of time, the order or decision subject of the motion becomes "final and unappealable". We find no difficulty in applying the foregoing rules and pronouncements of this Court in the case before us. On August 6, petitioner received a copy of the judgment of Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider without arguments in support thereof of August 12 was filed on time. For, August 11, the end of the five-day reglementary period to file a motion for reconsideration, was a Sunday. But, actually, the written arguments in support of the said motion were submitted to the court on August 27. The period from August 12 to August 27, is a space of fifteen (15) days. Surely enough, said arguments were filed out of time five (5) days late. And the judgment had become final. 3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time within which to present its arguments in support of its motion. Counsel in his petition before this Court pleads that the foregoing motion was grounded on the 'extremely busy and difficult schedule of counsel which would not enable him to do so within the stated ten-day reglementary period. The arguments were only filed on August 27 five (5) days late, as aforesaid. The foregoing circumstances will not avail petitioner any. It is to be noted that the motion for expansion of time was filed only on August 21, that is, one day before the due date which is August 22. It was petitioner's duty to see to it that the court act on this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of August. It did not. It merely filed its arguments on the 27th. To be underscored at this point is that "obviously to speed up the disposition of cases", CIR "has a standing rule against the extension of the ten-day period for filing supporting arguments". That noextension policy should have placed petitioner on guard. It should not have simply folded its arms, sit by supinely and relied on the court's generosity. To compound petitioner's neglect, it filed the arguments

only on August 27, 1953, knowing full well that by that time the reglementary period had expired. Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the motion for reconsideration on the ground that the supporting arguments were filed out of time. That ruling in effect denied the motion for extension. We rule that CIR's judgment has become final and unappealable. We may not review the same. Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of petitioners' pose that the respondent court erred in holding them guilty of bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on constitutional grounds. Precisely because the conclusions of the main opinion are predicated on an exposition of the constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances, so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners themselves and in the light of its attendant circumstances, this case does not call for the resolution of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my understanding of constitutional law and judicial practices related thereto, however, that even the most valuable of our constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is unquestionably established and the applicable rules of procedure consistent with substantive and procedural due process are observed. No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside final judgments only in cases wherein there is a possible denial of due process. I have not come

across any instance, and none is mentioned or cited in the welldocumented main opinion, wherein a final and executory judgment has been invalidated and set aside upon the ground that the same has the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a denial of due process. Without support from any provision of the constitution or any law or from any judicial precedent or reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and accepted as an absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even after the finality of the judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres 2 which, in principle, served as its precedent, for the very simple reason that in both of those cases, the accused were denied due process. In Chavez, the accused was compelled to testify against himself as a witness for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence to establish his defense after his demurrer to the People's evidence was denied. As may be seen, however, the constitutional issues involved in those cases are a far cry from the one now before Us. Here, petitioners do not claim they were denied due process. Nor do they pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading of petitioners can any direct or indirect assertion be found assailing the impugned decision of the respondent court as being null and void because it sanctioned a denial of a valued constitutional liberty. In their petition, petitioners state the issue for Our resolution as follows: Petitioners herein humbly submit that the issue to be resolved is

whether or not the respondent Court en banc under the facts and circumstances, should consider the Motion for Reconsideration filed by your petitioners. Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court. xxx xxx xxx The basic issue therefore is the application by the Court en banc of the strict and narrow technical rules of procedure without taking into account justice, equity and substantial merits of the case. On the other hand, the complete argument submitted by petitioners on this point in their brief runs thus: III ISSUES 1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably assemble and petition the government for redress of grievances constitute bargaining in bad faith? and, Do the facts found by the court below justify the declaration and conclusion that the union was guilty of bargaining in bad faith meriting the dismissal of the persons allegedly responsible therefore? 2. Was there grave abuse of discretion when the respondent court refused to act one way or another on the petition for relief from the resolution of October 9, 1969? IV ARGUMENT The respondent Court erred in finding the petition union guilty of bargaining in bad faith and consequently dismissing the persons allegedly responsible therefor, because such conclusion is country to

the evidence on record; that the dismissal of leaders was discriminatory. As a result of exercising the constitutional rights of freedom to assemble and petition the duly constituted authorities for redress of their grievances, the petitioners were charged and then condemned of bargaining in bad faith. The findings that petitioners were guilty of bargaining in bad faith were not borne out by the records. It was not even alleged nor proven by evidence. What has been alleged and which the respondent company tried to prove was that the demonstration amounted to a strike and hence, a violation of the provisions of the "no-lockout no strike" clause of the collective bargaining agreement. However, this allegation and proof submitted by the respondent company were practically resolved when the respondent court in the same decision stated categorically: 'The company alleges that the walkout because of the demonstration is tantamount to a declaration of a strike. We do not think so, as the same is not rooted in any industrial dispute although there is a concerted act and the occurrence of a temporary stoppage of work.' (Emphasis supplied, p. 4, 5th paragraph, Decision.) The respondent court's findings that the petitioner union bargained in bad faith is not tenable because: First, it has not been alleged nor proven by the respondent company; . Second, before the demonstration, the petitioner union and the respondent company convened twice in a meeting to thresh out the matter of demonstration. Petitioners requested that the employees and workers be excused but the respondent company instead of granting the request or even settling the matter so that the hours of work will not be disrupted, immediately threatened the employees of mass dismissal; Third, the refusal of the petitioner union to grant the request of the company that the first shift shall be excluded in the demonstration is not tantamount to bargaining in bad faith because the company knew

