TELEBAP vs COMELEC Case Digest

Telecommunications And Broadcast Attorneys Of The Phils. Vs. COMELEC

289 SCRA 337
G.R. No. 132922
April 21, 1998
Facts: Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc.
(TELEBAP) is an organization of lawyers of radio and television broadcasting companies. It was
declared to be without legal standing to sue in this case as, among other reasons, it was not able
to show that it was to suffer from actual or threatened injury as a result of the subject law.
Petitioner GMA Network, on the other hand, had the requisite standing to bring the constitutional
challenge. Petitioner operates radio and television broadcast stations in the Philippinesaffected
by the enforcement of Section 92, B.P. No. 881.
Petitioners challenge the validity of Section 92, B.P. No. 881 which provides:
Comelec Time- The Commission shall procure radio and television time to be known as the
Comelec Time which shall be allocated equally and impartially among the candidates within
the area of coverage of all radio and television stations. For this purpose, the franchise of all
radio broadcasting and television stations are hereby amended so as to provide radio or television
time, free of charge, during the period of campaign.
Petitioner contends that while Section 90 of the same law requires COMELEC to procure print
space in newspapers and magazines with payment, Section 92 provides that air time shall be
procured by COMELEC free of charge. Thus it contends that Section 92 singles out radio and
television stations to provide free air time.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and 1995 senatorial election and that it
stands to suffer even more should it be required to do so again this year. Petitioners claim that
the primary source of revenue of the radio and television stations is the sale of air time to
advertisers and to require these stations to provide free air time is to authorize unjust taking of
private property. According to petitioners, in 1992 it lost P22,498,560.00 in providing free air
time for one hour each day and, in this years elections, it stands to lost P58,980,850.00 in view
of COMELECs requirement that it provide at least 30 minutes of prime time daily for such.
Issue:
Whether of not Section 92 of B.P. No. 881 denies radio and television broadcast companies the
equal protection of the laws.
Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due process of
law and without just compensation.

Held: Petitioners argument is without merit. All broadcasting, whether radio or by television
stations, is licensed by the government. Airwave frequencies have to be allocated as there are
more individuals who want to broadcast that there are frequencies to assign. Radio and television
broadcasting companies, which are given franchises, do not own the airwaves and frequencies
through which they transmit broadcast signals and images. They are merely given the temporary
privilege to use them. Thus, such exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. In granting the privilege to operate
broadcast stations and supervising radio and television stations, the state spends considerable
public funds in licensing and supervising them.
The argument that the subject law singles out radio and television stations to provide free air
time as against newspapers and magazines which require payment of just compensation for the
print space they may provide is likewise without merit. Regulation of the broadcast industry
requires spending of public funds which it does not do in the case of print media. To require the
broadcast industry to provide free air time for COMELEC is a fair exchange for what the
industry gets.
As radio and television broadcast stations do not own the airwaves, no private property is taken
by the requirement that they provide air time to the COMELEC.

ABS-CBN Broadcasting Corp v. COMELEC

ABS-CBN Broadcasting Corp v. COMELEC
January 28, 2000
FACTS:
COMELEC issued a Resolution approving the issuance of a restraining order to stop ABS
CBN or any other groups, its agents or representatives from conducting exit surveys. The
Resolution was issued by
the Comelec allegedly upon "information from a reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct radio-TV coverage of the elections and to
make an exit survey of the vote during the elections for national officials particularly for
President and Vice President, results of which shall be broadcasted immediately. The electoral
body believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that
it had not authorized or deputized ABS-CBN to undertake the exit survey.
Two days before the elections on May 11, 1998, the Court issued the Temporary
Restraining Order prayed for by petitioner ABS-CBN. The Comelec was directed to cease and
desist, until further orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by
media without any difficulty or problem.
ISSUE:
polls

W/N the Comelec, in the exercise of its powers, can absolutely ban exit

ABS-CBN:
The holding of exit polls and the nationwide reporting of their results are
valid exercises of the freedoms of speech and of the press
COMELEC:
1)The issuance thereof was "pursuant to its constitutional and statutory powers to promote a
clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and
maintain the secrecy and sanctity of the ballot."
2)It contends that "the conduct of exit surveys might unduly confuse and influence the voters,"
and that the surveys were designed "to condition the minds of people and cause confusion as to

who are the winners and the losers in the election," which in turn may result in "violence and
anarchy."
3)"exit surveys indirectly violate the constitutional principle to preserve the sanctity of the
ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2,
Article V of the Constitution and relevant provisions of the Omnibus Election Code. It submits
that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation
by the State in the legitimate exercise of its police power," such as in the present case.
4) "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to
the community or it has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not
be in harmony with the official count made by the Comelec x x x is ever present. In other words,
the exit poll has a clear and present danger of destroying the credibility and integrity of the
electoral process."
SUPREME COURT:
aside.

The COMELEC Resolution on exit polls ban is nullified and set

1) Clear and present danger of destroying the integrity of electoral processes

Speculative and Untenable. First, by the very nature of a survey, the interviewees or
participants are selected at random, so that the results will as much as possible be representative
or reflective of the general sentiment or view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the official Comelec count. It consists
merely of the opinion of the polling group as to who the electorate in general has probably voted
for, based on the limited data gathered from polled individuals. Finally, not at stake here are the
credibility and the integrity of the elections, which are exercises that are separate and
independent from the exit polls. The holding and the reporting of the results of exit polls cannot
undermine those of the elections, since the former is only part of the latter. If at all, the outcome
of one can only be indicative of the other.
2) Overbroad
The Comelec's concern with the possible noncommunicative effect of exit polls -disorder and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly,
the assailed Comelec Resolution is too broad, since its application is without qualification as to
whether the polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.[45] There is no showing, however, that exit polls or
the means to interview voters cause chaos in voting centers. Neither has any evidence been
presented proving that the presence of exit poll reporters near an election precinct tends to create
disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of
exit poll data and their use for any purpose. The valuable information and ideas that could be
derived from them, based on the voters' answers to the survey questions will forever remain
unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists

and the electorate in general would be deprived of studies on the impact of current events and of
election-day and other factors on voters' choices.
3) Violation of Ban Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and
the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the
ballots cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to
be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden
is the association of voters with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom
they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of
exit polls, without transgressing the fundamental rights of our people.##
An exit poll is a species of electoral survey conducted by qualified individuals or groups
of individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually through
the mass media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.
SWS vs Comelec
Facts:
Petitioner SWS and KPC states that it wishes to conduct an election survey throughout the period
of the elections and release to the media the results of such survey as well as publish them
directly. 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.
Issue:
Are the Comelec Resolutions prohibiting the holding of pre-polls and exit polls and the

dissemination of their results through mass media, valid and constitutional?

Ruling:
No. The Court held that Section (5)4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than suppression of freedom of expression.
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.

ANGEL BERNADETH A. ARGEL JD-1NEWSOUNDS BROADCASTING NETWORK

INC. and CONSOLIDATED BROADCASTING SYSTEM,INC., Petitioners, -versusHON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO,RACMA
FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents.G.R. Nos. 170270 &
179411, April 2, 2009
FACTS:
Petitioners are authorized by law to operate radio stations in Cauayan City, and had been doingso
for some years undisturbed by local authorities. Beginning in 2002, respondents in theirofficial
capacities impeded the ability of petitioners to freely broadcast, if not broadcast at all.These
actions have ranged from withholding permits to operate to the physical closure of thosestations.
Petitioner were required to submit requirements for the reclassification of the land wherein the
said stations are operating. Such requirements then as required were never listed in the list
of requirements in the renewal/application of any permit issued by Cauayan City. And notably,
petitioners had never been required to submit such papers before.
ISSUE:
Whether or not the right to free expression of the petitioners was violated by respondents bythe
closure of the station.
HELD:
Yes. The right to free expression of the petitioner was violated by the respondents. That the acts
imputed against respondents constitute a prior restraint on the freedom of expression of
respondents who happen to be members of the press is clear enough. The circumstances of this
case dictate that respondentsclosure of petitioners radio stations is clearly tainted with ill motives.
It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing the
widespread election irregularities in Isabela that appear to have favored respondent Dy and other
members of the Dy political dynasty. Bombo Radyo is a rival station of DWDY who is also
owned by the family DY. Also, in an article found in the PhilippineDaily inquirer dated February
2004, respondent Dy was quoted as saying that he will"disenfranchise the radio station." Such
statement manifests and confirms that respondents denial of petitioners renewal applications on
the ground that the Property is commercial is merely a pretext and that their real agenda is to
remove petitioners from Cauayan City and suppress the latters voice. Therefore the right to free
expression of the petitioners constitutional right to press freedom was blatantly violated by the
respondents.

G.R. Nos. 170270 & 179411 April 2, 2009

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED
BROADCASTING SYSTEM, INC., Petitioners,
vs.
HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA
FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents.
Facts:
Petitioners operate and run Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast
station, and Star FM DWIT Cauayan, an FM radio broadcast station, in Cauayan Citry, Isabela.
Back in 1996, Newsounds commenced relocation of its broadcasting station, management office,
and transmitters on propery located in Minante 2, Cauayan City, Isabela.
On July 1996, the Housing & Land Use Regulatory Board (HLURB) and Office of the Municipal
Planning and Development Coordinator (OMPDC) affirmed and certified that the commercial
structure to be constructed conformed to local zoning regulations, noting as well that the location
is classified as a commercial area. The radio station was able to fully operate smoothly
thereafter.
In 2002 however, when petitioners applied for a renewal of mayors permit, City Zoning
Administratior-Designate Bagnos Maximo refused to issue zoning clearance on the grounds that
petitioners were not able to submit conversion papers showing that the agricultural land was
converted to commercial land. Petitioners asked the court to compel the issuance of mayors
permit but the court denied the action. In the meantime, the Department of Agrarian Reform
(DAR) Region II office issued to petitioners a formal recognition of conversion of the property
from agricultural to commercial.
In 2003, petitioners again filed their application for renewal of mayors permit, attaching the
DAR Order. Respondent Felicisimo Meer, acting City Administrator of Cauayan City denied the
same, claiming that it was void on the grounds that they did not have record of the DAR Order.
The deadline lapsed on Febuary 15, 2004, and respondents Meer and Racma Fernandez-Garcia,
City Legal Officer of Cauayan City, closed the radio station. Due to the prvosion of Omnibus
Election Code which prohibits the closure of radio station during the pendency of election
period, COMELEC issued an order allowing the petitioners to operate before Febuary 17, 2004,
but was barred again by respondent Mayor Ceasar Dy on the grounds that the radio station had
no permit. Nonetheless, COMELEC allowed them to run again until June 10, 2004 after
elections.
Petitioners filed the case to the RTC and CA for the issuance of mayors permit but both courts
denied the petition.
A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits,
and suspend or revoke the same for any violation of the conditions upon which said licenses or
permits had been issued, pursuant to law or ordinance. In case of Cauayan City, the authority to
require a mayors permit was enacted through Ordinance No. 92-004, enacted in 1993. However,