that the officers of the union belonged to the first shift, and that the union cannot go and lead the demonstration without their officers. It must be stated that the company intends to prohibit its officers to lead and join the demonstration because most of them belonged to the first shift; and Fourth, the findings of the respondent court that the demonstration if allowed will practically give the union the right to change the working conditions agreed in the CBA is a conclusion of facts, opinionated and not borne by any evidence on record. The demonstration did not practically change the terms or conditions of employment because it was only for one (1) day and the company knew about it before it went through. We can even say that it was the company who bargained in bad faith, when upon representation of the Bureau of Labor not to dismiss the employees demonstrating, the company tacitly approved the same and yet while the demonstration was in progress, the company filed a ULP Charge and consequently dismissed those who participated. Records of the case show that more or less 400 members of the union participated in the demonstration and yet, the respondent court selected the eight officers to be dismissed from the union thus losing their status as employees of the respondent company. The respondent court should have taken into account that the company's action in allowing the return of more or less three hundred ninety two (392) employees/members of the union is an act of condonation and the dismissal of the eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by the court, while there is a collective bargaining agreement, the union cannot go on demonstration or go on strike because it will change the terms and conditions of employment agreed in the CBA. It follows that the CBA is over and above the constitutional rights of a man to demonstrate and the statutory rights of a union to strike as provided for in Republic Act 875. This creates a bad precedent because it will appear that the rights of the union is solely dependent upon the CBA. One of the cardinal primary rights which must be respected in proceedings before the Court of Industrial Relations is that "the

decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their rights to know and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.) The petitioners respectfully and humbly submit that there is no scintilla of evidence to support the findings of the respondent court that the petitioner union bargained in bad faith. Corollary therefore, the dismissal of the individual petitioners is without basis either in fact or in law. Additionally, in their reply they also argued that: 1) That respondent court's finding that petitioners have been guilty of bargaining in bad faith and consequently lost their status as employees of the respondent company did not meet the meaning and comprehension of "substantial merits of the case." Bargaining in bad faith has not been alleged in the complaint (Annex "C", Petition) nor proven during the hearing of the can. The important and substantial merit of the case is whether under the facts and circumstances alleged in respondent company's pleadings, the demonstration done by the petitioners amounted to on "illegal strike" and therefore in violation of the "no strike no lock out" clause of the Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly submit, that the respondent court had altogether opined and decided that such demonstration does not amount to a strike. Hence, with that findings, petitioners should have been absolved of the charges against them. Nevertheless, the same respondent court disregarding, its own findings, went out of bounds by declaring the petitioners as having "bargained in faith." The stand of the respondent court is fallacious, as it follows the principle in logic as "non-siquitor"; 2) That again respondents assemble peaceably to air authorities as guaranteed limitation of the agreement wanted to impress that the freedom to grievances against the duly constituted in our Constitution is subject to the in the Collective Bargaining Agreement.

The fundamental rights of the petitioners to free speech and assembly is paramount to the provision in the Collective Bargaining Agreement and such attempt to override the constitutional provision would be null and void. These fundamental rights of the petitioners were not taken into consideration in the deliberation of the case by the respondent court; Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process. They do not posit that the decision of the industrial court is null and void on that constitutional ground. True it is that they fault the respondent court for having priced the provisions of the collective bargaining agreement herein involved over and above their constitutional right to peaceably assemble and petition for redress of their grievances against the abuses of the Pasig police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a manner that renders the proceedings a nullity. In other words, petitioners themselves consider the alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the main opinion projects. For this Court to roundly and indignantly condemn private respondent now for the grievous violation of the fundamental law the main opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific issue has not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner this case was brought to Us does not afford it the opportunity to be heard in regard to such supposed constitutional transgression. To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over the management and proprietary attributes claimed by the respondent private firm still, We cannot rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The

unbending doctrine of this Court is that "decisions, erroneous or not, become final after the period fixed by law; litigations would be endless, no questions would be finally settled; and titles to property would become precarious if the losing party were allowed to reopen them at any time in the future". 3 I only have to add to this that the fact that the error is in the interpretation, construction or application of a constitutional precept not constituting a denial of due process, should not make any difference. Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms. In both instances, there is injustice which should be intolerable were it not for the more paramount considerations that inform the principle of immutability of final judgments. I dare say this must be the reason why, as I have already noted, the main opinion does not cite any constitutional provision, law or rule or any judicial doctrine or principle supporting its basic holding that infringement of constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render valid judgments. In this connection, it must be recalled that the teaching of Philippine Association of Colleges and Universities vs. Secretary of Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at bar, the petitioners have not raised, they are not insisting upon, much less have they adequately argued the constitutional issues so extendedly and ably discussed in the main opinion. Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a court of a constitutional issue not amounting to a denial of due process renders its judgment or decision null and void, and, therefore, subject to attack even after said judgment or decision has become final and executory. I have actually tried to bring myself into agreement with the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize upon further reflection that the very power granted to us to review decisions of lower courts involving questions of law(and these include constitutional issues not affecting the validity of statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the manner provided in the law of the Rules of Court. In other words, before We can exercise appellate jurisdiction over constitutional issues, no matter how important they may be, there must first be a showing of compliance with the applicable procedural law or rules, among them, those governing appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is already final and executory, this Court would be devoid of power and authority to review, much less alter or modify the same, absent any denial of due process or fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not merely whether or not We should pass upon a question or issue not specifically raised by the party concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent in Elizalde vs. Court, supra, which for its foursquare applicability to the facts of this case, We have no choice but to follow, that is, that in view of reconsideration but even their argument supporting the same within the prescribed period, "the judgment (against them)has become final, beyond recall". Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments are made contingent on the correctness thereof from the constitutional standpoint, and that in truth, whether or not they are correct is something that is always dependent upon combined opinion of the members of the Supreme Court, which in turn is naturally as changeable as the members themselves are changed, I cannot conceive of anything more pernicious and destructive to a trustful administration of justice than