nothing in the ordinance requires an application for a mayors permit to submit either an
approved land conversion papers from DAR, showing that its property was converted from prime
agricultural land or an approved resolution from the Sangguniang Bayan or Sangguniang
Panglungsod authorizing the reclassification of property from agricultural to commercial land.
In 1996, the HLURB issued a zoning decision that classified the property as commercial.
Petitioners are also armed with several certifications stating that the property is indeed a
commercial area. Also, petitioners paid real property taxes based on the classification of property
as commercial without objections raised by the respondents.
Petitioners argued that this consistent recognition by the local government of Cauayan of the
commercial character of the property constitutes estoppels against respondents from denying the
fact before the courts. The lower courts had ruled that the government of Cauayan City is not
bound by estoppels, but petitioners classified that this concept is understood to only refer to acts
and mistakes of its official especially to those which are irregular.
Issue:
Whether the lower court is correct in contending that the government of Cauayan City is not
bound by estoppels on the grounds that the state is immune against suits.
Held:
No. While it is true that the state cannot be put in estoppels by mistake or error of its officials or
agents, there is an exception.
Estoppels against the public are little favored. They should not be invoked except in rare and
unusual circumstances, and may not be invoked where they would operate to defeat the effective
operation of a policy adopted to protect the public. They must be applied with circumspection
and should be applied only in those special cases where the interests of justice clearly require it.
Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its
citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . .,
the doctrine of equitable estoppel may be invoked against public authorities as well as against
private individuals
Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the
government official whose acts are being disowned other than the bare assertion on the part of
the State, the Supreme Court have declined to apply State immunity from estoppel. Herein, there
is absolutely no evidence other than the bare assertions of the respondents that the Cauayan City
government had previously erred when it certified that the property had been zoned for
commercial use. The absence of any evidence other than bare assertions that the 1996 to 2001
certifications were incorrect lead to the ineluctable conclusion that respondents are estopped
from asserting that the previous recognition of the property as commercial was wrong.
Respondents were further estopped from disclaiming the previous consistent recognition by the
Cauayan City government that the property was commercially zoned unless they had evidence,
which they had none, that the local officials who issued such certifications acted irregularly in
doing so. It is thus evident that respondents had no valid cause at all to even require petitioners to
secure approved land conversion papers from the DAR showing that the property was converted
from prime agricultural land to commercial land.

Respondents closure of petitioners radio stations is clearly tainted with ill motvies. Petitioners
have been aggressive in exposing the widespread election irregularities in Isabela that appear to
have favored respondent Dy and his political dynasty. Such statement manifests and confirms
that respondents denial of the renewal applications on the ground that property is commercial
and merely a pretext, and their real agenda is to remove petitioners from Cauayan City and
suppress the latters voice. This is a blatant violation of constitutional right to press freedom.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and
the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE.
The instant petition for mandamus is hereby GRANTED and respondents are directed to
immediately issue petitioners zoning clearances and mayors permits for 2004 to petitioners.

Republic of the Philippines

Supreme Court
Manila

EN BANC

GOVERNMENT SERVICE
INSURANCE SYSTEM (GSIS) and
WINSTON F. GARCIA, in his
capacity as PRESIDENT and
GENERAL MANAGER
of the GSIS,
Petitioners,

G.R. No. 180291

Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,

- versus -

NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,

DINNAH VILLAVIZA,
ELIZABETH DUQUE,
ADRONICO A. ECHAVEZ,
RODEL RUBIO, ROWENA
THERESE B. GRACIA, PILAR
LAYCO, and ANTONIO JOSE
LEGARDA,
Respondents.

BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:
July 27, 2010

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

DECISION

MENDOZA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the August 31, 2007 Decision[1] of the Court of Appeals(CA), in CA-G.R.
SP No. 98952, dismissing the petition for certiorari of Government Service Insurance
System (GSIS) assailing the Civil Service Commissions Resolution No. 062177.
THE FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS,
filed separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico
A. Echavez, Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for
Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service pursuant to the
Rules of Procedure in Administrative Investigation (RPAI) of GSIS Employees and Officials, III,
D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on Administrative
Cases in the Civil Service (URACCS), in accordance with Book V of the Administrative Code of
1987, committed as follows:
That on 27 May 2005, respondent, wearing red shirt together with some
employees, marched to or appeared simultaneously at or just outside the office of

the Investigation Unit in a mass demonstration/rally of protest and support for

Messrs. Mario Molina and Albert Velasco, the latter having surreptitiously
entered the GSIS premises;
xxx

xxx

xxx

That some of these employees badmouthed the security guards and the
GSIS management and defiantly raised clenched fists led by Atty. Velasco who
was barred by Hearing Officer Marvin R. Gatpayat in an Order dated 24 May
2005 from appearing as counsel for Atty. Molina pursuant to Section 7 (b) (2) of
R.A. 6713 otherwise known as the Code of Conduct and Ethical Standards for
Public Officials and Employees;
That respondent, together with other employees in utter contempt of CSC
Resolution No. 021316, dated 11 October 2002, otherwise known as Omnibus
Rules on Prohibited Concerted Mass Actions in the Public Sector caused alarm
and heightened some employees and disrupted the work at the Investigation Unit
during office hours.[2]

This episode was earlier reported to PGM Garcia, through an office memorandum dated
May 31, 2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis
Nagtalon. On the same day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty.
Lutgardo Barbo, issued a memorandum to each of the seven (7) respondents requiring them to
explain in writing and under oath within three (3) days why they should not be administratively
dealt with.[3]
Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two
others, submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was a
planned mass action, the respondents explained that their act of going to the office of the GSISIU was a spontaneous reaction after learning that their former union president was there. Aside
from some of them wanting to show their support, they were interested in that hearing as it might
also affect them. For her part, respondent Villaviza submitted a separate letter explaining that
she had a scheduled pre-hearing at the GSIS-IU that day and that she had informed her
immediate supervisor about it, attaching a copy of the order of pre-hearing. These letters were
not under oath.[4]
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or
Conduct Prejudicial to the Best Interest of the Service against each of the respondents, all dated
June 4, 2005. Respondents were again directed to submit their written answers under oath within
three (3) days from receipt thereof.[5] None was filed.

On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all
seven (7) respondents guilty of the charges and meting out the penalty of one (1) year suspension
plus the accessory penalties appurtenant thereto.
On appeal, the Civil Service Commission (CSC) found the respondents guilty of the
lesser offense of Violation of Reasonable Office Rules and Regulations and reduced the penalty
to reprimand. The CSC ruled that respondents were not denied their right to due process but
there was no substantial evidence to hold them guilty of Conduct Prejudicial to the Best Interest
of the Service. Instead,
x x x. The actuation of the appellants in going to the IU, wearing red shirts,
to witness a public hearing cannot be considered as constitutive of such offense.
Appellants (respondents herein) assembly at the said office to express support to
Velasco, their Union President, who pledged to defend them against any
oppression by the GSIS management, can be considered as an exercise of their
freedom of expression, a constitutionally guaranteed right.[6] x x x
PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court
of Appeals via a Petition for Review under Rule 43 of the Rules on Civil Procedure. [7] The CA
upheld the CSC in this wise:
The Civil Service Commission is correct when it found that the act sought
to be punished hardly falls within the definition of a prohibited concerted activity
or mass action. The petitioners failed to prove that the supposed concerted activity
of the respondents resulted in work stoppage and caused prejudice to the public
service. Only about twenty (20) out of more than a hundred employees at the main
office, joined the activity sought to be punished. These employees, now
respondents in this case, were assigned at different offices of the petitioner
GSIS. Hence, despite the belated claim of the petitioners that the act complained
of had created substantial disturbance inside the petitioner GSIS premises during
office hours, there is nothing in the record that could support the claim that the
operational capacity of petitioner GSIS was affected or reduced to substantial
percentage when respondents gathered at the Investigation Unit. Despite the hazy
claim of the petitioners that the gathering was intended to force the Investigation
Unit and petitioner GSIS to be lenient in the handling of Atty. Molinas case and
allow Atty. Velasco to represent Atty. Molina in his administrative case before
petitioner GSIS, there is likewise no concrete and convincing evidence to prove
that the gathering was made to demand or force concessions, economic or
otherwise from the GSIS management or from the government. In fact, in the
separate formal charges filed against the respondents, petitioners clearly alleged
that respondents marched to or appeared simultaneously at or just outside the

office of the Investigation Unit in a mass demonstration/rally of protest and

support for Mssrs. Mario Molina and Albert Velasco, the latter surreptitiously
entered the GSIS premises. Thus, petitioners are aware at the outset that the only
apparent intention of the respondents in going to the IU was to show support to
Atty. Mario Molina and Albert Velasco, their union officers. The belated assertion
that the intention of the respondents in going to the IU was to disrupt the operation
and pressure the GSIS administration to be lenient with Atty. Mario Molina and
Albert Velasco, is only an afterthought.[8]
Not in conformity, PGM Garcia is now before us via this Petition for Review presenting
the following:
STATEMENT OF THE ISSUES
I
WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY
SUPPLETORILY THE PROVISIONS OF THE RULES OF COURT ON
THE EFFECT OF FAILURE TO DENY THE ALLEGATIONS IN THE
COMPLAINT AND FAILURE TO FILE ANSWER, WHERE THE
RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT
FILE ANY RESPONSIVE PLEADING TO THE FORMAL CHARGES
AGAINST THEM.

II
WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS
CANNOT BE EQUATED WITH DUE PROCESS IN JUDICIAL SENSE
AUTHORIZES AN ADMINISTRATIVE TRIBUNAL TO CONSIDER IN
EVIDENCE AND GIVE FULL PROBATIVE VALUE TO UNNOTARIZED
LETTERS THAT DID NOT FORM PART OF THE CASE RECORD.
III
WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS
BASED ON EVIDENCE ON RECORD BUT MAKES A CONCLUSION OF
LAW BASED ON THE ALLEGATIONS OF A DOCUMENT THAT NEVER
FORMED PART OF THE CASE RECORDS IS VALID.
IV
WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE
OPERATIONAL CAPACITY OF AN AGENCY, DUE TO UNRULY MASS

GATHERING OF GOVERNMENT EMPLOYEES INSIDE OFFICE

PREMISES AND WITHIN OFFICE HOURS, IS REQUIRED TO HOLD
THE SAID EMPLOYEES LIABLE FOR CONDUCT PREJUDICIAL TO
THE BEST INTEREST OF THE SERVICE PURSUANT TO CSC
RESOLUTION NO. 021316.
V
WHETHER AN UNRULY MASS GATHERING OF TWENTY
EMPLOYEES, LASTING FOR MORE THAN AN HOUR DURING
OFFICE HOURS, INSIDE OFFICE PREMISES AND WITHIN A UNIT
TASKED TO HEAR AN ADMINISTRATIVE CASE, TO PROTEST THE
PROHIBITION AGAINST THE APPEARANCE OF THEIR LEADER AS
COUNSEL IN THE SAID ADMINISTRATIVE CASE, FALLS WITHIN
THE PURVIEW OF THE CONSTITUTIONAL GUARANTEE TO
FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY.
VI
WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF
THEIR POSTS FOR MORE THAN AN HOUR TO HOLD AN UNRULY
PROTEST INSIDE OFFICE PREMISES ONLY CONSTITUTES THE
ADMINISTRATIVE OFFENSE OF VIOLATION OF REASONABLE
OFFICE RULES AND REGULATIONS.[9]
The Court finds no merit in the petition.
Petitioners primarily question the probative value accorded to respondents letters of
explanation in response to the memorandum of the GSIS-IU Manager. The respondents never
filed their answers to the formal charges. The petitioners argue that there being no answers, the
allegations in the formal charges that they filed should have been deemed admitted pursuant to
Section 11, Rule 8 of the Rules of Court which provides:
SECTION 11. Allegations not specifically denied deemed admitted.
Material averment in the complaint, other than those as to the amount of liquidated
damages, shall be deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed admitted if not denied
specifically and under oath.
According to the petitioners, this rule is applicable to the case at bench pursuant to Rule
1, Section 4 of the Rules of Court which reads:
SECTION 4. In what cases not applicable. These Rules shall not apply
to election cases, land registration, cadastral, naturalization and insolvency

proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient. (underscoring
supplied)
The Court does not subscribe to the argument of the petitioners. Petitioners own rules,
Rule XI, Section 4 of the GSIS Amended Policy and Procedural Guidelines No. 178-04,
specifically provides:
If the respondent fails to file his Answer within five (5) working days from
receipt of the Formal Charge for the supporting evidence, when requested, he shall
be considered to have waived his right to file an answer and the PGM or the Board
of Trustees, in proper cases, shall render judgment, as may be warranted by the
facts and evidence submitted by the prosecution.