the idea that, even without any showing of denial of due process or want of jurisdiction of the court, a final and executory judgment of such court may still be set aside or reopened in instances other than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1) of the Civil Code. 7 And just to emphasize the policy of the law of respecting judgments once they have become final, even as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors, 8 it is only when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside, 9 and this only when the remedy is sought within the prescriptive period. 10 Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776: Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus: ... Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were instituted was to put an end to controversies. To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus keep causes ever within his power, to determine and redetermine them term after term, to bandy his judgments about from one party to the other, and to change his conclusions as freely and as capriciously as a chamelon may change its hues, then litigation might become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles, L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final judgments but rather on the correct interpretation of the contents of the judgment in question therein. Relevantly to this case at bar, I said then: The point of res adjudicata discussed in the dissents has not escaped my attention. Neither am I overlooking the point of the Chief Justice regarding the dangerous and inimical implications of a ruling that would authorize the revision, amendment or alteration of a final and executory judgment. I want to emphasize that my position in this opinion does not detract a whit from the soundness, authority and binding force of existing doctrines enjoining any such modifications. The public policy of maintaining faith and respect in judicial decisions, which inform said doctrines, is admittedly of the highest order. I am not advocating any departure from them. Nor am I trying to put forth for execution a decision that I believe should have been rather than what it is. All I am doing is to view not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have been, and, by opinion, I would like to guide the court a quo as to what, in my own view, is the true and correct meaning and implications of decision of this Court, not that of Judge Tengco's. The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein the Court refused to be constrained by technical rules of procedure in its determination to accord substantial justice to the parties I still believe in those decisions, some of which were penned by me. I am certain, however, that in none of those precedents did this Court disturb a judgment already final and executory. It too obvious to require extended elucidation or even reference any precedent or authority that the principle of immutability of final judgments is not a mere technicality, and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice. Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far as to maintain that the long existing and constantly applied rule governing the filing of motions for

reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of Industrial Relations Rule insofar as circumstances of the instant case are concerned." I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed objectively, it can readily be seen that there can hardly be any factual or logical basis for such a critical view of the rule in question. Said rule provides: MOTIONS FOR RECONSIDERATION Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date on which he receives notice of the order or decision, object of the motion for reconsideration, the same to be verified under oath with respect to the correctness of the allegations of fact, and serving a copy thereof, personally or by registered mail, on the adverse party. The latter may file an answer, in six (6) copies, duly verified under oath. Sec. 16. Both the motion and the answer shall be submitted with arguments supporting the same. If the arguments can not be submitted simultaneously with said motions, upon notice Court, the movant shall file same within ten (10) days from the date of the filing of his motion for reconsideration. The adverse party shall also file his answer within ten (10) days from the receipt by him of a copy of the

arguments submitted by the movant. Sec. 17. After an answer to the motion is registered, or after ten (10) days from the receipt of the arguments in support of said motion having been filed, the motion shall be deemed submitted for resolution of the Court in banc, unless it is considered necessary to bear oral arguments, in which case the Court shall issue the corresponding order or notice to that effect. Failure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for reconsideration or striking out of the answer and/or the supporting arguments, as the case may be. (As amended April 20, 1951, Court of Industrial Relations.). As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-forma motion for reconsideration without any argument or lengthy discussion and with barely a brief statement of the fundamental ground or grounds therefor, without prejudice to supplementing the same by making the necessary exposition, with citations laws and authorities, in the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of just advising the court and the other party that the movant does not agree with the judgment due to fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is to apprise everyone concerned within the shortest possible time that a reconsideration is to sought, and thereby enable the parties concerned to make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital industries in which labor-management problems might require day-to-day solutions and it is to the best interests of justice and concerned that the attitude of each party at every imports juncture of the case be known to the other so that both avenues for earlier settlement may, if possible, be explored. There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most respectfully moves for the RECONSIDERATION of the Order of this Honorable Court dated September 17, 1969 on the ground that the same is not in accordance with law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court. WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted. Manila, September 27, 1969. To say that five (5) days is an unreasonable period for the filing of such a motion is to me simply incomprehensible. What worse in this case is that petitioners have not even taken the trouble of giving an explanation of their inability to comply with the rule. Not only that, petitioners were also late five (5) days in filing their written arguments in support of their motion, and, the only excuse offered for such delay is that both the President of the Union and the office clerk who took charge of the matter forgot to do what they were instructed to do by counsel, which, according to this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge employed by litigants who fail to observe the procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook such nonchalance and indifference. In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of judgments are in a sense more substantive than procedural in their real nature, for in their operation they have the effect of either creating or terminating rights pursuant to the terms of the particular judgment concerned. And the fact that the court that rendered such final judgment is deprived of jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover, because they have the effect of terminating rights and the enforcement thereof, it may be said that said rules

partake of the nature also of rules of prescription, which again are substantive. Now, the twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed period. On the other hand, procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and be has no reason to complain because public policy demands that rights must be asserted in time, as otherwise they can be deemed waived. I see no justification whatsoever for not applying these self-evident principles to the case of petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have grave doubts as to whether we can suspend rules of other courts, particularly that is not under our supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in order to hasten the administration of substance justice, this Court did exercise in some instances its re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case in which the judo has already become final and executory. Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake committed by the President of the respondent Union and on office clerk of the counsel for respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite previous instructions and of the said office employee having also coincidentally forgotten "to do the work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations, for, under probably more justification circumstances, this Court ruled out a similar explanation previous case this wise: We find merit in PAL's petition. The excuse offered respondent

Santos as reason for his failure to perfect in due time appeal from the judgment of the Municipal Court, that counsel's clerk forgot to hand him the court notice, is the most hackneyed and habitual subterfuge employed by litigants who fail to observe procedural requirements prescribed by the Rules of Court. The uncritical acceptance of this kind of common place excuses, in the face of the Supreme Court's repeated rulings that they are neither credible nor constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical exercise of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.) For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present case has already become final and executory, nay, not without the fault of the petitioners, hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this case, without pronouncement as to costs. TEEHANKEE, J., concurring: For having carried out a mass demonstration at Malacaang on March 4, 1969 in protest against alleged abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration. Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding that it concededly was not a declaration of strike nor directed in any manner against respondent employer, and ordering the dismissal of the union office manifestly constituted grave abuse of discretion in fact and in law. There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm conceded that "the demonstration is

an inalienable right of the union guaranteed' by the Constitution" and the union up to the day of the demonstration pleaded by cablegram to the company to excuse the first shift and allow it to join the demonstration in accordance with their previous requests. Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause as would warrant the union leaders' dismissal, since as found by respondent court itself the mass demonstration was not a declaration of a strike, there being no industrial dispute between the protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to exercise their constitutional rights of free expression, peaceable assembly and petition for redress of grievance against alleged police excesses. Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to the negligence of petitioners' counsel and/or the union president should likewise be set aside as a manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse consequences of the late filing of their motion for reconsideration due to such negligence which was not acted upon by respondent court should have been granted, considering the monstrous injustice that would otherwise be caused the petitioners through their summary dismissal from employment, simply because they sought in good faith to exercise basic human rights guaranteed them by the Constitution. It should be noted further that no proof of actual loss from the oneday stoppage of work was shown by respondent company, providing basis to the main opinion's premise that its insistence on dismissal of the union leaders for having included the first shift workers in the mass demonstration against its wishes was but an act of arbitrary vindictiveness. Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction to afford protection to labor be given true substance and meaning. No person may be deprived of such basic rights without due process which is but "responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and

unfairness avoided ... Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness." 2 Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the judgment for petitioners as set forth in the main opinion.

Separate Opinions BARREDO, J., dissenting: I bow in respectful and sincere admiration, but my sense of duty compels me to dissent. The background of this case may be found principally in the stipulation of facts upon which the decision under review is based. It is as follows: 1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing and operating under and by virtue of the laws of the Philippines with corporate address at 666 Muelle de Binondo, Manila, which is the employer of respondent; 2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a legitimate labor organization, and the respondents herein are either officers of respondent PBMEO or members thereof; 3. That on March 2, 1969 complainant company learned of the projected mass demonstration at Malacaang in protest against alleged abuses of the Pasig Police Department to be participated by the first shift (6:00 AM 2:00 PM workers as well as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the morning of March 4, 1969; 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the Company's canteen, and those present were:

for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu. 5. That the Company asked the union panel to confirm or deny said projected mass demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as the spokesman of the union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management; 6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation of the Company. For which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike; 7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company reiterated and appealed to the PBMEO representatives that while all workers may join the Malacaang demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV "NO LOCKOUT NO STRIKE". All those who will not follow this warning of the Company shall be dismissed; De Leon reiterated

the Company's warning that the officers shall be primarily liable being the organizers of the mass demonstration. The union panel countered that it was rather too late to change their plans inasmuch as the Malacaang demonstration will be held the following morning; and 8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969. Additionally, the trial court found that "the projected demonstration did in fact occur and in the process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F). Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a complaint for Unfair Labor Practice against petitioners charging that: . 3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first shift, in violation of the existing collective bargaining agreement and without filing the necessary notice as provided for by law, failed to report for work, amounting to a declaration of strike; 4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining agreement. (Pars. 3 and 4, Annex C.) After due hearing, the court rendered judgment, the dispositive part of which read's: IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is found guilty of bargaining in bad faith and is hereby ordered to cease and desist from further committing the same and its representatives namely: respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly responsible for perpetrating this unfair labor practice act, are hereby considered to have lost their status as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on September 23, 1969, there seems to be no serious question that they were actually served therewith on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day. (See Annex K.) It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial court; as it is also not disputed that they filed their "Arguments in Support of the Respondents' Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners' motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were filed five (5) days after the expiration of the period therefor also specified in the same rules. Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely, that in view of the failure of petitioners to file not only their motion for reconsideration but also their arguments in support thereof within the periods respectively fixed in the rules therefor, the Court of Industrial Relations acted correctly and within the law in rendering and issuing its impugned order of October 9, 1969 dismissing petitioners' motion for reconsideration. Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations 1 wherein it was ruled that: August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this opinion. August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were advanced in support thereof. August 21, 1963. Petitioner moved for additional time to file its arguments in support of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking reconsideration. September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration. Ground therefor was that the arguments were filed out of time. October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the present petition with this Court. Upon respondent Perlado's return and petitioner's brief (respondents did not file their brief), the case is now before us for resolution. 1. That the judgment appealed from is a final judgment not merely an interlocutory order there is no doubt. The fact that there is need for computation of respondent Perlado's overtime pay would not render the decision incomplete. This in effect is the holding of the Court in Pan American World Airways System (Philippines) vs. Pan American Employees Association, which runs thus: 'It is next contended that in ordering the Chief of the Examining Division or his representative to compute the compensation due, the Industrial Court unduly delegated its judicial functions and thereby rendered an incomplete decision. We do not believe so. Computation of the overtime pay involves a mechanical function, at most. And the report would still have to be submitted to the Industrial Court for its approval, by the very terms of the order itself. That there was no specification of the amount of overtime pay in the decision did not make it incomplete, since this matter should necessarily be made clear enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al., L-8718, May 11, 1956). 2. But has that judgment reached the stage of finality in the sense that it can no longer, be disturbed? CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer the question in the affirmative. Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of the trial judge must do so within five (5) days from the date on which he received notice of the decision, subject of the motion. Next follows Section 16 which says that the