A perusal of said section readily discloses that the failure of a respondent to file an
answer merely translates to a waiver of his right to file an answer. There is nothing in the rule
that says that the charges are deemed admitted. It has not done away with the burden of the
complainant to prove the charges with clear and convincing evidence.
It is true that Section 4 of the Rules of Court provides that the rules can be applied in a
suppletory character. Suppletory is defined as supplying deficiencies. [10] It means that the
provisions in the Rules of Court will be made to apply only where there is an insufficiency in the
applicable rule. There is, however, no such deficiency as the rules of the GSIS are explicit in
case of failure to file the required answer. What is clearly stated there is that GSIS may render
judgment as may be warranted by the facts and evidence submitted by the prosecution.
Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case,
petitioners must remember that there remain averments that are not deemed admitted by the
failure to deny the same. Among them are immaterial allegations and incorrect conclusions
drawn from facts set out in the complaint. [11] Thus, even if respondents failed to file their answer,
it does not mean that all averments found in the complaint will be considered as true and correct
in their entirety, and that the forthcoming decision will be rendered in favor of the
petitioners. We must not forget that even in administrative proceedings, it is still the
complainant, or in this case the petitioners, who have the burden of proving, with substantial
evidence, the allegations in the complaint or in the formal charges.[12]
A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved
against petitioners based, not on the absence of respondents evidence, but on the weakness of
that of the petitioners. Thus, the CA wrote:

Petitioners correctly submitted the administrative cases for resolution

without the respondents respective answer to the separate formal charges in
accordance with Section 4, Rule XI of the RPAI. Being in full control of the
administrative proceeding and having effectively prevented respondents from
further submitting their responsive answer and evidence for the defense,
petitioners were in the most advantageous position to prove the merit of their
allegations in the formal charges. When petitioner Winston Garcia issued those
similarly worded decisions in the administrative cases against the respondents, it
is presumed that all evidence in their favor were duly submitted and justly
considered independent of the weakness of respondents evidence in view of the
principle that the burden of proof belongs to the one who alleges and not the one
who denies.[13]

On the merits, what needs to be resolved in the case at bench is the question of whether
or not there was a violation of Section 5 of CSC Resolution No. 02-1316. Stated differently,
whether or not respondents actions on May 27, 2005 amounted to a prohibited concerted
activity or mass action. Pertinently, the said provision states:
Section 5. As used in this Omnibus Rules, the phrase prohibited
concerted activity or mass action shall be understood to refer to any collective
activity undertaken by government employees, by themselves or through their
employees organizations, with intent of effecting work stoppage or service
disruption in order to realize their demands of force concession, economic or
otherwise, from their respective agencies or the government. It shall include
mass leaves, walkouts, pickets and acts of similar nature. (underscoring supplied)
In this case, CSC found that the acts of respondents in going to the GSIS-IU office
wearing red shirts to witness a public hearing do not amount to a concerted activity or mass
action proscribed above. CSC even added that their actuations can be deemed an exercise of
their constitutional right to freedom of expression. The CA found no cogent reason to deviate
therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the
political rights of those in the government service, the concerted activity or mass action
proscribed must be coupled with the intent of effecting work stoppage or service disruption in
order to realize their demands of force concession. Wearing similarly colored shirts, attending a
public hearing at the GSIS-IU office, bringing with them recording gadgets, clenching their fists,
some even badmouthing the guards and PGM Garcia, are acts not constitutive of an (i) intent to

effect work stoppage or service disruption and (ii) for the purpose of realizing their demands of
force concession.
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 021316 are there to temper and focus the application of such prohibition. Not all collective activity
or mass undertaking of government employees is prohibited. Otherwise, we would be totally
depriving our brothers and sisters in the government service of their constitutional right to
freedom of expression.
Government workers, whatever their ranks, have as much right as any person in the land
to voice out their protests against what they believe to be a violation of their rights and
interests. Civil Service does not deprive them of their freedom of expression. It would be unfair
to hold that by joining the government service, the members thereof have renounced or waived
this basic liberty. This freedom can be reasonably regulated only but can never be taken away.
A review of PGM Garcias formal charges against the respondents reveals that he himself
was not even certain whether the respondents and the rest of the twenty or so GSIS employees
who were at the GSIS-IU office that fateful day marched there or just simply appeared there
simultaneously.[14] Thus, the petitioners were not even sure if the spontaneous act of each of the
twenty or so GSIS employees on May 27, 2005 was a concerted one. The report of Manager
Nagtalon of the GSIS-SD which was the basis for PGM Garcias formal charges reflected such
uncertainty. Thus,
Of these red shirt protesters, only Mr. Molina has official business at the
Investigation Unit during this time. The rest abandoned their post and duties for
the duration of this incident which lasted until 10:55 A.M. It was also observed
that the protesters, some of whom raised their clenched left fists, carefully planned
this illegal action as evident in their behavior of arrogance, defiance and
provocation, the presence of various recording gadgets such as VCRs, voice
recorders and digital cameras, the bad mouthing of the security guards and the
PGM, the uniformity in their attire and the collusion regarding the anomalous
entry of Mr. Albert Velasco to the premises as reported earlier.[15]
The said report of Nagtalon contained only bare facts. It did not show respondents
unified intent to effect disruption or stoppage in their work. It also failed to show that their
purpose was to demand a force concession.
In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS,[16] the Court
upheld the position of petitioner GSIS because its employees, numbering between 300 and 800

each day, staged a walkout and participated in a mass protest or demonstration outside the GSIS
for four straight days. We cannot say the same for the 20 or so employees in this case. To equate
their wearing of red shirts and going to the GSIS-IU office for just over an hour with that fourday mass action in Kapisanan ng mga Manggagawa sa GSIS case and to punish them in the
same manner would most certainly be unfair and unjust.
Recent analogous decisions in the United States, while recognizing the governments
right as an employer to lay down certain standards of conduct, tend to lean towards a broad
definition of public concern speech which is protected by their First Amendment. One such
case is that of Scott v. Meters.[17] In said case, the New York Transit Authority (NYTA),
responsible for operation of New York Citys mass transit service, issued a rule prohibiting
employees from wearing badges or buttons on their uniforms. A number of union members wore
union buttons promoting their opposition to a collective bargaining agreement. Consequently,
the NYTA tried to enforce its rule and threatened to subject these union members to
discipline. The court, though recognizing the governments right to impose reasonable
restrictions, held that the NYTAs rule was unconstitutionally overboard.

[18]

In another case, Communication Workers of America v. Ector County Hospital District,

it was held that,
A county hospital employees wearing of a Union Yes lapel pin during a
union organization drive constituted speech on a matter of public concern, and the
countys proffered interest in enforcing the anti-adornment provision of its dress
code was outweighed by the employees interest in exercising his First
Amendment speech and associational rights by wearing a pro-union lapel button.
[19]

Thus, respondents freedom of speech and of expression remains intact, and CSCs
Resolution No. 02-1316 defining what a prohibited concerted activity or mass action has only
tempered or regulated these rights. Measured against that definition, respondents actuations did
not amount to a prohibited concerted activity or mass action. The CSC and the CA were both
correct in arriving at said conclusion.
WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well
as its October 16, 2007 Resolution in CA G.R. SP No. 98952 are herebyAFFIRMED.
SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

G.R. No. 164

SECOND DIVISION

HECTOR C. VILLANUEVA,

G.R. No. 164437

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus -

CARPIO,*
CORONA,*
PHILIPPINE
DAILY
INQUIRER, INC.,
LETTY JIMENEZ MAGSANOC,ROSAURO
G. ACOSTA, JOSE MARIA NOLASCO,
ARTEMIO T. ENGRACIA, JR., RAFAEL
CHEEKEE, and MANILA DAILY BULLETIN
PUBLISHING CORPORATION, NAPOLEON
G. RAMA, BEN F. RODRIGUEZ, ARTHUR S.
SALES, CRIS J. ICBAN, JR.,

CARPIO MORALES, and

VELASCO, JR., JJ.

Respondents.
Promulgated:

May 15, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:

This petition for review on certiorari assails the Amended Decision [1] dated May 25,
2004 of the Court of Appeals in CA-G.R. CV No. 54134, reversing the Decision [2] of the

Regional Trial Court (RTC) of Negros Oriental, Dumaguete City, Branch 44 in Civil Case No.
206-B, which had awarded damages to petitioner for respondents false reporting.
The basic facts in this case are uncomplicated.
Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the May
11, 1992 elections.
On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the
disqualification of petitioner from running in the elections. Said petition, however, was denied
by the COMELEC.[3]
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin
Publishing Corporation (Manila Bulletin) published the following story:
The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD
candidate for mayor of Bais City for having been convicted in three
administrative cases for grave abuse of authority and harassment in 1987, while
he was officer-in-charge of the mayors office of Bais City.[4] [Emphasis and
underscoring supplied.]

A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc.
(PDI) also came out with a similar story, to wit:
The Commission on Elections disqualified Hector G. Villanueva as
Lakas-NUCD candidate for mayor of Bais City for having been convicted in
three administrative cases for grave abuse of authority and harassment in
1987, while he was the officer-in-charge of the mayors office in the city.
The Comelec upheld the recommendation of the Comelec office
in Bais City, stressing that Villanuevas conviction in the administrative cases
barred him from seeking any elective office.
The Comelec cited Section 40 of the Local Government Code of 1991,
which provides that among those who are disqualified from running for any
elective position are those removed from office as a result of an administrative
case.