motion must be submitted with arguments supporting the same. But if said arguments could not be submitted simultaneously with the motion, the same section commands the 'the movant shall file the same within ten (10) days from the date of the filing of his motion for reconsideration.' Section 17 of the same rules admonishes a movant that "(f)ailure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for reconsideration or striking out of the answer and/or the supporting arguments, as the case may be". Not that the foregoing rules stand alone. Jurisprudence has since stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro forma motion for reconsideration was filed out of time its denial is in order pursuant to CIR rules, regardless of whether the arguments in support of said motion were or were not filed on time. Pangasinan Employees Laborers & Tenants Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where a motion to reconsider is filed out of time, the order or decision subject of reconsideration comes final. And so also, where the arguments in support of the motion for reconsideration are filed beyond the ten-day reglementary period, the pre forma motion for reconsideration although seasonably filed must nevertheless be denied. This in essence is our ruling in Local 7, Press & Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is that where the motion for reconsideration is denied upon the ground that the arguments in support thereof were filed out of time, the order or decision subject of the motion becomes "final and unappealable". We find no difficulty in applying the foregoing rules and pronouncements of this Court in the case before us. On August 6, petitioner received a copy of the judgment of Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider without arguments in support thereof of August 12 was filed on time. For, August 11, the end of the five-day reglementary period to file a motion for reconsideration, was a Sunday. But, actually, the written arguments in support of the said motion were submitted to the court on August 27. The period from August 12 to August 27, is a space of fifteen (15) days. Surely enough, said arguments were filed out of time five (5) days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time within which to present its arguments in support of its motion. Counsel in his petition before this Court pleads that the foregoing motion was grounded on the 'extremely busy and difficult schedule of counsel which would not enable him to do so within the stated ten-day reglementary period. The arguments were only filed on August 27 five (5) days late, as aforesaid. The foregoing circumstances will not avail petitioner any. It is to be noted that the motion for expansion of time was filed only on August 21, that is, one day before the due date which is August 22. It was petitioner's duty to see to it that the court act on this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of August. It did not. It merely filed its arguments on the 27th. To be underscored at this point is that "obviously to speed up the disposition of cases", CIR "has a standing rule against the extension of the ten-day period for filing supporting arguments". That noextension policy should have placed petitioner on guard. It should not have simply folded its arms, sit by supinely and relied on the court's generosity. To compound petitioner's neglect, it filed the arguments only on August 27, 1953, knowing full well that by that time the reglementary period had expired. Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the motion for reconsideration on the ground that the supporting arguments were filed out of time. That ruling in effect denied the motion for extension. We rule that CIR's judgment has become final and unappealable. We may not review the same. Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of petitioners' pose that the respondent court erred in holding them guilty of bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on constitutional grounds. Precisely because the conclusions of the main opinion are predicated on an exposition of the constitutional guarantees of freedoms of

speech and peaceful assembly for redress of grievances, so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners themselves and in the light of its attendant circumstances, this case does not call for the resolution of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my understanding of constitutional law and judicial practices related thereto, however, that even the most valuable of our constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is unquestionably established and the applicable rules of procedure consistent with substantive and procedural due process are observed. No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside final judgments only in cases wherein there is a possible denial of due process. I have not come across any instance, and none is mentioned or cited in the welldocumented main opinion, wherein a final and executory judgment has been invalidated and set aside upon the ground that the same has the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a denial of due process. Without support from any provision of the constitution or any law or from any judicial precedent or reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and accepted as an absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even after the finality of the judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres 2 which, in principle, served as its precedent, for the very simple reason that in both of those cases, the accused were denied due process. In Chavez, the accused was compelled to testify against himself as a

witness for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence to establish his defense after his demurrer to the People's evidence was denied. As may be seen, however, the constitutional issues involved in those cases are a far cry from the one now before Us. Here, petitioners do not claim they were denied due process. Nor do they pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading of petitioners can any direct or indirect assertion be found assailing the impugned decision of the respondent court as being null and void because it sanctioned a denial of a valued constitutional liberty. In their petition, petitioners state the issue for Our resolution as follows: Petitioners herein humbly submit that the issue to be resolved is whether or not the respondent Court en banc under the facts and circumstances, should consider the Motion for Reconsideration filed by your petitioners. Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court. xxx xxx xxx The basic issue therefore is the application by the Court en banc of the strict and narrow technical rules of procedure without taking into account justice, equity and substantial merits of the case. On the other hand, the complete argument submitted by petitioners on this point in their brief runs thus: III ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably assemble and petition the government for redress of grievances constitute bargaining in bad faith? and, Do the facts found by the court below justify the declaration and conclusion that the union was guilty of bargaining in bad faith meriting the dismissal of the persons allegedly responsible therefore? 2. Was there grave abuse of discretion when the respondent court refused to act one way or another on the petition for relief from the resolution of October 9, 1969? IV ARGUMENT The respondent Court erred in finding the petition union guilty of bargaining in bad faith and consequently dismissing the persons allegedly responsible therefor, because such conclusion is country to the evidence on record; that the dismissal of leaders was discriminatory. As a result of exercising the constitutional rights of freedom to assemble and petition the duly constituted authorities for redress of their grievances, the petitioners were charged and then condemned of bargaining in bad faith. The findings that petitioners were guilty of bargaining in bad faith were not borne out by the records. It was not even alleged nor proven by evidence. What has been alleged and which the respondent company tried to prove was that the demonstration amounted to a strike and hence, a violation of the provisions of the "no-lockout no strike" clause of the collective bargaining agreement. However, this allegation and proof submitted by the respondent company were practically resolved when the respondent court in the same decision stated categorically: 'The company alleges that the walkout because of the demonstration is tantamount to a declaration of a strike. We do not think so, as the same is not rooted in any industrial dispute although there is a

concerted act and the occurrence of a temporary stoppage of work.' (Emphasis supplied, p. 4, 5th paragraph, Decision.) The respondent court's findings that the petitioner union bargained in bad faith is not tenable because: First, it has not been alleged nor proven by the respondent company; . Second, before the demonstration, the petitioner union and the respondent company convened twice in a meeting to thresh out the matter of demonstration. Petitioners requested that the employees and workers be excused but the respondent company instead of granting the request or even settling the matter so that the hours of work will not be disrupted, immediately threatened the employees of mass dismissal; Third, the refusal of the petitioner union to grant the request of the company that the first shift shall be excluded in the demonstration is not tantamount to bargaining in bad faith because the company knew that the officers of the union belonged to the first shift, and that the union cannot go and lead the demonstration without their officers. It must be stated that the company intends to prohibit its officers to lead and join the demonstration because most of them belonged to the first shift; and Fourth, the findings of the respondent court that the demonstration if allowed will practically give the union the right to change the working conditions agreed in the CBA is a conclusion of facts, opinionated and not borne by any evidence on record. The demonstration did not practically change the terms or conditions of employment because it was only for one (1) day and the company knew about it before it went through. We can even say that it was the company who bargained in bad faith, when upon representation of the Bureau of Labor not to dismiss the employees demonstrating, the company tacitly approved the same and yet while the demonstration was in progress, the company filed a ULP Charge and consequently dismissed those who participated. Records of the case show that more or less 400 members of the union participated in the demonstration and yet, the respondent court

selected the eight officers to be dismissed from the union thus losing their status as employees of the respondent company. The respondent court should have taken into account that the company's action in allowing the return of more or less three hundred ninety two (392) employees/members of the union is an act of condonation and the dismissal of the eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by the court, while there is a collective bargaining agreement, the union cannot go on demonstration or go on strike because it will change the terms and conditions of employment agreed in the CBA. It follows that the CBA is over and above the constitutional rights of a man to demonstrate and the statutory rights of a union to strike as provided for in Republic Act 875. This creates a bad precedent because it will appear that the rights of the union is solely dependent upon the CBA. One of the cardinal primary rights which must be respected in proceedings before the Court of Industrial Relations is that "the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their rights to know and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.) The petitioners respectfully and humbly submit that there is no scintilla of evidence to support the findings of the respondent court that the petitioner union bargained in bad faith. Corollary therefore, the dismissal of the individual petitioners is without basis either in fact or in law. Additionally, in their reply they also argued that: 1) That respondent court's finding that petitioners have been guilty of bargaining in bad faith and consequently lost their status as employees of the respondent company did not meet the meaning and comprehension of "substantial merits of the case." Bargaining in bad

faith has not been alleged in the complaint (Annex "C", Petition) nor proven during the hearing of the can. The important and substantial merit of the case is whether under the facts and circumstances alleged in respondent company's pleadings, the demonstration done by the petitioners amounted to on "illegal strike" and therefore in violation of the "no strike no lock out" clause of the Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly submit, that the respondent court had altogether opined and decided that such demonstration does not amount to a strike. Hence, with that findings, petitioners should have been absolved of the charges against them. Nevertheless, the same respondent court disregarding, its own findings, went out of bounds by declaring the petitioners as having "bargained in faith." The stand of the respondent court is fallacious, as it follows the principle in logic as "non-siquitor"; 2) That again respondents wanted to impress that the freedom to assemble peaceably to air grievances against the duly constituted authorities as guaranteed in our Constitution is subject to the limitation of the agreement in the Collective Bargaining Agreement. The fundamental rights of the petitioners to free speech and assembly is paramount to the provision in the Collective Bargaining Agreement and such attempt to override the constitutional provision would be null and void. These fundamental rights of the petitioners were not taken into consideration in the deliberation of the case by the respondent court; Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process. They do not posit that the decision of the industrial court is null and void on that constitutional ground. True it is that they fault the respondent court for having priced the provisions of the collective bargaining agreement herein involved over and above their constitutional right to peaceably assemble and petition for redress of their grievances against the abuses of the Pasig police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a manner that renders the proceedings a nullity. In other words, petitioners themselves consider the alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the main opinion projects. For this Court to roundly and indignantly condemn private respondent now for the grievous violation of the fundamental law the main

opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific issue has not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner this case was brought to Us does not afford it the opportunity to be heard in regard to such supposed constitutional transgression. To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over the management and proprietary attributes claimed by the respondent private firm still, We cannot rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The unbending doctrine of this Court is that "decisions, erroneous or not, become final after the period fixed by law; litigations would be endless, no questions would be finally settled; and titles to property would become precarious if the losing party were allowed to reopen them at any time in the future". 3 I only have to add to this that the fact that the error is in the interpretation, construction or application of a constitutional precept not constituting a denial of due process, should not make any difference. Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms. In both instances, there is injustice which should be intolerable were it not for the more paramount considerations that inform the principle of immutability of final judgments. I dare say this must be the reason why, as I have already noted, the main opinion does not cite any constitutional provision, law or rule or any judicial doctrine or principle supporting its basic holding that infringement of constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges and Universities vs. Secretary of Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at bar, the petitioners have not raised, they are not insisting upon, much less have they adequately argued the constitutional issues so extendedly and ably discussed in the main opinion. Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a court of a constitutional issue not amounting to a denial of due process renders its judgment or decision null and void, and, therefore, subject to attack even after said judgment or decision has become final and executory. I have actually tried to bring myself into agreement with the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the fore to stifle my effort. As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize upon further reflection that the very power granted to us to review decisions of lower courts involving questions of law(and these include constitutional issues not affecting the validity of statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the manner provided in the law of the Rules of Court. In other words, before We can exercise appellate jurisdiction over constitutional issues, no matter how important they may be, there must first be a showing of compliance with the applicable procedural law or rules, among them, those governing appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is already final and executory, this Court would be devoid of power and authority to review, much less alter or modify the same, absent any denial of due process or fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not merely whether or not We should pass upon a question or issue not

specifically raised by the party concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent in Elizalde vs. Court, supra, which for its foursquare applicability to the facts of this case, We have no choice but to follow, that is, that in view of reconsideration but even their argument supporting the same within the prescribed period, "the judgment (against them)has become final, beyond recall". Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments are made contingent on the correctness thereof from the constitutional standpoint, and that in truth, whether or not they are correct is something that is always dependent upon combined opinion of the members of the Supreme Court, which in turn is naturally as changeable as the members themselves are changed, I cannot conceive of anything more pernicious and destructive to a trustful administration of justice than the idea that, even without any showing of denial of due process or want of jurisdiction of the court, a final and executory judgment of such court may still be set aside or reopened in instances other than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1) of the Civil Code. 7 And just to emphasize the policy of the law of respecting judgments once they have become final, even as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors, 8 it is only when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside, 9 and this only when the remedy is sought within the prescriptive period. 10 Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776: Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that

result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus: ... Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were instituted was to put an end to controversies. To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus keep causes ever within his power, to determine and redetermine them term after term, to bandy his judgments about from one party to the other, and to change his conclusions as freely and as capriciously as a chamelon may change its hues, then litigation might become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.). My disagreement with the dissenters in Republic vs. Judge de los Angeles, L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final judgments but rather on the correct interpretation of the contents of the judgment in question therein. Relevantly to this case at bar, I said then: The point of res adjudicata discussed in the dissents has not escaped my attention. Neither am I overlooking the point of the Chief Justice regarding the dangerous and inimical implications of a ruling that would authorize the revision, amendment or alteration of a final and executory judgment. I want to emphasize that my position in this opinion does not detract a whit from the soundness, authority and binding force of existing doctrines enjoining any such modifications. The public policy of maintaining faith and respect in judicial decisions, which inform said doctrines, is admittedly of the highest order. I am not advocating any departure from them. Nor am I trying to put forth for execution a decision that I believe should have been rather than what it is. All I am doing is to view not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have been, and, by opinion, I would like to guide the