Villanueva was appointed Bais City OIC on April 18, 1986 by then Local
Government Minister Aquilino Pimentel. Sometime during the same year, three
administrative cases were instituted against Villanueva before the Department of
Local Government upon complaint of Rebecco V. Fernandez and Dr. Harte C.
Fuentes.
Sometime in May 1987, the ministry found Villanueva guilty as charged
and ordered him removed from his position as OIC of the city government, which
decision was approved by Minister Jaime Ferrer.
In the same month, Francisco G. Villanueva was appointed OIC Mayor to
replace Hector Villanueva who had been removed from office.
The poll body also stated that insofar as the penalty of the removal is
concerned, this cannot be reversed anymore, and consequently cannot be the
subject matter of an appeal.
The indefinite term as OIC to which respondent was appointed in 1986
already lapsed, with the holding of the 1988 local elections and the assumption of
office of those elected therein.[5] [Emphasis and underscoring supplied.]

On May 11, 1992, the national and local elections were held as scheduled. When results
came out, it turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories,
petitioner sued respondents PDI and Manila Bulletin as well as their publishers and editors for
damages before the RTC of Bais City. He alleged that the articles were maliciously timed to
defeat him. He claimed he should have won by landslide, but his supporters reportedly believed
the news items distributed by his rivals and voted for other candidates. He asked for actual
damages of P270,000 for the amount he spent for the campaign, moral damages of P10,000,000,
an unspecified amount of exemplary damages, attorneys fees of P300,000 and costs of suit.[6]
Respondents disclaimed liability. They asserted that no malice can be attributed to them
as they did not know petitioner and had no interest in the outcome of the election, stressing that
the stories were privileged in nature.[7]
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a
COMELEC commissioners press briefing. He, however, came in late and only a fellow reporter

told him that the disqualification case against petitioner was granted. He did not bother to get a
confirmation from anyone as he had a deadline to beat.[8]
PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story
from a press release. He claimed that he found the press release on his desk the day Manila
Bulletin published the same story. The press release bore COMELECs letterhead and was
signed by one Sonia Dimasupil, a former Malaya newspaper editor who was in-charge of
COMELEC press releases. He tried to contact her but she was out of the office. Since the news
item was also published in the Manila Bulletin, he felt confident the press release was
authentic. He however failed to produce the press release in court.[9]
On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:
WHEREFORE FOREGOING CONSIDERED, this Court holds that
defendants Philippine Daily Inquirer, [Inc.] and Manila [Daily] Bulletin
Publishing Corporation with their respective officers are liable [for] damages to
plaintiff in the following manner:
1.
As moral damages, the Philippine Daily Inquirer, [Inc.] and
the Manila [Daily] Bulletin Publishing Corporation are ordered to
pay P1,000,000.00 each to plaintiff;
2.
Both defendants are likewise ordered to pay an exemplary
damage in the amount of P500,000.00 each;
3.
of P100,000.00;
4.

To

pay

plaintiffs

attorneys

fees

in

the

amount

And to pay the costs.

SO ORDERED.[10]

The trial court found the news items derogatory and injurious to petitioners reputation
and candidacy. It faulted respondents for failing to verify the truth of the news tips they
published and held respondents liable for negligence, citing Policarpio v. Manila Times Pub.
Co., Inc.[11] The trial court also ruled that because the news items lacked truth and fairness, they
were not privileged communications.

On appeal by respondents, the Court of Appeals dismissed the complaint. It explained

that although the stories were false and not privileged, as there is no proof they were obtained
from a press conference or release, respondents were not impelled by malice or improper
motive. There was also no proof that petitioners supporters junked him due to the
reports. Neither was there any proof he would win, making his action unfounded.
Before us, petitioner raises the lone issue of whether:
[THE] HONORABLE APPELLATE COURT COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO UTTER LACK OF JURISDICTION
WHEN IT UNILATERALLY, UNPROCEDURALLY AND ARBITRARILY
CHANGED THE PLEADING-BORNE AND PRE-TRIAL ORDER
DELINEATED THEORY OF QUASI-DELICT OF APPELLEE, THEREBY
DISMISSING THE CASE FOR FAILURE TO EVIDENCE AN ESSENTIAL
REQUISITE OF ITS IMPOSED IRRELEVANT THEORY.[12]

Simply stated, we are asked to resolve the issue of whether petitioner is required to prove
malice to be entitled to damages.
Petitioner argues that his cause of action is based on quasi-delict which only requires
proof of fault or negligence, not proof of malice beyond reasonable doubt as required in a
criminal prosecution for libel. He argues that the case is entirely different and separate from an
independent civil action arising from libel under Article 100[13] of the Revised Penal Code. He
claims he proffered proofs sustaining his claim for damages under quasi-delict, not under the law
on libel, as malice is hard to prove. He stresses that nowhere in the complaint did he mention
libel, and nothing in his complaint shows that his cause of action had some shade of libel as
defined in the Revised Penal Code. He also did not hint a resort to a criminal proceeding for
libel.[14]
PDI and its officers argue that petitioners complaint clearly lays a cause of action arising
from libel as it highlights malice underlying the publications. And as malice is an element of
libel, the appellate court committed no error in characterizing the case as one arising from libel.
[15]

For their part, Manila Bulletin and its officers claim that petitioner changed his theory,
which must be disallowed as it violates respondents right to due process. Although petitioners

claim for damages before the trial court hinged on the erroneous publications, which he alleged
were maliciously timed, he claims in his petition before this Court that his cause of action is
actually one for quasi-delict or tort. They stress that the prayer and allegations in petitioners
complaint, which never alleged quasi-delict or tort but malicious publication as basis for the
claim for damages, control his case theory. Thus, it may not be altered unless there was an
amendment of the complaint to change the cause of action. They claim that petitioners
initiatory pleading and the trial courts pre-trial order and decision reveal that his cause of action
for damages arose from the publications of the malicious articles; hence, he should have
proved actual malice to be entitled to any award of damages. They added that the appellate court
correctly ruled that the articles were not published with actual malice.[16]
We rule in favor of the respondents.
Basic is the rule that what determines the nature of an action as well as which court has
jurisdiction over it are the allegations of the complaint and the character of the relief sought. [17] The
nature of a pleading is determined by allegations therein made in good faith, the stage of the
proceeding at which it is filed, and the primary objective of the party filing the same. The
ground chosen or the rationale adopted by the court in resolving the case does not determine or
change the real nature thereof.
The complaint was denominated as one for damages, and a perusal of its content
reveals that the factual allegations constituted a complaint for damages based on malicious
publication. It specifically pointed out that petitioner lost the election because of the bad
publicity created by the malicious publication of respondents PDI and Manila Bulletin. It is
alleged numerous times that the action for damages stemmed from respondents malicious
publication. Petitioner sought that respondents be declared guilty of irresponsible and malicious
publication and be made liable for damages. The fact that petitioner later on changed his theory
to quasi-delict does not change the nature of petitioners complaint and convert petitioners
action into quasi-delict. The complaint remains to be one for damages based on malicious
publication.
Consequently, as the issue of malice was raised, it was incumbent on petitioner to
prove the same. The basic rule is that mere allegation is not evidence, and is not equivalent to
proof.[18] As correctly stated by the Court of Appeals, while the questioned news item was
found to be untrue, this does not necessarily render the same malicious.

To fully appreciate the import of the complaint alleging malice and damages, we must
recall the essence of libel.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the memory
of one who is dead.[19] Any of these imputations is defamatory and under the general rule stated
in Article 354 of the Revised Penal Code, every defamatory imputation is presumed to be
malicious.[20] The presumption of malice, however, does not exist in the following instances:
1.
A private communication made by any person to another in the
performance of any legal, moral, or social duty; and
2.
A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative, or other official proceedings which are not
of confidential nature, or of any statement, report, or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.[21]
We note that the publications or articles in question are neither private communications
nor true reports of official proceedings without any comments or remarks. However, this does
not necessarily mean that the questioned articles are not privileged. The enumeration under
Art. 354 is not an exclusive list of qualified privileged communications since fair
commentaries on matters of public interest are likewise privileged and constitute a valid
defense in an action for libel or slander.[22] The rule on privileged communication had its
genesis not in the nations penal code but in the Bill of Rights of the Constitution guaranteeing
freedom of speech and of the press. As early as 1918, in United States v. Caete,[23] this Court
ruled that publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech.[24]
In the instant case, there is no denying that the questioned articles dealt with matters of
public interest. These are matters about which the public has the right to be informed, taking
into account the very public character of the election itself. For this reason, they attracted media
mileage and drew public attention not only to the election itself but to the candidates. As one of
the candidates, petitioner consequently assumed the status of a public figure within the purview
of Ayers Productions Pty. Ltd. v. Capulong.[25]

But even assuming a person would not qualify as a public figure, it would not necessarily
follow that he could not validly be the subject of a public comment. For he could; for instance, if
and when he would be involved in a public issue. If a matter is a subject of public or general
interest, it cannot suddenly become less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose to become involved. The
publics primary interest is in the event; the public focus is on the conduct of the
participant and the content, effect and significance of the conduct, not the participants
prior anonymity or notoriety.[26]
In any event, having been OIC-Mayor of Bais City after the People Power Revolution,
petitioner in this case as early as 1992 was already a well-known official and public figure.
However, it must be stressed that the fact that a communication or publication is
privileged does not mean that it is not actionable; the privileged character simply does away with
the presumption of malice, which the plaintiff has to prove in such a case. [27] That proof in a civil
case must of course be based on preponderance of evidence. This, however, petitioner failed to
do in this case.
Under the current state of our jurisprudence, to be considered malicious, the libelous
statement must be shown to have been written or published with the knowledge that they are
false or in reckless disregard of whether they are false or not. Reckless disregard of what is
false or not means that the author or publisher entertains serious doubt as to the truth of the
publication, or that he possesses a high degree of awareness of their probable falsity.[28]
In the instant case, we find no conclusive showing that the published articles in question
were written with knowledge that these were false or in reckless disregard of what was false or
not. According to Manila Bulletin reporter Edgardo T. Suarez, he got the story from a fellow
reporter who told him that the disqualification case against petitioner was granted. PDI, on the
other hand, said that they got the story from a press release the very same day the Manila
Bulletin published the same story. PDI claims that the press release bore COMELECs
letterhead, signed by one Sonia Dimasupil, who was in-charge of COMELEC press
releases. They also tried to contact her but she was out of the office. Since the news item was
already published in the Manila Bulletin, they felt confident the press release was
authentic. Following the narration of events narrated by respondents, it cannot be said that the
publications, were published with reckless disregard of what is false or not.

Nevertheless, even assuming that the contents of the articles turned out to be false, mere
error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room for misstatement
of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy.[29]
A newspaper, especially one national in reach and coverage, should be free to report on
events and developments in which the public has a legitimate interest with minimum fear of
being hauled to court by one group or another on criminal or civil charges for malice or
damages, i.e. libel, so long as the newspaper respects and keeps within the standards of morality
and civility prevailing within the general community.[30]
Likewise, in our view respondents failure to counter-check their report or present their
informant should not be a reason to hold them liable. While substantiation of the facts supplied
is an important reporting standard, still, a reporter may rely on information given by a lone
source although it
reflects only one side of the story provided the reporter does not entertain a high degree of
awareness of [its] probable falsity.[31] Petitioner, in this case, presented no proof that
respondents entertained such awareness. Failure to present respondents informant before the
court should not be taken against them.[32]
Worth stressing, jurisprudence instructs us that a privileged communication should not be
subjected to microscopic examination to discover grounds for 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.[33]
Further, worthy of note, before the filing of the complaint, respondents herein received
no word of protest, exception or objection from petitioner. Had the error in the news reports in
question been pointed out by interested parties to the respondents, their publishers and editors
could have promptly made a rectification through print and broadcast media just before and
during the election day deflecting thereby any prejudice to petitioners political or personal
interest.

As aptly observed in Quisumbing v. Lopez, et al.:[34]

Every citizen of course has the right to enjoy a good name and
reputation, but we do not consider that the respondents, under the
circumstances of this case, had violated said right or abused the freedom of the
press. The newspapers should be given such leeway and tolerance as to
enable them to courageously and effectively perform their important role
in our democracy. In the preparation of stories, press reporters and edition
usually have to race with their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a point of
suppression, for honest mistakes or imperfection in the choice of words.
[35]
[Emphasis supplied.]

We find respondents entitled to the protection of the rules concerning qualified privilege,
growing out of constitutional guaranties in our Bill of Rights. We cannot punish journalists
including publishers for an honest endeavor to serve the public when moved by a sense of civic
duty and prodded by their sense of responsibility as news media to report what they perceived to
be a genuine report.
Media men are always reminded of their responsibilities as such. This time, there is also
a need to remind public figures of the consequences of being one. Fittingly, as held in Time, Inc.
v. Hill,[36] one of the costs associated with participation in public affairs is an attendant loss of
privacy.
Exposure of the self to others in varying degrees is a concomitant of life in
a civilized community. The risk of this exposure is an essential incident of life in a
society which places a primary value on freedom of speech and of press.
Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.[37]

On petitioners claim for damages, we find no evidence to support their award. Indeed, it
cannot be said that respondents published the questioned articles for the sole purpose of
harassing petitioner. Proof and motive that the publication was prompted by a sinister design to
vex and humiliate petitioner has not been clearly and preponderantly established to entitle the
petitioner to damages. There remains unfulfilled the need to prove that the publications were

made with actual malice that is, with the knowledge of the publications falsity or with reckless
disregard of whether they were false or not.[38]
Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:
For liability to arise then without offending press freedom, there is this test
to meet: "The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made with
actual malice that is, with knowledge that it was false or with reckless
disregard of whether it was false or not." The United States Supreme Court
went further in Curtis Publishing Co. v. Butts,[39] where such immunity, was
held as covering statements concerning public figures regardless of whether
or not they are government officials. Why there should be such an extension
is understandable in the light of the broad scope enjoyed by press freedom
which certainly allows a full and free discussion of public issues. What can be
more logical and appropriate, then, than such an expansion of the principle. As
noted by a commentator: Since discussion of public issues cannot be
meaningful without reference to the men involved on both sides of such
issues, and since such men will not necessarily be public officials, one cannot
but agree that the Court was right in Curtis to extend the Times[40] rule to all
public figures.[41] [Emphasis supplied.]

Furthermore, the guarantee of press freedom has also come to ensure that claims for
damages arising from the utilization of the freedom be not unreasonable or exorbitant as to
practically cause a chilling effect on the exercise thereof. Damages, in our view, could not
simply arise from an inaccurate or false statement without irrefutable proof of actual malice as
element of the assailed publication.
WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of
Appeals in CA-G.R. CV No. 54134 is AFFIRMED.
SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

SORIANO VS LA GUARDIAG.R. No. 164785, April 29, 2009

FACTSThe Minister of INC felt directly alluded by an offending remark made by Soriano in one
of his episodein his regular program aired on UNTV 37, Ang Dating Daan. This ensued 8
private complainants whoare members of INC to file an affidavit-complaint against herein
petition (Soriano) before the MTRCB.Forthwith, the MTRCB sent petitioner a notice of the
hearing in relation to the alleged use of some cusswords in the said episode. After a preliminary
conference in which petitioner appeared, the
MTRCBo r d e r e d p r e v e n t i v e s u s p e n s i o n o f h i s p r o g r a m f o r 2 0 d a ys , i n a c c o r d
a n c e w i t h S e c t i o n 3 ( d ) o f Presidential Decree No. (PD) 1986, creating the MTRCB, in
relation to Sec. 3, Chapter XIII of the 2004Implementing Rules and Regulations (IRR) of
PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. The petitioner
sought reconsideration of the preventive suspension order, praying that Laguardia and
two other members of the adjudication board recuse themselves from hearing the case,but
withdrew the same two days after, and, instead filed with the SC of a petition for
certiorari andprohibition to nullify the preventive suspension order thus issued. Meanwhile,
in the administrative case filed against the respondent with the MTRCB, it was held that
therespondent is liable for his utterances and thereby imposing on him a penalty of
three (3) monthssuspension from said program. He then filed petition for certiorari
and prohibition with prayer for injunctive relief on the ground that the preventive

suspension imposed against him and the relevant IRRprovision authorizing it are invalid
inasmuch as PD 1986 does not expressly authorize the MTRCB toissue preventive
suspension.ISSUE:WHETHER OR NOT THE MTRCB IS ENTITLED TO ISSUE PREVENTIVE
SUSPENSIONRULINGYES. Administrative agencies have powers and functions which may be
administrative, investigatory,r e g u l a t o r y, q u a s i - l e g i s l a t i v e , o r q u a s i j u d i c i a l , o r a m i x o f t h e f i v e , a s m a y b e c o n f e r r e d b y t h e Constitution or by
statute. They have in fine only such powers or authority as are granted or delegated,expressly or
impliedly, by law. And in determining whether an agency has certain powers, the inquiryshould
be from the law itself. But once ascertained as existing, the authority given should be
liberallyconstrued. The issuance of a preventive suspension comes well within the scope of the
MTRCBs authority andfunctions expressly set forth in PD 1986, more particularly
under its Sec. 3(d), which empowers theMTRCB to supervise, regulate, and grant,
deny or cancel, permits for the x x x exhibition, and/or television broadcast of all
motion pictures, television programs and publicity materials, to the end thatno such pictures,
programs and materials as are determined by the BOARD to be objectionable
inaccordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast
by television. T h e p o w e r t o i s s u e p r e v e n t i v e s u s p e n s i o n f o r m s p a r t o f t h e M T
R C B s e x p r e s s r e g u l a t o r y a n d supervisory statutory mandate and its investigatory and
disciplinary authority subsumed in or impliedfrom such mandate. Any other construal
would render its power to regulate, supervise, or discipline illusory.
Preventive suspension is not a penalty by itself, but merely a preliminary step
in anadministrative investigation
. And the power to discipline and impose penalties, if granted, carries
withit the power to investigate administrative complaints and, during such investigat
ion, to preventivelysuspend the person subject of the complaint. The mere absence of a provision on
preventive suspension in PD 1986 would not work to deprive theMTRCB a basic disciplinary
tool, such as preventive suspension. It is expressly empowered by statuteto regulate and
supervise television programs to obviate the exhibition or broadcast of, among others,indecent or
immoral materials and to impose sanctions for violations and, corollarily, to prevent
further violations as it investigates.Contrary to petitioners assertion, the aforequoted
Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law.
Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its
authority under the law. The preventive suspension was actually done
infurtherance of the law, imposed pursuant to the MTRCBs duty
of regulating or supervisingt e l e v i s i o n p r o g r a m s , p e n d i n g a d e t e r m i n a t i o n
o f w h e t h e r o r n o t t h e r e h a s a c t u a l l y b e e n a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986
bestowed, albeit impliedly, on MTRCB

EN BANC

SOUTHERN
HEMISPHERE G.R. No. 178552
ENGAGEMENT
NETWORK,
INC., on behalf of the South-South
Network (SSN) for Non-State
Armed Group Engagement, and Present:
ATTY. SOLIMAN M. SANTOS,
JR.,
Petitioners,

CORONA, C.J.,
CARPIO,
CARPIO MORALES,

- versus -

VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,

ANTI-TERRORISM
COUNCIL,
THE EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE,
THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF
NATIONAL
DEFENSE,
THE
SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT,

BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,

THE SECRETARY OF FINANCE,

THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF
OF THE ARMED FORCES OF
THE PHILIPPINES, AND THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE,

VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Respondents.

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

KILUSANG MAYO UNO (KMU),

represented by its Chairperson
Elmer
Labog,
NATIONAL
FEDERATION
OF
LABOR
UNIONS-KILUSANG MAYO UNO
(NAFLU-KMU), represented by its
National President Joselito V.
Ustarez and Secretary General
Antonio C. Pascual, and CENTER
FOR TRADE UNION AND
HUMAN RIGHTS, represented by Promulgated:
its Executive Director Daisy Arago,
Petitioners,
October 5, 2010

- versus G.R. No. 178554

HON. EDUARDO ERMITA, in his

capacity as Executive Secretary,
NORBERTO GONZALES, in his
capacity as Acting Secretary of

National Defense, HON. RAUL

GONZALES, in his capacity as
Secretary
of
Justice,
HON.
RONALDO PUNO, in his capacity
as Secretary of the Interior and
Local
Government,
GEN.
HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as
PNP Chief of Staff,
Respondents.

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

BAGONG
ALYANSANG
MAKABAYAN
(BAYAN),
GENERAL ALLIANCE BINDING
WOMEN
FOR
REFORMS,
INTEGRITY,
EQUALITY,
LEADERSHIP AND ACTION
(GABRIELA),
KILUSANG
MAGBUBUKID NG PILIPINAS
(KMP),
MOVEMENT
OF
CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY,
RECOGNITION
AND
ADVANCEMENT
OF
GOVERNMENT
EMPLOYEES
(COURAGE), KALIPUNAN NG
DAMAYANG
MAHIHIRAP
(KADAMAY), SOLIDARITY OF
CAVITE WORKERS, LEAGUE
OF FILIPINO STUDENTS (LFS),
ANAKBAYAN,
PAMBANSANG

LAKAS
NG
KILUSANG
MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT),
MIGRANTE,
HEALTH
ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO
GUINGONA,
JR.,
DR.
BIENVENIDO
LUMBERA,
RENATO CONSTANTINO, JR.,
SISTER
MARY
JOHN
MANANSAN
OSB,
DEAN
CONSUELO
PAZ,
ATTY.
JOSEFINA LICHAUCO, COL.
GERRY
CUNANAN
(ret.),
CARLITOS
SIGUION-REYNA,
DR. CAROLINA PAGADUANARAULLO, RENATO REYES,
DANILO
RAMOS,
EMERENCIANA DE
LESUS,
RITA BAUA, REY CLARO
CASAMBRE,
Petitioners,

- versus -

GLORIA
MACAPAGALARROYO, in her capacity as
President
and
Commander-inChief, EXECUTIVE SECRETARY
EDUARDO
ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN

G.R. No. 178581

AFFAIRS
SECRETARY
ALBERTO
ROMULO,
DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY
NORBERTO
GONZALES,
DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO.
DEPARTMENT OF FINANCE
SECRETARY
MARGARITO
TEVES, NATIONAL SECURITY
ADVISER
NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING
AGENCY
(NICA),
THE
NATIONAL
BUREAU OF INVESTIGATION
(NBI),
THE
BUREAU
OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES
(ISAFP),
THE
ANTI-MONEY
LAUNDERING
COUNCIL
(AMLC),
THE
PHILIPPINE
CENTER
ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL
POLICE
GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.
x ------------------------------------ x
KARAPATAN, ALLIANCE FOR
THE
ADVANCEMENT
OF
PEOPLES RIGHTS, represented
herein by Dr. Edelina de la Paz, and

representing
the
following
organizations:
HUSTISYA,
represented
by
Evangeline
Hernandez and also on her own
behalf;
DESAPARECIDOS,
represented
by
Mary
Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA EXDETAINEES
LABAN
SA
DETENSYON AT PARA SA
AMNESTIYA
(SELDA),
represented by Donato Continente
and also on his own behalf,
ECUMENICAL
MOVEMENT
FOR JUSTICE AND PEACE
(EMJP), represented by Bishop
Elmer M. Bolocon, UCCP, and
PROMOTION
OF
CHURCH
PEOPLES
RESPONSE,
represented by Fr. Gilbert Sabado,
OCARM,
Petitioners,

- versus -

GLORIA
MACAPAGALARROYO, in her capacity as
President
and
Commander-inChief,
EXECUTIVE
SECRETARTY
EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY

ALBERTO
ROMULO,
DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY
NORBERTO
GONZALES,
DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO,
DEPARTMENT OF FINANCE
SECRETARY
MARGARITO
TEVES, NATIONAL SECURITY
ADVISER
NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING
AGENCY
(NICA),
THE
NATIONAL
BUREAU OF INVESTIGATION
(NBI),
THE
BUREAU
OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES
(ISAFP),
THE
ANTI-MONEY
LAUNDERING
COUNCIL
(AMLC),
THE
PHILIPPINE
CENTER
ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL
POLICE
GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.

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

THE INTEGRATED BAR OF THE

PHILIPPINES (IBP), represented

by Atty. Feliciano M. Bautista,
COUNSELS FOR THE DEFENSE
OF LIBERTY(CODAL), SEN. MA.
ANA
CONSUELO
A.S.
MADRIGAL
and
FORMER
SENATORS SERGIO OSMEA III
and WIGBERTO E. TAADA,
Petitioners,

- versus -

EXECUTIVE
SECRETARY
EDUARDO ERMITA AND THE
MEMBERS OF THE ANTITERRORISM COUNCIL (ATC),
Respondents.

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

BAGONG
ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG
(BAYAN-ST),
GABRIELA-ST, KATIPUNAN NG
MGA
SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED
CITIZENS
FOR
CIVIL
LIBERTIES (MCCCL), PEOPLES
MARTYRS,
ANAKBAYAN-ST,

G.R. No. 178890

PAMALAKAYA-ST,
CONFEDERATION FOR UNITY,
RECOGNITION
AND
ADVANCEMENT
OF
GOVERNMENT
EMPLOYEES
(COURAGE-ST), PAGKAKAISAT
UGNAYAN
NG
MGA
MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF
FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO
NG MGA MAGBUBUKID PARA
SA REPORMANG AGRARYO
KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA TIMOG
KATAGALUGAN
(BALATIK),
SAMAHAN AT UGNAYAN NG
MGA
MAGSASAKANG
KABABAIHAN
SA
TIMOG
KATAGALUGAN (SUMAMAKATK), STARTER, LOSOS RURAL
POOR ORGANIZATION FOR
PROGRESS
&
EQUALITY,
CHRISTIAN NIO LAJARA,
TEODORO REYES, FRANCESCA
B. TOLENTINO, JANNETTE E.
BARRIENTOS,
OSCAR
T.
LAPIDA,
JR.,
DELFIN
DE
CLARO, SALLY P. ASTRERA,
ARNEL SEGUNE BELTRAN,
Petitioners,

- versus -

GLORIA
MACAPAGALARROYO, in her capacity as
President
and
Commander-inChief, EXECUTIVE SECRETARY
EDUARDO
ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN
AFFAIRS
SECRETARY
ALBERTO
ROMULO,
DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY
NORBERTO
GONZALES,
DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMEN T
SECRETARY RONALDO PUNO,
DEPARTMENT OF FINCANCE
SECRETARY
MARGARITO
TEVES, NATIONAL SECURITY
ADVISER
NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING
AGENCY
(NICA),
THE
NATIONAL
BUREAU OF INVESTIGATION
(NBI),
THE
BUREAU
OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES
(ISAFP),
THE
ANTI-MONEY
LAUNDERING
COUNCIL
(AMLC),
THE
PHILIPPINE
CENTER
ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL
POLICE
GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and

investigative elements, AFP CHIEF

GEN. HERMOGENES ESPERON,
Respondents.

G.R. No. 179157

G.R. No. 179461

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

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), An Act to Secure the State and Protect our People from Terrorism, otherwise
known as the Human Security Act of 2007,[1] signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a
concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16,
2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for
Trade Union and Human Rights (CTUHR), represented by their respective officers [3] who are
also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan,
Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by
their respective officers,[4] and joined by concerned citizens and taxpayers Teofisto Guingona, Jr.,
Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean
Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and
Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya,

Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya
(SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church

Peoples Response (PCPR), which were represented by their respective officers [5]who are also
bringing action on their own behalf, filed a petition for certiorari and prohibition docketed
as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense
of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and
Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters

and organizations mostly based in the Southern Tagalog Region, [7] and individuals[8] followed suit
by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism

Council[9] composed of, at the time of the filing of the petitions, Executive Secretary Eduardo
Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs
Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto
Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed
Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National
Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration,
Office of Civil Defense, Intelligence Service of the AFP, Anti-MoneyLaundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and underscoring
supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting

requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus

standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case.[10]

In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires 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.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule
on locus standi, thus:

Locus standi or legal standing has been defined as a personal and

substantial interest in a case such that the party has sustained or will sustain direct
injury as a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any governmental
act is invalid, but also that it sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to

be subjected to some burdens or penalties by reason of the statute or act

complained of.

For a concerned party to be allowed to raise a constitutional question, it

must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2) the injury
is fairly traceable to the challenged action, and (3) the injury is likely to be
redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected communist

fronts by the government, especially the military; whereas individual petitioners invariably
invoke the transcendental importance doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation belong to an altogether different
genus of constitutional litigation. Compelling State and societal interests in the proscription of
harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None
of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R.

No. 178890, allege that they have been subjected to close security surveillance by state security
forces, their members followed by suspicious persons and vehicles with dark windshields,
and their offices monitored by men with military build. They likewise claim that they have
been branded as enemies of the [S]tate.[14]

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported surveillance and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,

Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in
G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of
tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the procedure under the law. [15] The
petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or uncertain;
and (3) it must be known to be within the limits of the jurisdiction of the
court. The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute
in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determinationby resorting to
sources whose accuracy cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial matters

coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned demonstration. Thus,
facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided, they are of
such universal notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person. As the common

knowledge of man ranges far and wide, a wide variety of particular facts have
been judicially noticed as being matters of common knowledge. But a court
cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners
apprehension is insufficient to substantiate their plea. That no specific charge or proscription
under RA 9372 has been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed link to the CPP and NPA. They fail to particularize how
the implementation of specific provisions of RA 9372 would result in direct injury to their
organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America[17] (US) and the European Union[18] (EU) have both classified the CPP,
NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint
statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the
Arroyo Administration would adopt the US and EU classification of the CPP and NPA as
terrorist organizations.[19] Such statement notwithstanding, there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic terrorist or
outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years
now. From July 2007 up to the present, petitioner-organizations have conducted their activities
fully and freely without any threat of, much less an actual, prosecution or proscription under RA
9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,

[20]

urged the government to resume peace negotiations with the NDF by removing the
impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US
and EU as foreign terrorist organizations. Considering the policy statement of the Aquino
Administration[21] of resuming peace talks with the NDF, the government is not imminently
disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.

More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of thefirst case for
proscription under Section 17[23] of RA 9372 by the Department of Justice before the Basilan
Regional Trial Court against the Abu Sayyaf Group.[24] Petitioner-organizations do not in the
least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under
RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006
against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza
Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan
Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre,
Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos;
and accused of being front organizations for the Communist movement were petitionerorganizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For one,
those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this
Court. For another, rebellion is defined and punished under the Revised Penal
Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor
does the enactment thereof make it easier to charge a person with rebellion, its elements not
having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years after the
enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it
to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing. [27] The IBP failed to sufficiently demonstrate
how its mandate under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention
effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
political surveillance, also lacks locus standi. Prescinding from the veracity, let alone legal
basis, of the claim of political surveillance, the Court finds that she has not shown even the
slightest threat of being charged under RA 9372. Similarly lacking inlocus standi are former
Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos

Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental
importance, which must be settled early and are of far-reaching implications, without
mention of any specific provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe
litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining,
direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the

settled doctrine of locus standi, as every worthy cause is an interest shared by the general
public.

Neither
can locus
standi be
conferred
upon
individual
petitioners
as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the
spending or taxing power of Congress,[28] whereas citizen standing must rest on direct and
personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from Congress
for its implementation, while none of the individual petitioner-citizens has alleged any direct and
personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public
right, do not establish locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or

controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or

ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.[32]

Information Technology Foundation of the Philippines v. COMELEC [33] cannot be more

emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy

scholarly interest, however intellectually challenging. The controversy must
be justiciabledefinite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof on the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversyadmitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a
Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent
events.[34] Similarly, a petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the authorities does not present a
justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections[36] for failure to cite any specific affirmative action of the Commission on Elections to
implement the assailed resolution. It refused, in Abbas v. Commission on Elections,[37] to rule on
the religious freedom claim of the therein petitioners based merelyon a perceived potential
conflict between the provisions of the Muslim Code and those of the national law, there being no
actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interestsuffices to provide a basis for mounting a constitutional
challenge. This, however, is qualified by the requirement that there must be sufficient facts to
enable the Court to intelligently adjudicate the issues.[38]

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
plaintiffs faced a credible threat of prosecution and should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief.[40] The plaintiffs therein
filed an action before a federal court to assail the constitutionality of the material support statute,
18 U.S.C. 2339B (a) (1),[41] proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed that
they intended to provide support for the humanitarian and political activities of two such
organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the conductor
activity that a petitioner seeks to do, as there would then be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct oractivity that they
seek to do. No demonstrable threat has been established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being

tagged as communist fronts in no way approximate a credible threat of prosecution. From
these allegations, the Court is being lured to render an advisory opinion, which is not its
function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions characterized

by double contingency, where both the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for
lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is not
peculiar to RA 9372 since the exercise of any power granted by law may be abused.
[45]
Allegations of abuse must be anchored on real events before courts may step in to
settle actual controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free

speech cases, wherein certain rules of constitutional
litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism[46] under RA 9372 in that terms like widespread and extraordinary fear
and panic among the populace and coerce the government to give in to an unlawful demand
are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to free
speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline

the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally
applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly citeRomualdez v. Hon.
Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section

5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly
broad. The Court stated that the overbreadth and the vagueness doctrines have special
application only to free-speech cases, and are not appropriate for testing the validity of penal
statutes.[50] It added that, at any rate, the challenged provision, under which the therein
petitioner was charged, is not vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court stated
that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to
conduct a vagueness analysis, and concluded that the therein subject election offense [53] under the
Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in
precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion [55] of Justice Vicente V.
Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No.
7080) clear and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a facial invalidation as opposed to an as-applied challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify a facial
review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza,
which was quoted at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which

is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application

only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are

analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, whilestatutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case

must be examined in the light of the conduct with which the defendant is charged.
[56]
(Underscoring supplied.)

The
confusion
apparently
stems
from
the
interlocking
relation
of
the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a
penal statute (under a claim of violation of due process of law) or a speech regulation (under a
claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on
the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and differ as to
its application. It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.[57] The overbreadth doctrine, meanwhile, decrees
that a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to refrain
from constitutionally protected speech or activities.[60]

Justice Mendoza accurately phrased the subtitle [61] in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable
to penal laws. A litigant cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the
chilling effect on protected speech, the exercise of which should not at all times be abridged.
[62]
As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear
an in terrorem effect in deterring socially harmful conduct. In fact, the legislature may even
forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute may be
challenged and underscored that an on-its-face invalidation of penal statutes x x x may not be
allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of penal statutes, if
the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third

parties who are not before it. As I have said in my opposition to the allowance of a
facial challenge to attack penal statutes, such a test will impair the States ability to
deal with crime. If warranted, there would be nothing that can hinder an accused
from defeating the States power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad, notwithstanding that the law is
clear as applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation
in order to plot areas of protected speech, inevitably almost always under situations not before
the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad laws "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
[66]
(Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside
the limited context of the First Amendment,[68] and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.
[69]
In Virginia v. Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-related
conduct. Attacks on overly broad statutes are justified by the transcendent value to all society
of constitutionally protected expression.[71]
[67]

Since a penal statute may only be assailed for being

vague as applied to petitioners, a limited vagueness analysis
of the definition of terrorism in RA 9372 is legally
impermissible absent an actual or imminent charge against
them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of
the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however,
that there was no basis to review the law on its face and in its entirety. [72] It stressed that
statutes found vague as a matter of due process typically are invalidated only 'as applied' to a
particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve the
First Amendment must be examined in light of the specific facts of the case at hand and not with
regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as among the most
important guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause
has been utilized in examining the constitutionality of criminal statutes. In at least three cases,
[76]
the Court brought the doctrine into play in analyzing an ordinance penalizing the nonpayment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article
132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal
Code.
Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute,
unlike in the present case.

There is no merit in the claim that RA 9372

regulates speech so as to permit a facial analysis of
its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any of the
cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws;
(2) the commission of the predicate crime sows and creates a condition of widespread and
extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to
coerce the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of unlawful demand in the definition of terrorism [77] must
necessarily be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate
crime actually committed to trigger the operation of the key qualifying phrases in the other
elements of the crime, including the coercion of the government to accede to an unlawful

demand. Given the presence of the first element, any attempt at singling out or highlighting the
communicative component of the prohibition cannot recategorize the unprotected conduct into a
protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly

focuses on just one particle of an element of the crime. Almost every commission of a crime
entails some mincing of words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom or conditions, or in
negotiating a deceitful transaction. An analogy in one U.S. case[78] illustrated that the fact that
the prohibition on discrimination in hiring on the basis of race will require an employer to take
down a sign reading White Applicants Only hardly means that the law should be analyzed as
one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct
alter neither the intent of the law to punish socially harmful conduct nor the essence of the
whole act as conduct and not speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to society.
[79]
(italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct.[80] Since speech is not involved here, the Court cannot heed the
call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were actually
charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases,
however, found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of
a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a credible
threat of prosecution and should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief.

As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of terrorism is thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statutes future effect on hypothetical
scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in
Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

EN BANC
RE: PETITION FOR RADIO
AND
TELEVISION
COVERAGE
OF
THE
MULTIPLE MURDER CASES
AGAINST
MAGUINDANAO
GOVERNOR
ZALDY
AMPATUAN, ET AL.,

x ----------------------------------- x
RE: PETITION FOR THE
CONSTITUTION OF THE
PRESENT
COURT
HANDLING THE TRIAL OF
THE MASSACRE OF 57
PERSONS, INCLUDING 32

A.M. No. 10-11-5-SC

A.M. No. 10-11-6-SC

Present:
CORONA,* C.J.,

JOURNALISTS,
IN
AMPATUAN, MAGUINDANAO
INTO A SPECIAL COURT
HANDLING
THIS
CASE
ALONE FOR THE PURPOSE
OF ACHIEVING GENUINE
SPEEDY TRIAL and FOR THE
SETTING UP OF VIDEOCAM
AND
MONITOR
JUST
OUTSIDE THE COURT FOR
JOURNALISTS TO COVER
AND FOR THE PEOPLE TO
WITNESS THE TRIAL OF
THE DECADE TO MAKE IT
TRULY
PUBLIC
AND
IMPARTIAL
AS
COMMANDED
BY
THE
CONSTITUTION,

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

CARPIO,
CARPIO MORALES,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:
June 14, 2011

RE: LETTER OF PRESIDENT

A.M. No. 10-11-7-SC
BENIGNO S. AQUINO III FOR
THE
LIVE
MEDIA
COVERAGE
OF
THE
MAGUINDANAO MASSACRE
TRIAL.
x----------------------------------------------------------------------------------------x

RESOLUTION
CARPIO MORALES, J.:
On November 23, 2009, 57 people including 32 journalists and media
practitioners were killed while on their way to Shariff Aguak in Maguindanao.
Touted as the worst election-related violence and the most brutal killing of

journalists in recent history, the tragic incident which came to be known as the
Maguindanao Massacre spawned charges for 57 counts of murder and an
additional charge of rebellion against 197 accused, docketed as Criminal Case Nos.
Q-09-162148-72, Q-09-162216-31, Q-10-162652-66, and Q-10-163766,
commonly entitled People v. Datu Andal Ampatuan, Jr., et al. Following the
transfer of venue and the reraffling of the cases, the cases are being tried by
Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court
(RTC) of Quezon City inside Camp Bagong Diwa in Taguig City.
Almost a year later or on November 19, 2010, the National Union of
Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA
Network, Inc., relatives of the victims,[1] individual journalists[2] from various
media entities, and members of the academe [3] filed a petition before this Court
praying that live television and radio coverage of the trial in these criminal cases
be allowed, recording devices (e.g., still cameras, tape recorders) be permitted
inside the courtroom to assist the working journalists, and reasonable guidelines be
formulated to govern the broadcast coverage and the use of devices. [4] The Court
docketed the petition as A.M. No. 10-11-5-SC.
In a related move, the National Press Club of the Philippines [5] (NPC)
and Alyansa ng Filipinong Mamamahayag[6] (AFIMA) filed on November 22,
2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City
as a special court to focus only on the Maguindanao Massacre trial to relieve it
of all other pending cases and assigned duties, and allow the installation inside the
courtroom of a sufficient number of video cameras that shall beam the audio and
video signals to the television monitors outside the court. [7] The Court docketed
the petition as A.M. No. 10-11-6-SC.

President Benigno S. Aquino III, by letter of November 22,

2010 addressed to Chief Justice Renato Corona, came out in support of those
who have petitioned [this Court] to permit television and radio broadcast of the
trial." The President expressed earnest hope that [this Court] will, within the
many considerations that enter into such a historic deliberation,attend to this
petition with the dispatch, dispassion and humaneness, such a petition
merits.[9] The Court docketed the matter as A.M. No. 10-11-7-SC.
[8]

By
separate
Resolutions
of
November
23,
2010, [10] the
Court consolidated A.M. No. 10-11-7-SC with A.M. No. 10-11-5-SC. The Court
shall treat in a separate Resolution A.M. No. 10-11-6-SC.
Meanwhile, various groups[11] also sent to the Chief Justice their respective
resolutions and statements bearing on these matters.
The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a
Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M.
No. 10-11-7-SC. The President, through the Office of the Solicitor General (OSG),
and NUJP, et al. filed their respective Reply of January 18, 2011 and January 20,
2011. Ampatuan also filed a Rejoinder of March 9, 2011.
On Broadcasting the Trial of the Maguindanao Massacre Cases
Petitioners seek the lifting of the absolute ban on live television and radio
coverage of court proceedings. They principally urge the Court to revisit
the 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President
Corazon C. Aquinos Libel Case[12] and the 2001 ruling in Re: Request Radio-TV
Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the
Former President Joseph E. Estrada[13] which rulings, they contend, violate the
doctrine that proposed restrictions on constitutional rights are to be narrowly
construed and outright prohibition cannot stand when regulation is a viable
alternative.
Petitioners state that the trial of the Maguindanao Massacre cases has
attracted intense media coverage due to the gruesomeness of the crime,
prominence of the accused, and the number of media personnel killed. They

inform that reporters are being frisked and searched for cameras, recorders, and
cellular devices upon entry, and that under strict orders of the trial court against
live broadcast coverage, the number of media practitioners allowed inside the
courtroom has been limited to one reporter for each media institution.
The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by
January 12, 2010 letter[14] to Judge Solis-Reyes, requested a dialogue to discuss
concerns over media coverage of the proceedings of the Maguindanao Massacre
cases. Judge Solis-Reyes replied, however, that matters concerning media
coverage should be brought to the Courts attention through appropriate
motion.[15] Hence, the present petitions which assert the exercise of the freedom
of the press, right to information, right to a fair and public trial, right to assembly
and to petition the government for redress of grievances, right of free access to
courts, and freedom of association, subject to regulations to be issued by the Court.
The Court partially GRANTS pro hac vice petitioners prayer for a live
broadcast of the trial court proceedings, subject to the guidelines which shall
be enumerated shortly.
Putts Law[16] states that technology is dominated by two types of people:
those who understand what they do not manage, and those who manage what they
do not understand. Indeed, members of this Court cannot strip their judicial robe
and don the experts gown, so to speak, in a pretense to foresee and fathom all
serious prejudices or risks from the use of technology inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is once again
faced with the same task of striking that delicate balance between seemingly
competing yet certainly complementary rights.
The indication of serious risks posed by live media coverage to the
accuseds right to due process, left unexplained and unexplored in the era obtaining
in Aquino andEstrada, has left a blow to the exercise of press freedom and the
right to public information.
The rationale for an outright total prohibition was shrouded, as it is
now, inside the comfortable cocoon of a feared speculation which no scientific

study in the Philippine setting confirms, and which fear, if any, may be dealt
with by safeguards and safety nets under existing rules and exacting
regulations.
In this day and age, it is about time to craft a win-win situation that
shall not compromise rights in the criminal administration of justice, sacrifice press
freedom and allied rights, and interfere with the integrity, dignity and solemnity of
judicial proceedings. Compliance with regulations, not curtailment of a right,
provides a workable solution to the concerns raised in these administrative matters,
while, at the same time, maintaining the same underlying principles upheld in the
two previous cases.
The basic principle upheld in Aquino is firm [a] trial of any kind or in any
court is a matter of serious importance to all concerned and should not be treated as
a means of entertainment[, and t]o so treat it deprives the court of the dignity
which pertains to it and departs from the orderly and serious quest for truth for
which our judicial proceedings are formulated. The observation that [m]assive
intrusion of representatives of the news media into the trial itself can so alter and
destroy the constitutionally necessary atmosphere and decorum stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's right to due
process as well as to the fair and orderly administration of justice, and
considering further that the freedom of the press and the right of the
people to information may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and television coverage of
court proceedings shall not be allowed. Video footages of court hearings
for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior
to the commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.
Accordingly, in order to protect the parties' right to due process, to
prevent the distraction of the participants in the proceedings and in the
last analysis, to avoid miscarriage of justice, the Court resolved to
PROHlBIT live radio and television coverage of court proceedings.

Video footage of court hearings for news purposes shall be limited and
restricted as above indicated.[17]

The Court had another unique opportunity in Estrada to revisit the question
of live radio and television coverage of court proceedings in a criminal case. It
held that [t]he propriety of granting or denying the instant petition involve[s] the
weighing out of the constitutional guarantees of freedom of the press and the right
to public information, on the one hand, and the fundamental rights of the accused,
on the other hand, along with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial. The Court disposed:
The Court is not all that unmindful of recent technological and
scientific advances but to chance forthwith the life or liberty of any
person in a hasty bid to use and apply them, even before ample safety
nets are provided and the concerns heretofore expressed are aptly
addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.[18]

In resolving the motion for reconsideration, the Court in Estrada, by

Resolution of September 13, 2001, provided a glimmer of hope when it ordered the
audio-visual recording of the trial for documentary purposes, under the following
conditions:
x x x (a) the trial shall be recorded in its entirety, excepting such
portions thereof as the Sandiganbayan may determine should not be held
public under Rule 119, 21 of the Rules of Criminal Procedure; (b)
cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and
solemnity of the proceedings; (c) the audio-visual recordings shall be
made for documentary purposes only and shall be made without comment
except such annotations of scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases against the
former President shall be prohibited under pain of contempt of court and

other sanctions in case of violations of the prohibition; (e) to ensure that

the conditions are observed, the audio-visual recording of the proceedings
shall be made under the supervision and control of the Sandiganbayan or
its Division concerned and shall be made pursuant to rules promulgated
by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in
the National Museum and the Records Management and Archives Office
for preservation and exhibition in accordance with law.[19]

Petitioners
note
that
the
1965
case
of Estes
v.
Texas which Aquino and Estrada heavily cited, was borne out of the dynamics of
a jury system, where the considerations for the possible infringement of the
impartiality of a jury, whose members are not necessarily schooled in the law, are
different from that of a judge who is versed with the rules of evidence. To
petitioners, Estes also does not represent the most contemporary position of
the United States in the wake of latest jurisprudence[21] and statistical figures
revealing that as of 2007 all 50 states, except the District of Columbia, allow
television coverage with varying degrees of openness.
[20]

Other jurisdictions welcome the idea of media coverage. Almost all the
proceedings of United Kingdoms Supreme Court are filmed, and sometimes
broadcast.[22] The International Criminal Court broadcasts its proceedings via
video streaming in the internet.[23]
On the media coverages influence on judges, counsels and witnesses,
petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence
to support the sustained conclusion. They point out errors of generalization where
the conclusion has been mostly supported by studies on American attitudes, as
there has been no authoritative study on the particular matter dealing with
Filipinos.
Respecting the possible influence of media coverage on the impartiality of
trial court judges, petitioners correctly explain that prejudicial publicity insofar as
it undermines the right to a fair trial must pass the totality of
circumstances test, applied in People v. Teehankee, Jr.[24] and Estrada v.
Desierto,[25] that the right of an accused to a fair trial is not incompatible to a free

press, that pervasive publicity is not per se prejudicial to the right of an accused to
a fair trial, and that there must be allegation and proof of the impaired capacity of a
judge to render a bias-free decision. Mere fear of possible undue influence is not
tantamount to actual prejudice resulting in the deprivation of the right to a fair
trial.
Moreover, an aggrieved party has ample legal remedies. He may challenge
the validity of an adverse judgment arising from a proceeding that transgressed a
constitutional right. As pointed out by petitioners, an aggrieved party may early on
move for a change of venue, for continuance until the prejudice from publicity is
abated, for disqualification of the judge, and for closure of portions of the trial
when necessary. The trial court may likewise exercise its power of contempt and
issue gag orders.
One apparent circumstance that sets the Maguindanao Massacre cases apart
from the earlier cases is the impossibility of accommodating even the parties to the
cases the private complainants/families of the victims and other witnesses
inside the courtroom. On public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a right that belongs
to him, more than anyone else, where his life or liberty can be held
critically in balance. A public trial aims to ensure that he is fairly dealt
with and would not be unjustly condemned and that his rights are not
compromised in secrete conclaves of long ago. A public trial is not
synonymous with publicized trial; it only implies that the court doors
must be open to those who wish to come, sit in the available seats,
conduct themselves with decorum and observe the trial process. In the
constitutional sense,a courtroom should have enough facilities for a
reasonable number of the public to observe the proceedings, not too small
as to render the openness negligible and not too large as to distract the
trial participants from their proper functions, who shall then be totally
free to report what they have observed during the proceedings.
[26]
(underscoring supplied)

Even before considering what is a reasonable number of the public who

may observe the proceedings, the peculiarity of the subject criminal cases is that

the proceedings already necessarily entail the presence of hundreds of families. It

cannot be gainsaid that the families of the 57 victims and of the 197 accused have
as much interest, beyond mere curiosity, to attend or monitor the proceedings as
those of the impleaded parties or trial participants. It bears noting at this juncture
that the prosecution and the defense have listed more than 200 witnesses each.

The impossibility of holding such judicial proceedings in a courtroom that

will accommodate all the interested parties, whether private complainants or
accused, is unfortunate enough. What more if the right itself commands that a
reasonable number of the general public be allowed to witness the proceeding as it
takes place inside the courtroom. Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the imperative of
a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting by radio and television of
the Maguindanao Massacre cases,
the
Court
lays down the
following guidelines toward
addressing
the
concerns
mentioned
in Aquino and Estrada:
(a) An audio-visual recording of the Maguindanao massacre cases may
be made both for documentary purposes and for transmittal to live
radio and television broadcasting.
(b) Media entities must file with the trial court a letter of application,
manifesting that they intend to broadcast the audio-visual recording of
the proceedings and that they have the necessary technological
equipment and technical plan to carry out the same, with an
undertaking that they will faithfully comply with the guidelines and
regulations and cover the entire remaining proceedings until
promulgation of judgment.
No selective or partial coverage shall be allowed. No media
entity shall be allowed to broadcast the proceedings without an
application duly approved by the trial court.
(c) A single fixed compact camera shall be installed inconspicuously
inside the courtroom to provide a single wide-angle full-view of the

sala of the trial court. No panning and zooming shall be allowed to

avoid unduly highlighting or downplaying incidents in the
proceedings. The camera and the necessary equipment shall be
operated and controlled only by a duly designated official or employee
of the Supreme Court. The camera equipment should not produce or
beam any distracting sound or light rays. Signal lights or signs
showing the equipment is operating should not be visible. A limited
number of microphones and the least installation of wiring, if not
wireless technology, must be unobtrusively located in places indicated
by the trial court.
The Public Information Office and the Office of the Court
Administrator shall coordinate and assist the trial court on the physical
set-up of the camera and equipment.
(d) The transmittal of the audio-visual recording from inside the
courtroom to the media entities shall be conducted in such a way that
the least physical disturbance shall be ensured in keeping with the
dignity and solemnity of the proceedings and the exclusivity of the
access to the media entities.
The hardware for establishing an interconnection or link with
the camera equipment monitoring the proceedings shall be for the
account of the media entities, which should employ technology that
can (i) avoid the cumbersome snaking cables inside the courtroom, (ii)
minimize the unnecessary ingress or egress of technicians, and (iii)
preclude undue commotion in case of technical glitches.
If the premises outside the courtroom lack space for the set-up
of the media entities facilities, the media entities shall access the
audio-visual recording either via wireless technology accessible even
from outside the court premises or from one common web
broadcasting platform from which streaming can be accessed or
derived to feed the images and sounds.
At all times, exclusive access by the media entities to the realtime audio-visual recording should be protected or encrypted.
(e) The broadcasting of the proceedings for a particular day must be
continuous and in its entirety, excepting such portions thereof where

Sec. 21 of Rule 119 of the Rules of Court [27] applies, and where the
trial court excludes, upon motion, prospective witnesses from the
courtroom, in instances where, inter alia, there are unresolved
identification issues or there are issues which involve the security of
the witnesses and the integrity of their testimony (e.g., the dovetailing
of corroborative testimonies is material, minority of the witness).
The trial court may, with the consent of the parties, order only
the pixelization of the image of the witness or mute the audio output,
or both.
(f) To provide a faithful and complete broadcast of the proceedings, no
commercial break or any other gap shall be allowed until the days
proceedings are adjourned, except during the period of recess called by
the trial court and during portions of the proceedings wherein the
public is ordered excluded.
(g) To avoid overriding or superimposing the audio output from the
on-going proceedings, the proceedings shall be broadcast without any
voice-overs, except brief annotations of scenes depicted therein as may
be necessary to explain them at the start or at the end of the
scene. Any commentary shall observe the sub judice rule and be
subject to the contempt power of the court;
(h) No repeat airing of the audio-visual recording shall be allowed
until after the finality of judgment, except brief footages and still
images derived from or cartographic sketches of scenes based on the
recording, only for news purposes, which shall likewise observe
the sub judice rule and be subject to the contempt power of the court;
(i) The original audio-recording shall be deposited in
the National Museum and the Records Management and Archives
Office for preservation and exhibition in accordance with law.
(j) The audio-visual recording of the proceedings shall be made under
the supervision and control of the trial court which may issue
supplementary directives, as the exigency requires, including the
suspension or revocation of the grant of application by the media
entities.

(k) The Court shall create a special committee which shall forthwith
study, design and recommend appropriate arrangements, implementing
regulations, and administrative matters referred to it by the Court
concerning the live broadcast of the proceedings pro hac vice, in
accordance with the above-outlined guidelines. The Special
Committee shall also report and recommend on the feasibility,
availability and affordability of the latest technology that would meet
the herein requirements. It may conduct consultations with resource
persons and experts in the field of information and communication
technology.
(l) All other present directives in the conduct of the proceedings of the
trial court (i.e., prohibition on recording devices such as still cameras,
tape recorders; and allowable number of media practitioners inside the
courtroom) shall be observed in addition to these guidelines.
Indeed, the Court cannot gloss over what advances technology has to offer in
distilling the abstract discussion of key constitutional precepts into the workable
context. Technology per se has always been neutral. It is the use and regulation
thereof that need fine-tuning. Law and technology can work to the advantage and
furtherance of the various rights herein involved, within the contours of defined
guidelines.
WHEREFORE, in light of the foregoing disquisition, the
Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by
television and radio of the trial court proceedings of the Maguindanao Massacre
cases, subject to the guidelines herein outlined.
SO ORDERED.
CONCHITA CARPIO MORALES

Associate Justice