court a quo as to what, in my own view, is the true and correct meaning and implications of decision of this Court, not that of Judge Tengco's. The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein the Court refused to be constrained by technical rules of procedure in its determination to accord substantial justice to the parties I still believe in those decisions, some of which were penned by me. I am certain, however, that in none of those precedents did this Court disturb a judgment already final and executory. It too obvious to require extended elucidation or even reference any precedent or authority that the principle of immutability of final judgments is not a mere technicality, and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice. Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far as to maintain that the long existing and constantly applied rule governing the filing of motions for reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of Industrial Relations Rule insofar as circumstances of the instant case are concerned." I am afraid the zeal and passion of these arguments do not justify the

conclusion suggested. Viewed objectively, it can readily be seen that there can hardly be any factual or logical basis for such a critical view of the rule in question. Said rule provides: MOTIONS FOR RECONSIDERATION Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date on which he receives notice of the order or decision, object of the motion for reconsideration, the same to be verified under oath with respect to the correctness of the allegations of fact, and serving a copy thereof, personally or by registered mail, on the adverse party. The latter may file an answer, in six (6) copies, duly verified under oath. Sec. 16. Both the motion and the answer shall be submitted with arguments supporting the same. If the arguments can not be submitted simultaneously with said motions, upon notice Court, the movant shall file same within ten (10) days from the date of the filing of his motion for reconsideration. The adverse party shall also file his answer within ten (10) days from the receipt by him of a copy of the arguments submitted by the movant. Sec. 17. After an answer to the motion is registered, or after ten (10) days from the receipt of the arguments in support of said motion having been filed, the motion shall be deemed submitted for resolution of the Court in banc, unless it is considered necessary to bear oral arguments, in which case the Court shall issue the corresponding order or notice to that effect. Failure to observe the above-specified periods shall be sufficient cause for dismissal of the motion for reconsideration or striking out of the answer and/or the supporting arguments, as the case may be. (As amended April 20, 1951, Court of Industrial Relations.). As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-forma motion for reconsideration without any argument or lengthy discussion and with barely a brief statement of the fundamental ground or grounds therefor, without prejudice to supplementing the same by making the necessary exposition, with

citations laws and authorities, in the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of just advising the court and the other party that the movant does not agree with the judgment due to fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is to apprise everyone concerned within the shortest possible time that a reconsideration is to sought, and thereby enable the parties concerned to make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital industries in which labor-management problems might require day-to-day solutions and it is to the best interests of justice and concerned that the attitude of each party at every imports juncture of the case be known to the other so that both avenues for earlier settlement may, if possible, be explored. There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the motion filed petitioners was no more than the following: MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this Honorable Court most respectfully moves for the RECONSIDERATION of the Order of this Honorable Court dated September 17, 1969 on the ground that the same is not in accordance with law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court. WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted. Manila, September 27, 1969. To say that five (5) days is an unreasonable period for the filing of such a motion is to me simply incomprehensible. What worse in this case is that petitioners have not even taken the trouble of giving an explanation of their inability to comply with the rule. Not only that,

petitioners were also late five (5) days in filing their written arguments in support of their motion, and, the only excuse offered for such delay is that both the President of the Union and the office clerk who took charge of the matter forgot to do what they were instructed to do by counsel, which, according to this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge employed by litigants who fail to observe the procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook such nonchalance and indifference. In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of judgments are in a sense more substantive than procedural in their real nature, for in their operation they have the effect of either creating or terminating rights pursuant to the terms of the particular judgment concerned. And the fact that the court that rendered such final judgment is deprived of jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover, because they have the effect of terminating rights and the enforcement thereof, it may be said that said rules partake of the nature also of rules of prescription, which again are substantive. Now, the twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed period. On the other hand, procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and be has no reason to complain because public policy demands that rights must be asserted in time, as otherwise they can be deemed waived. I see no justification whatsoever for not applying these self-evident principles to the case of petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have grave doubts as to whether we can suspend rules of other courts, particularly that is not under our supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in order to hasten the administration of substance justice, this Court did exercise in some instances its re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case in

which the judo has already become final and executory. Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake committed by the President of the respondent Union and on office clerk of the counsel for respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite previous instructions and of the said office employee having also coincidentally forgotten "to do the work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations, for, under probably more justification circumstances, this Court ruled out a similar explanation previous case this wise: We find merit in PAL's petition. The excuse offered respondent Santos as reason for his failure to perfect in due time appeal from the judgment of the Municipal Court, that counsel's clerk forgot to hand him the court notice, is the most hackneyed and habitual subterfuge employed by litigants who fail to observe procedural requirements prescribed by the Rules of Court. The uncritical acceptance of this kind of common place excuses, in the face of the Supreme Court's repeated rulings that they are neither credible nor constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical exercise of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.) For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present case has already become final and executory, nay, not without the fault of the petitioners, hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this case, without pronouncement as to costs. TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacaang on March 4, 1969 in protest against alleged abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration. Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding that it concededly was not a declaration of strike nor directed in any manner against respondent employer, and ordering the dismissal of the union office manifestly constituted grave abuse of discretion in fact and in law. There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution" and the union up to the day of the demonstration pleaded by cablegram to the company to excuse the first shift and allow it to join the demonstration in accordance with their previous requests. Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause as would warrant the union leaders' dismissal, since as found by respondent court itself the mass demonstration was not a declaration of a strike, there being no industrial dispute between the protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to exercise their constitutional rights of free expression, peaceable assembly and petition for redress of grievance against alleged police excesses. Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to the negligence of petitioners' counsel and/or the union president should likewise be set aside as a manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse consequences

of the late filing of their motion for reconsideration due to such negligence which was not acted upon by respondent court should have been granted, considering the monstrous injustice that would otherwise be caused the petitioners through their summary dismissal from employment, simply because they sought in good faith to exercise basic human rights guaranteed them by the Constitution. It should be noted further that no proof of actual loss from the oneday stoppage of work was shown by respondent company, providing basis to the main opinion's premise that its insistence on dismissal of the union leaders for having included the first shift workers in the mass demonstration against its wishes was but an act of arbitrary vindictiveness. Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction to afford protection to labor be given true substance and meaning. No person may be deprived of such basic rights without due process which is but "responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided ... Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness." 2 Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the judgment for petitioners as set forth in the main opinion.

G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents. x---------------------------------x G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs. EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents. x---------------------------------x G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,

NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents. DECISION AZCUNA, J.: Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries. The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them,

causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also cosponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced. B.P. No. 880, "The Public Assembly Act of 1985," provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985." Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Sec. 3. Definition of terms. For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political,

economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the

applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit;
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(b) To police the ranks of the demonstrators in order to prevent nondemonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the nonparticipants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public

assembly by the use of a motor vehicle, its horns and loud sound systems. Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.

Sec. 18. Effectivity. This Act shall take effect upon its approval. Approved, October 22, 1985. CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang Official Manila, Philippines NEWS Release No. 2 September 21, 2005 STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of antigovernment groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The Presidents call for unity and reconciliation stands, based on the

rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5 They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are

unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong. Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction. Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. Respondents argue that: 1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses." 2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no

reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6 3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys program content or the statements of the speakers therein, except under the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7 4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to support them. 5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law. 6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is

a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880. Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a contentbased regulation because it covers all rallies. The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows: 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160: (a) Are these content-neutral or content-based regulations? (b) Are they void on grounds of overbreadth or vagueness? (c) Do they constitute prior restraint? (d) Are they undue delegations of powers to Mayors? (e) Do they violate international human rights treaties and the Universal Declaration of Human Rights? 2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR): (a) Is the policy void on its face or due to vagueness? (b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court: 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. 2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law. The Court will now proceed to address the principal issues, taking into account the foregoing developments. Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit. Section 4 of Article III of the Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows: There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in

drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18 Reyes v. Bagatsing19 further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any

matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be

sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from

ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiffmunicipality. Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta. 4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of

licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the

American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." xxx 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes: Reyes v. Bagatsing (G.R. No. L-65366, November 9, 1983, B.P. No. 880

Sec. 4. Permit when requ A written permit shall be persons to organize and

125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.

public place. However, no public assembly shall be park duly established by l property, in which case on the one entitled to its lega the campus of a gover educational institution whic and regulations of said ed meetings or rallies held d period as provided for by Act.

Sec. 5. Application require permit shall comply with th

(a) The applications shall the names of the leaders such public assembly; t thereof, and place or stree activity; and the prob participating, the transpo systems to be used.

(b) The application shal responsibility of applicant u

(c) The application shall b mayor of the city or munici intended activity is to be days before the scheduled

(d) Upon receipt of the ap acknowledged in writing municipal mayor shall cau be posted at a conspic municipal building. Sec. 6. Action to be taken

(a) It shall be the duty of th in his behalf to issue or g

clear and convincing evide will create a clear and pr public safety, public con public health.

(b) The mayor or any offi act on the application with the date the application permit shall be deemed gr the mayor or any official accept the application for a be posted by the applicant of the mayor and shall be d

(c) If the mayor is of the vi grave danger of a substan or modification of the p inform the applicant who m

(d) The action on the pe served on the applica[nt] w

(e) If the mayor or any offic the application or modifi permit, the applicant may appropriate court of law.

(f) In case suit is brought Court, the Municipal Trial Trial Court, the Regional T Appellate Court, its decisi appropriate court within receipt of the same. No appeal shall be required permit or modifying it i applicant shall be immedia

(g) All cases filed in cour decided within twenty-four Cases filed hereunder sha the executive judge for dis

the next in rank.

(h) In all cases, any deci Supreme Court. (i) Telegraphic appeals to are hereby allowed. It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,20 where the Court referred to it as a "contentneutral" regulation of the time, place, and manner of holding public assemblies.21 A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus: Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association.

xxx Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. The International Covenant on Civil and Political Rights Article 19. 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: 14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the

face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880. 15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
1avvphil.net

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the nonparticipants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. xxx Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are

subjected to heightened scrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas

Pambansa No. 880 is SUSTAINED. No costs. SO ORDERED.

FRANCISCO CHAVEZ, Petitioner,

G.R. No. 168338 Present:

- versus -

RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents.

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERRE CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO Promulgated: February 15, 2008

x------------------------------------------------------------------------------------x

DECISION
PUNO, C.J.: A. Precis In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a

year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wiretapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7] 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9] 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and

GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10] 5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they

claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said

companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their

owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free

expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same. C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13] Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress

the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18] D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such

a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information

of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media. E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the

freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.[24] Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.[27] In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for

the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. ABSTRACTION OF FREE SPEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held: At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33] Gonzales further explained that the vital need of a

constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. [35] Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40] The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the

clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.[43] The difference in treatment is expected because the relevant interests of

one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.[45] Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47] Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech

restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50] As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51] E.3. IN FOCUS: FREEDOM OF THE PRESS Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public

questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52] The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55] Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of contentbased (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form of permission to

be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60] or (2) a contentbased restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64] On the other hand, a governmental action that restricts freedom of speech or of the press based on

content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66] With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[68] The regulation which restricts the speech content must also serve an important or substantial government

interest, which is unrelated to the suppression of free expression. [69] Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72] Thus, when the prior restraint partakes of a contentneutral regulation, it is subjected to an intermediate review. A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74] Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are contentbased restrictions. The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time,

place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from

print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,[79] they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80] or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints. Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and

narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule[83] Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies

exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:[84]
xxx (3) xxx xxx

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among

qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to

cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand

a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as

unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85] In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less

liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89] This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political

advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author: The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible

sources of harm.[93] Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94] The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for

example, remains largely unregulated, yet the Internet and the broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98] F. The Case At Bar Having settled the applicable standard to contentbased restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts free dom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to

show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse

effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prose cuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency

that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by

respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED.