Prior Restraints & Subsequent Punishment
(b) a malicious, scandalous and defamatory newspaper, magazine or other
Near v. Minnesota
1. A Minnesota statute declares that one who engages "in the business of regularly and
customarily producing, publishing," etc., "a malicious, scandalous and defamatory newspaper,
magazine or other periodical," is guilty of a nuisance, and authorizes suits, in the name of the
State, in which such periodicals may be abated and their publishers enjoined from future
violations. In such a suit, malice may be inferred from the fact of publication. The defendant is
permitted to prove, as a defense, that his publications were true and published "with good
motives and for justifiable ends." Disobedience of an injunction is punishable as a contempt.
Held unconstitutional, as applied to publications charging neglect of duty and corruption upon
the part of law-enforcing officers of the State. Pp. 704, 709, 712, 722.
2. Liberty of the press is within the liberty safeguarded by the due process clause of the
Fourteenth Amendment from invasion by state action. P. 707.
3. Liberty of the press is not an absolute right, and the State may punish its abuse. P. 708.
4. In passing upon the constitutionality of the statute, the court has regard for substance, and
not for form; the statute must be tested by its operation and effect. P. 708. [p698]
5. Cutting through mere details of procedure, the operation and effect of the statute is that
public authorities may bring a publisher before a judge upon a charge of conducting a business
of publishing scandalous and defamatory matter -- in particular, that the matter consists of
charges against public officials of official dereliction -- and, unless the publisher is able and
disposed to satisfy the judge that the charges are true and are published with good motives and
for justifiable ends, his newspaper or periodical is suppressed and further publication is made
punishable as a contempt. This is the essence of censorship. P. 713.
6. A statute authorizing such proceedings in restraint of publication is inconsistent with the
conception of the liberty of the press as historically conceived and guaranteed. P. 713.
7. The chief purpose of the guaranty is to prevent previous restraints upon publication. The
libeler, however, remains criminally and civilly responsible for his libels. P. 713.
8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but
they are not applicable in this case. P. 715.
9. The liberty of the press has been especially cherished in this country as respects publications
censuring public officials and charging official misconduct. P. 716.
10. Public officers find their remedies for false accusations in actions for redress and punishment
under the libel laws, and not in proceedings to restrain the publication of newspapers and
periodicals. P. 718.
11. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does
not make any the less necessary the immunity from previous restraint in dealing with official
misconduct. P. 720.
12. Characterizing the publication of charges of official misconduct as a "business," and the
business as a nuisance, does not avoid the constitutional guaranty; nor does it matter that the
periodical is largely or chiefly devoted to such charges. P. 720.
13. The guaranty against previous restraint extends to publications charging official derelictions
that amount to crimes. P. 720.
14. Permitting the publisher to show in defense that the matter published is true and is
published with good motives and for justifiable ends does not justify the statute. P. 721.
15. Nor can it be sustained as a measure for preserving the public peace and preventing
assaults and crime. Pp. 721, 722.
[p699]
APPEAL from a decree which sustained an injunction abating the publication of a periodical as
malicious, scandalous and defamatory, and restraining future publication. The suit was based on
a Minnesota statute. See also s.c., 174 Minn. 457, 219 N.W. 770. [p701]
TOP
Opinion
HUGHES, C.J., Opinion of the Court
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Chapter 285 of the Session Laws of Minnesota for the year 1925 [n1] provides for
the abatement, as a public nuisance, of a "malicious, scandalous and defamatory
newspaper, [p702] magazine or other periodical." Section one of the Act is as
follows:
Section 1. Any person who, as an individual, or as a member or employee of a firm,
or association or organization, or as an officer, director, member or employee of a
corporation, shall be engaged in the business of regularly or customarily producing,
publishing or circulating, having in possession, selling or giving away
(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
periodical, is guilty of a nuisance, and all persons guilty of such nuisance may be
enjoined, as hereinafter provided.
Participation in such business shall constitute a commission of such nuisance and
render the participant liable and subject to the proceedings, orders and judgments
provided for in this Act. Ownership, in whole or in part, directly or indirectly, of any
such periodical, or of any stock or interest in any corporation or organization which
owns the same in whole or in part, or which publishes the same, shall constitute
such participation.
In actions brought under (b) above, there shall be available the defense that the
truth was published with good motives and for justifiable ends and in such actions
the plaintiff shall not have the right to report (sic) to issues or editions of periodicals
taking place more than three months before the commencement of the action.
Section two provides that, whenever any such nuisance is committed or exists, the
County Attorney of any county where any such periodical is published or circulated,
or, in case of his failure or refusal to proceed upon written request in good faith of a
reputable citizen, the Attorney General, or, upon like failure or refusal of the latter,
any citizen of the county may maintain an action in the district court of the county in
the name of the State to enjoin [p703] perpetually the persons committing or
maintaining any such nuisance from further committing or maintaining it. Upon such
evidence as the court shall deem sufficient, a temporary injunction may be granted.
The defendants have the right to plead by demurrer or answer, and the plaintiff may
demur or reply as in other cases.
The action, by section three, is to be " governed by the practice and procedure
applicable to civil actions for injunctions," and, after trial, the court may enter
judgment permanently enjoining the defendants found guilty of violating the Act
from continuing the violation, and, "in and by such judgment, such nuisance may be
wholly abated." The court is empowered, as in other cases of contempt, to punish
disobedience to a temporary or permanent injunction by fine of not more than
$1,000 or by imprisonment in the county jail for not more than twelve months.
Under this statute, clause (b), the County Attorney of Hennepin County brought this
action to enjoin the publication of what was described as a " malicious, scandalous
and defamatory newspaper, magazine and periodical" known as " The Saturday
Press," published by the defendants in the city of Minneapolis. The complaint alleged
that the defendants, on September 24, 1927, and on eight subsequent dates in
October and November, 1927, published and circulated editions of that periodical
which were "largely devoted to malicious, scandalous and defamatory articles"
concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the
Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the
members of the Grand Jury of Hennepin County impaneled in November, 1927, and
then holding office, and other persons, as more fully appeared in exhibits annexed to
the complaint, consisting of copies of the articles described and constituting 327
pages of the record. While the complaint did not so allege, it [p704] appears from
the briefs of both parties that Charles G. Davis was a special law enforcement officer
employed by a civic organization, that George E. Leach was Mayor of Minneapolis,
that Frank W. Brunskill was its Chief of Police, and that Floyd B. Olson (the relator in
this action) was County Attorney.
Without attempting to summarize the contents of the voluminous exhibits attached
to the complaint, we deem it sufficient to say that the articles charged in substance
that a Jewish gangster was in control of gambling, bootlegging and racketeering in
Minneapolis, and that law enforcing officers and agencies were not energetically
performing their duties. Most of the charges were directed against the Chief of
Police; he was charged with gross neglect of duty, illicit relations with gangsters, and
with participation in graft. The County Attorney was charged with knowing the
existing conditions and with failure to take adequate measures to remedy them. The
Mayor was accused of inefficiency and dereliction. One member of the grand jury
was stated to be in sympathy with the gangsters. A special grand jury and a special
prosecutor were demanded to deal with the situation in general, and, in particular,
to investigate an attempt to assassinate one Guilford, one of the original
defendants, who, it appears from the articles, was shot by gangsters after the first
issue of the periodical had been published. There is no question but that the articles
made serious accusations against the public officers named and others in
connection with the prevalence of crimes and the failure to expose and punish them.
At the beginning of the action, on November 22, 1927, and upon the verified
complaint, an order was made directing the defendants to show cause why a
temporary injunction should not issue and meanwhile forbidding the defendants to
publish, circulate or have in their possession any editions of the periodical from
September [p705] 24, 1927, to November 19, 1927, inclusive, and from publishing,
circulating, or having in their possession, "any future editions of said The Saturday
Press" and
any publication, known by any other name whatsoever containing malicious,
scandalous and defamatory matter of the kind alleged in plaintiff's complaint herein
or otherwise.
The defendants demurred to the complaint upon the ground that it did not state
facts sufficient to constitute a cause of action, and on this demurrer challenged the
constitutionality of the statute. The District Court overruled the demurrer and
certified the question of constitutionality to the Supreme Court of the State. The
Supreme Court sustained the statute (174 Minn. 457, 219 N.W. 770), and it is
conceded by the appellee that the Act was thus held to be valid over the objection
that it violated not only the state constitution, but also the Fourteenth Amendment
of the Constitution of the United States.
Thereupon, the defendant Near, the present appellant, answered the complaint. He
averred that he was the sole owner and proprietor of the publication in question. He
admitted the publication of the articles in the issues described in the complaint, but
denied that they were malicious, scandalous or defamatory as alleged. He expressly
invoked the protection of the due process clause of the Fourteenth Amendment. The
case then came on for trial. The plaintiff offered in evidence the verified complaint,
together with the issues of the publication in question, which were attached to the
complaint as exhibits. The defendant objected to the introduction of the evidence,
invoking the constitutional provisions to which his answer referred. The objection
was overruled, no further evidence was presented, and the plaintiff rested. The
defendant then rested without offering evidence. The plaintiff moved that the court
direct the issue of a permanent injunction, and this was done. [p706]
The District Court made findings of fact which followed the allegations of the
complaint and found in general terms that the editions in question were "chiefly
devoted to malicious, scandalous and defamatory articles" concerning the
individuals named. The court further found that the defendants, through these
publications,
did engage in the business of regularly and customarily producing, publishing and
circulating a malicious, scandalous and defamatory newspaper,
and that "the said publication" "under said name of The Saturday Press, or any other
name, constitutes a public nuisance under the laws of the State." Judgment was
thereupon entered adjudging that "the newspaper, magazine and periodical known
as The Saturday Press," as a public nuisance, "be and is hereby abated." The
Judgment perpetually enjoined the defendants
from producing, editing, publishing, circulating, having in their possession, selling or
giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law,
and also "from further conducting said nuisance under the name and title of said
The Saturday Press or any other name or title."
The defendant Near appealed from this judgment to the Supreme Court of the State,
again asserting his right under the Federal Constitution, and the judgment was
affirmed upon the authority of the former decision. 179 Minn. 40, 228 N.W. 326. With
respect to the contention that the judgment went too far, and prevented the
defendants from publishing any kind of a newspaper, the court observed that the
assignments of error did not go to the form of the judgment, and that the lower
court had not been asked to modify it. The court added that it saw no reason
for defendants to construe the judgment as restraining them from operating a
newspaper in harmony with the public welfare, to which all must yield,
that the allegations of the complaint had been [p707] found to be true, and, though
this was an equitable action, defendants had not indicated a desire "to conduct their
business in the usual and legitimate manner."
From the judgment as thus affirmed, the defendant Near appeals to this Court.
This statute, for the suppression as a public nuisance of a newspaper or periodical, is
unusual, if not unique, and raises questions of grave importance transcending the
local interests involved in the particular action. It is no longer open to doubt that the
liberty of the press, and of speech, is within the liberty safeguarded by the due
process clause of the Fourteenth Amendment from invasion by state action. It was
found impossible to conclude that this essential personal liberty of the citizen was
left unprotected by the general guaranty of fundamental rights of person and
property. Gitlow v. New York, 268 U.S. 652, 666; Whitney v. California, 274 U.S. 357,
362, 373; Fiske v. Kansas, 274 U.S. 380, 382; Stromberg v. California, ante, p. 359. In
maintaining this guaranty, the authority of the State to enact laws to promote the
health, safety, morals and general welfare of its people is necessarily admitted. The
limits of this sovereign power must always be determined with appropriate regard to
the particular subject of its exercise. Thus, while recognizing the broad discretion of
the legislature in fixing rates to be charged by those undertaking a public service,
this Court has decided that the owner cannot constitutionally be deprived of his right
to a fair return, because that is deemed to be of the essence of ownership. Railroad
Commission Cases, 116 U.S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236
U.S. 585, 596. So, while liberty of contract is not an absolute right, and the wide field
of activity in the making of contracts is subject to legislative supervision (Frisbie v.
United States, 157 U.S. 161, 165), this Court has held that the power of the State
stops short of interference with what are deemed [p708] to be certain indispensable
requirements of the liberty assured, notably with respect to the fixing of prices and
wages. Tyson Bros. v. Banton, 273 U.S. 418; Ribnik v. McBride, 277 U.S. 350; Adkins
v. Children's Hospital, 261 U.S. 525, 560, 561. Liberty of speech, and of the press, is
also not an absolute right, and the State may punish its abuse. Whitney v. California,
supra; Stromberg v. California, supra. Liberty, in each of its phases, has its history
and connotation, and, in the present instance, the inquiry is as to the historic
conception of the liberty of the press and whether the statute under review violates
the essential attributes of that liberty.
The appellee insists that the questions of the application of the statute to appellant's
periodical, and of the construction of the judgment of the trial court, are not
presented for review; that appellant's sole attack was upon the constitutionality of
the statute, however it might be applied. The appellee contends that no question
either of motive in the publication, or whether the decree goes beyond the direction
of the statute, is before us. The appellant replies that, in his view, the plain terms of
the statute were not departed from in this case, and that, even if they were, the
statute is nevertheless unconstitutional under any reasonable construction of its
terms. The appellant states that he has not argued that the temporary and
permanent injunctions were broader than were warranted by the statute; he insists
that what was done was properly done if the statute is valid, and that the action
taken under the statute is a fair indication of its scope.
With respect to these contentions, it is enough to say that, in passing upon
constitutional questions, the court has regard to substance, and not to mere matters
of form, and that, in accordance with familiar principles, the statute must be tested
by its operation and effect. Henderson v. Mayor, 92 U.S. 259, 268; Bailey v.
Alabama, 219 [p709] U.S. 219, 244; United States v. Reynolds, 235 U.S. 133, 148,
149; St. Louis Southwestern R. Co. v. Arkansas, 235 U.S. 350, 362; Mountain Timber
Co. v. Washington, 243 U.S. 219, 237. That operation and effect we think is clearly
shown by the record in this case. We are not concerned with mere errors of the trial
court, if there be such, in going beyond the direction of the statute as construed by
the Supreme Court of the State. It is thus important to note precisely the purpose
and effect of the statute as the state court has construed it.
First. The statute is not aimed at the redress of individual or private wrongs.
Remedies for libel remain available and unaffected. The statute, said the state court,
"is not directed at threatened libel, but at an existing business which, generally
speaking, involves more than libel." It is aimed at the distribution of scandalous
matter as "detrimental to public morals and to the general welfare," tending "to
disturb the peace of the community" and "to provoke assaults and the commission
of crime." In order to obtain an injunction to suppress the future publication of the
newspaper or periodical, it is not necessary to prove the falsity of the charges that
have been made in the publication condemned. In the present action, there was no
allegation that the matter published was not true. It is alleged, and the statute
requires the allegation, that the publication was "malicious." But, as in prosecutions
for libel, there is no requirement of proof by the State of malice in fact, as
distinguished from malice inferred from the mere publication of the defamatory
matter. [n2] The judgment in this case proceeded upon the mere proof of
publication. The statute permits the defense not of the truth alone, but only that the
truth was published with good motives and [p710] for justifiable ends. It is apparent
that, under the statute, the publication is to be regarded as defamatory if it injures
reputation, and that it is scandalous if it circulates charges of reprehensible conduct,
whether criminal or otherwise, and the publication is thus deemed to invite public
reprobation and to constitute a public scandal. The court sharply defined the
purpose of the statute, bringing out the precise point, in these words:
There is no constitutional right to publish a fact merely because it is true. It is a
matter of common knowledge that prosecutions under the criminal libel statutes do
not result in efficient repression or suppression of the evils of scandal. Men who are
the victims of such assaults seldom resort to the courts. This is especially true if
their sins are exposed and the only question relates to whether it was done with
good motives and for justifiable ends. This law is not for the protection of the person
attacked, nor to punish the wrongdoer. It is for the protection of the pubic welfare.
Second. The statute is directed not simply at the circulation of scandalous and
defamatory statements with regard to private citizens, but at the continued
publication by newspapers and periodicals of charges against public officers of
corruption, malfeasance in office, or serious neglect of duty. Such charges, by their
very nature, create a public scandal. They are scandalous and defamatory within the
meaning of the statute, which has its normal operation in relation to publications
dealing prominently and chiefly with the alleged derelictions of public officers. [n3]
[p711]
Third. The object of the statute is not punishment, in the ordinary sense, but
suppression of the offending newspaper or periodical. The reason for the enactment,
as the state court has said, is that prosecutions to enforce penal statutes for libel do
not result in "efficient repression or suppression of the evils of scandal." Describing
the business of publication as a public nuisance does not obscure the substance of
the proceeding which the statute authorizes. It is the continued publication of
scandalous and defamatory matter that constitutes the business and the declared
nuisance. In the case of public officers, it is the reiteration of charges of official
misconduct, and the fact that the newspaper or periodical is principally devoted to
that purpose, that exposes it to suppression. In the present instance, the proof was
that nine editions of the newspaper or periodical in question were published on
successive dates, and that they were chiefly devoted to charges against public
officers and in relation to the prevalence and protection of crime. In such a case,
these officers are not left to their ordinary remedy in a suit for libel, or the
authorities to a prosecution for criminal libel. Under this statute, a publisher of a
newspaper or periodical, undertaking to conduct a campaign to expose and to
censure official derelictions, and devoting his publication principally to that purpose,
must face not simply the possibility of a verdict against him in a suit or prosecution
for libel, but a determination that his newspaper or periodical is a public nuisance to
be abated, and that this abatement and suppression will follow unless he is prepared
with legal evidence to prove the truth of the charges and also to satisfy the court
that, in [p712] addition to being true, the matter was published with good motives
and for justifiable ends.
This suppression is accomplished by enjoining publication, and that restraint is the
object and effect of the statute.
Fourth. The statute not only operates to suppress the offending newspaper or
periodical, but to put the publisher under an effective censorship. When a
newspaper or periodical is found to be "malicious, scandalous, and defamatory," and
is suppressed as such, resumption of publication is punishable as a contempt of
court by fine or imprisonment. Thus, where a newspaper or periodical has been
suppressed because of the circulation of charges against public officers of official
misconduct, it would seem to be clear that the renewal of the publication of such
charges would constitute a contempt, and that the judgment would lay a permanent
restraint upon the publisher, to escape which he must satisfy the court as to the
character of a new publication. Whether he would be permitted again to publish
matter deemed to be derogatory to the same or other public officers would depend
upon the court's ruling. In the present instance, the judgment restrained the
defendants from
publishing, circulating, having in their possession, selling or giving away any
publication whatsoever which is a malicious, scandalous or defamatory newspaper,
as defined by law.
The law gives no definition except that covered by the words "scandalous and
defamatory," and publications charging official misconduct are of that class. While
the court, answering the objection that the judgment was too broad, saw no reason
for construing it as restraining the defendants "from operating a newspaper in
harmony with the public welfare to which all must yield," and said that the
defendants had not indicated "any desire to conduct their business in the usual and
legitimate manner," the manifest inference is that, at least with respect to a [p713]
new publication directed against official misconduct, the defendant would be held,
under penalty of punishment for contempt as provided in the statute, to a manner of
publication which the court considered to be "usual and legitimate" and consistent
with the public welfare.
If we cut through mere details of procedure, the operation and effect of the statute,
in substance, is that public authorities may bring the owner or publisher of a
newspaper or periodical before a judge upon a charge of conducting a business of
publishing scandalous and defamatory matter -- in particular, that the matter
consists of charges against public officers of official dereliction -- and, unless the
owner or publisher is able and disposed to bring competent evidence to satisfy the
judge that the charges are true and are published with good motives and for
justifiable ends, his newspaper or periodical is suppressed and further publication is
made punishable as a contempt. This is of the essence of censorship.
The question is whether a statute authorizing such proceedings in restraint of
publication is consistent with the conception of the liberty of the press as historically
conceived and guaranteed. In determining the extent of the constitutional
protection, it has been generally, if not universally, considered that it is the chief
purpose of the guaranty to prevent previous restraints upon publication. The
struggle in England, directed against the legislative power of the licenser, resulted in
renunciation of the censorship of the press. [n4] The liberty deemed to be
established was thus described by Blackstone:
The liberty of the press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications, and not in freedom from
censure for criminal matter when published. Every freeman has an [p714]
undoubted right to lay what sentiments he pleases before the public; to forbid this is
to destroy the freedom of the press; but if he publishes what is improper,
mischievous or illegal, he must take the consequence of his own temerity.
4 Bl.Com. 151, 152; see Story on the Constitution, 1884, 1889. The distinction
was early pointed out between the extent of the freedom with respect to censorship
under our constitutional system and that enjoyed in England. Here, as Madison said,
the great and essential rights of the people are secured against legislative as well as
against executive ambition. They are secured not by laws paramount to prerogative,
but by constitutions paramount to laws. This security of the freedom of the press
requires that it should be exempt not only from previous restraint by the Executive,
a in Great Britain, but from legislative restraint also.
Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said,
in Patterson v. Colorado, 205 U.S. 454, 462:
In the first place, the main purpose of such constitutional provisions is "to prevent all
such previous restraints upon publications as had been practiced by other
governments," and they do not prevent the subsequent punishment of such as may
be deemed contrary to the public welfare. Commonwealth v. Blanding, 3 Pick. 304,
313, 314; Respublica v. Oswald, 1 Dallas 319, 325. The preliminary freedom extends
as well to the false as to the true; the subsequent punishment may extend as well to
the true as to the false. This was the law of criminal libel apart from statute in most
cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150.
The criticism upon Blackstone's statement has not been because immunity from
previous restraint upon publication has not been regarded as deserving of special
emphasis, but chiefly because that immunity cannot be deemed to exhaust the
conception of the liberty guaranteed by [p715] state and federal constitutions. The
point of criticism has been "that the mere exemption from previous restraints cannot
be all that is secured by the constitutional provisions", and that
the liberty of the press might be rendered a mockery and a delusion, and the phrase
itself a byword, if, while every man was at liberty to publish what he pleased, the
public authorities might nevertheless punish him for harmless publications.
2 Cooley, Const.Lim., 8th ed., p. 885. But it is recognized that punishment for the
abuse of the liberty accorded to the press is essential to the protection of the public,
and that the common law rules that subject the libeler to responsibility for the public
offense, as well as for the private injury, are not abolished by the protection
extended in our constitutions. Id., pp. 883, 884. The law of criminal libel rests upon
that secure foundation. There is also the conceded authority of courts to punish for
contempt when publications directly tend to prevent the proper discharge of judicial
functions. Patterson v. Colorado, supra; Toledo Newspaper Co. v. United States, 247
U.S. 402, 419. [n5] In the present case, we have no occasion to inquire as to the
permissible scope of subsequent punishment. For whatever wrong the appellant has
committed or may commit by his publications the State appropriately affords both
public and private redress by its libel laws. As has been noted, the statute in
question does not deal with punishments; it provides for no punishment, except in
case of contempt for violation of the court's order, but for suppression and
injunction, that is, for restraint upon publication.
The objection has also been made that the principle as to immunity from previous
restraint is stated too [p716] broadly, if every such restraint is deemed to be
prohibited. That is undoubtedly true; the protection even as to previous restraint is
not absolutely unlimited. But the limitation has been recognized only in exceptional
cases:
When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight,
and that no Court could regard them as protected by any constitutional right.
Schenck v. United States, 249 U.S. 47, 52. No one would question but that a
government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.
[n6] On similar grounds, the primary requirements of decency may be enforced
against obscene publications. The security of the community life may be protected
against incitements to acts of violence and the overthrow by force of orderly
government. The constitutional guaranty of free speech does not
protect a man from an injunction against uttering words that may have all the effect
of force. Gompers v. Buck Stove & Range Co., 221 U.S. 418, 439.
Schenck v. United States, supra. These limitations are not applicable here. Nor are
we now concerned with questions as to the extent of authority to prevent
publications in order to protect private rights according to the principles governing
the exercise of the jurisdiction of courts of equity. [n7]
The exceptional nature of its limitations places in a strong light the general
conception that liberty of the press, historically considered and taken up by the
Federal Constitution, has meant, principally, although not exclusively, immunity from
previous restraints or censorship. The conception of the liberty of the press in this
country had broadened with the exigencies of the colonial [p717] period and with
the efforts to secure freedom from oppressive administration. [n8] That liberty was
especially cherished for the immunity it afforded from previous restraint of the
publication of censure of public officers and charges of official misconduct. As was
said by Chief Justice Parker, in Commonwealth v. Blanding, 3 Pick. 304, 313, with
respect to the constitution of Massachusetts:
Besides, it is well understood, and received as a commentary on this provision for
the liberty of the press, that it was intended to prevent all such previous restraints
upon publications as had been practiced by other governments, and in early times
here, to stifle the efforts of patriots towards enlightening their fellow subjects upon
their rights and the duties of rulers. The liberty of the press was to be unrestrained,
but he who used it was to be responsible in case of its abuse.
In the letter sent by the Continental Congress (October 26, 1774) to the Inhabitants
of Quebec, referring to the "five great rights," it was said: [n9]
The last right we shall mention regards the freedom of the press. The importance of
this consists, besides the advancement of truth, science, morality, and arts in
general, in its diffusion of liberal sentiments on the administration of Government,
its ready communication of thoughts between subjects, and its consequential
promotion of union among them whereby oppressive officers are shamed or
intimidated into more honourable and just modes of conducting affairs.
Madison, who was the leading spirit in the preparation of the First Amendment of the
Federal Constitution, thus described the practice and sentiment which led to the
guaranties of liberty of the press in state constitutions: [n10] [p718]
In every State, probably, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men of every description which has
not been confined to the strict limits of the common law. On this footing the freedom
of the press has stood; on this footing it yet stands. . . . Some degree of abuse is
inseparable from the proper use of everything, and in no instance is this more true
than in that of the press. It has accordingly been decided by the practice of the
States that it is better to leave a few of its noxious branches to their luxuriant
growth than, by pruning them away, to injure the vigour of those yielding the proper
fruits. And can the wisdom of this policy be doubted by any who reflect that to the
press alone, chequered as it is with abuses, the world is indebted for all the triumphs
which have been gained by reason and humanity over error and oppression; who
reflect that to the same beneficent source the United States owe much of the lights
which conducted them to the ranks of a free and independent nation, and which
have improved their political system into a shape so auspicious to their happiness?
Had "Sedition Acts," forbidding every publication that might bring the constituted
agents into contempt or disrepute, or that might excite the hatred of the people
against the authors of unjust or pernicious measures, been uniformly enforced
against the press, might not the United States have been languishing at this day
under the infirmities of a sickly Confederation? Might they not, possibly, be
miserable colonies, groaning under a foreign yoke?
The fact that, for approximately one hundred and fifty years, there has been almost
an entire absence of attempts to impose previous restraints upon publications
relating to the malfeasance of public officers is significant of the deep-seated
conviction that such restraints would violate constitutional right. Public officers,
whose character and [p719] conduct remain open to debate and free discussion in
the press, find their remedies for false accusations in actions under libel laws
providing for redress and punishment, and not in proceedings to restrain the
publication of newspapers and periodicals. The general principle that the
constitutional guaranty of the liberty of the press gives immunity from previous
restraints has been approved in many decisions under the provisions of state
constitutions. [n11]
The importance of this immunity has not lessened. While reckless assaults upon
public men, and efforts to bring obloquy upon those who are endeavoring faithfully
to discharge official duties, exert a baleful influence and deserve the severest
condemnation in public opinion, it cannot be said that this abuse is greater, and it is
believed to be less, than that which characterized the period in which our
institutions took shape. Meanwhile, the administration of government has become
more complex, the opportunities for malfeasance and corruption have multiplied,
crime has grown to most serious proportions, and the danger of its protection by
unfaithful officials and of the impairment of the fundamental security of life and
[p720] property by criminal alliances and official neglect, emphasizes the primary
need of a vigilant and courageous press, especially in great cities. The fact that the
liberty of the press may be abused by miscreant purveyors of scandal does not
make any the less necessary the immunity of the press from previous restraint in
dealing with official misconduct. Subsequent punishment for such abuses as may
exist is the appropriate remedy consistent with constitutional privilege.
In attempted justification of the statute, it is said that it deals not with publication
per se, but with the "business" of publishing defamation. If, however, the publisher
has a constitutional right to publish, without previous restraint, an edition of his
newspaper charging official derelictions, it cannot be denied that he may publish
subsequent editions for the same purpose. He does not lose his right by exercising
it. If his right exists, it may be exercised in publishing nine editions, as in this case,
as well as in one edition. If previous restraint is permissible, it may be imposed at
once; indeed, the wrong may be as serious in one publication as in several.
Characterizing the publication as a business, and the business as a nuisance, does
not permit an invasion of the constitutional immunity against restraint. Similarly, it
does not matter that the newspaper or periodical is found to be "largely" or "chiefly"
devoted to the publication of such derelictions. If the publisher has a right, without
previous restraint, to publish them, his right cannot be deemed to be dependent
upon his publishing something else, more or less, with the matter to which objection
is made.
Nor can it be said that the constitutional freedom from previous restraint is lost
because charges are made of derelictions which constitute crimes. With the
multiplying provisions of penal codes, and of municipal charters and ordinances
carrying penal sanctions, the conduct of [p721] public officers is very largely within
the purview of criminal statutes. The freedom of the press from previous restraint
has never been regarded as limited to such animadversions as lay outside the range
of penal enactments. Historically, there is no such limitation; it is inconsistent with
the reason which underlies the privilege, as the privilege so limited would be of
slight value for the purposes for which it came to be established.
The statute in question cannot be justified by reason of the fact that the publisher is
permitted to show, before injunction issues, that the matter published is true and is
published with good motives and for justifiable ends. If such a statute, authorizing
suppression and injunction on such a basis, is constitutionally valid, it would be
equally permissible for the legislature to provide that at any time the publisher of
any newspaper could be brought before a court, or even an administrative officer (as
the constitutional protection may not be regarded as resting on mere procedural
details) and required to produce proof of the truth of his publication, or of what he
intended to publish, and of his motives, or stand enjoined. If this can be done, the
legislature may provide machinery for determining in the complete exercise of its
discretion what are justifiable ends, and restrain publication accordingly. And it
would be but a step to a complete system of censorship. The recognition of authority
to impose previous restraint upon publication in order to protect the community
against the circulation of charges of misconduct, and especially of official
misconduct, necessarily would carry with it the admission of the authority of the
censor against which the constitutional barrier was erected. The preliminary
freedom, by virtue of the very reason for its existence, does not depend, as this
Court has said, on proof of truth. Patterson v. Colorado, supra.
Equally unavailing is the insistence that the statute is designed to prevent the
circulation of scandal which tends [p722] to disturb the public peace and to provoke
assaults and the commission of crime. Charges of reprehensible conduct, and in
particular of official malfeasance, unquestionably create a public scandal, but the
theory of the constitutional guaranty is that even a more serious public evil would be
caused by authority to prevent publication.
To prohibit the intent to excite those unfavorable sentiments against those who
administer the Government is equivalent to a prohibition of the actual excitement of
them, and to prohibit the actual excitement of them is equivalent to a prohibition of
discussions having that tendency and effect, which, again, is equivalent to a
protection of those who administer the Government, if they should at any time
deserve the contempt or hatred of the people, against being exposed to it by free
animadversions on their characters and conduct. [n12]
There is nothing new in the fact that charges of reprehensible conduct may create
resentment and the disposition to resort to violent means of redress, but this well
understood tendency did not alter the determination to protect the press against
censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung
v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:
If the township may prevent the circulation of a newspaper for no reason other than
that some of its inhabitants may violently disagree with it, and resent its circulation
by resorting to physical violence, there is no limit to what may be prohibited.
The danger of violent reactions becomes greater with effective organization of
defiant groups resenting exposure, and if this consideration warranted legislative
interference with the initial freedom of publication, the constitutional protection
would be reduced to a mere form of words.
For these reasons we hold the statute, so far as it authorized the proceedings in this
action under clause (b) [p723] of section one, to be an infringement of the liberty of
the press guaranteed by the Fourteenth Amendment. We should add that this
decision rests upon the operation and effect of the statute, without regard to the
question of the truth of the charges contained in the particular periodical. The fact
that the public officers named in this case, and those associated with the charges of
official dereliction, may be deemed to be impeccable cannot affect the conclusion
that the statute imposes an unconstitutional restraint upon publication. Judgment
reversed.
New York Times Co. v. United States, 403 U.S. 713 (1971)
The United States, which brought these actions to enjoin publication in the New York
Times and in the Washington Post of certain classified material, has not met the
"heavy burden of showing justification for the enforcement of such a [prior]
restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446
F.2d 1327, affirmed.
PER CURIAM
We granted certiorari in these cases in which the United States seeks to enjoin the
New York Times and the Washington Post from publishing the contents of a classified
study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp.
942, 943.
"Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372
U. S. 58, 372 U. S. 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The
Government "thus carries a heavy burden of showing justification for the imposition
of such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U.
S. 419 (1971). The District Court for the Southern District of New York, in the New
York Times case, and the District Court for the District of Columbia and the Court of
Appeals for the District of Columbia Circuit, in the Washington Post case, held that
the Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore
affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and
the case is remanded with directions to enter a judgment affirming the judgment of
the District Court for the Southern District of New York. The stays entered June 25,
1971, by the Court are vacated. The judgments shall issue forthwith.
So ordered.
* Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to
the United States Court of Appeals for the District of Columbia Circuit.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I adhere to the view that the Government's case against the Washington Post should
have been dismissed, and that the injunction against the New York Times should
have been vacated without oral argument when the cases were first presented to
this Court. I believe that every moment's continuance of the injunctions against
these newspapers amounts to a flagrant, indefensible, and continuing violation of
the First Amendment. Furthermore, after oral argument, I agree completely that we
must affirm the judgment of the Court of Appeals for the District of Columbia Circuit
and reverse the judgment of the Court of Appeals for the Second Circuit for the
reasons stated by my Brothers DOUGLAS and BRENNAN. In my view, it is
unfortunate that some of my Brethren are apparently willing to hold that the
publication of news may sometimes be enjoined. Such a holding would make a
shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill
of Rights, including the First Amendment, followed in 1791. Now, for the first time in
the 182 years since the founding of the Republic, the federal courts are asked to
hold that the First Amendment does not mean what it says, but rather means that
the Government can halt the publication of current news of vital importance to the
people of this country.
In seeking injunctions against these newspapers, and in its presentation to the
Court, the Executive Branch seems to have forgotten the essential purpose and
history of the First Amendment. When the Constitution was adopted, many people
strongly opposed it because the document contained no Bill of Rights to safeguard
certain basic freedoms. [Footnote 1] They especially feared that the new powers
granted to a central government might be interpreted to permit the government to
curtail freedom of religion, press, assembly, and speech. In response to an
overwhelming public clamor, James Madison offered a series of amendments to
satisfy citizens that these great liberties would remain safe and beyond the power of
government to abridge. Madison proposed what later became the First Amendment
in three parts, two of which are set out below, and one of which proclaimed:
"The people shall not be deprived or abridged of their right to speak, to write, or to
publish their sentiments, and the freedom of the press, as one of the great bulwarks
of liberty, shall be inviolable. [Footnote 2]"
(Emphasis added.) The amendments were offered to curtail and restrict the general
powers granted to the Executive, Legislative, and Judicial Branches two years before
in the original Constitution. The Bill of Rights changed the original Constitution into a
new charter under which no branch of government could abridge the people's
freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues
and some members of the Court appear to agree that the general powers of the
Government adopted in the original Constitution should be interpreted to limit and
restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can
imagine no greater perversion of history. Madison and the other Framers of the First
Amendment, able men that they were, wrote in language they earnestly believed
could never be misunderstood: "Congress shall make no law . . . abridging the
freedom . . . of the press. . . ." Both the history and language of the First Amendment
support the view that the press must be left free to publish news, whatever the
source, without censorship, injunctions, or prior restraints.
In the First Amendment, the Founding Fathers gave the free press the protection it
must have to fulfill its essential role in our democracy. The press was to serve the
governed, not the governors. The Government's power to censor the press was
abolished so that the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of government and inform
the people. Only a free and unrestrained press can effectively expose deception in
government. And paramount among the responsibilities of a free press is the duty to
prevent any part of the government from deceiving the people and sending them off
to distant lands to die of foreign fevers and foreign shot and shell. In my view, far
from deserving condemnation for their courageous reporting, the New York Times,
the Washington Post, and other newspapers should be commended for serving the
purpose that the Founding Fathers saw so clearly. In revealing the workings of
government that led to the Vietnam war, the newspapers nobly did precisely that
which the Founders hoped and trusted they would do.
The Government's case here is based on premises entirely different from those that
guided the Framers of the First Amendment. The Solicitor General has carefully and
emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well
known, and I certainly respect it. You say that no law means no law, and that should
be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law'
does not mean 'no law,' and I would seek to persuade the Court that that is true. . . .
[T]here are other parts of the Constitution that grant powers and responsibilities to
the Executive, and . . . the First Amendment was not intended to make it impossible
for the Executive to function or to protect the security of the United States.
[Footnote 3]"
And the Government argues in its brief that, in spite of the First Amendment,
"[t]he authority of the Executive Department to protect the nation against
publication of information whose disclosure would endanger the national security
stems from two interrelated sources: the constitutional power of the President over
the conduct of foreign affairs and his authority as Commander-in-Chief. [Footnote 4]"
In other words, we are asked to hold that, despite the First Amendment's emphatic
command, the Executive Branch, the Congress, and the Judiciary can make laws
enjoining publication of current news and abridging freedom of the press in the
name of "national security." The Government does not even attempt to rely on any
act of Congress. Instead, it makes the bold and dangerously far-reaching contention
that the courts should take it upon themselves to "make" a law abridging freedom of
the press in the name of equity, presidential power and national security, even when
the representatives of the people in Congress have adhered to the command of the
First Amendment and refused to make such a law. [Footnote 5] See concurring
opinion of MR. JUSTICE DOUGLAS, post at 403 U. S. 721-722. To find that the
President has "inherent power" to halt the publication of news by resort to the courts
would wipe out the First Amendment and destroy the fundamental liberty and
security of the very people the Government hopes to make "secure." No one can
read the history of the adoption of the First Amendment without being convinced
beyond any doubt that it was injunctions like those sought here that Madison and his
collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not be
invoked to abrogate the fundamental law embodied in the First Amendment. The
guarding of military and diplomatic secrets at the expense of informed
representative government provides no real security for our Republic. The Framers
of the First Amendment, fully aware of both the need to defend a new nation and the
abuses of the English and Colonial governments, sought to give this new society
strength and security by providing that freedom of speech, press, religion, and
assembly should not be abridged. This thought was eloquently expressed in 1937 by
Mr. Chief Justice Hughes -- great man and great Chief Justice that he was -- when the
Court held a man could not be punished for attending a meeting run by
Communists.
"The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need
to preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the end
that government may be responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the security of the
Republic, the very foundation of constitutional government. [Footnote 6]"
[Footnote 1]In introducing the Bill of Rights in the House of Representatives, Madison
said:
"[B]ut I believe that the great mass of the people who opposed [the Constitution]
disliked it because it did not contain effectual provisions against the encroachments
on particular rights. . . ."
1 Annals of Cong. 433. Congressman Goodhue added:
"[I]t is the wish of many of our constituents that something should be added to the
Constitution to secure in a stronger manner their liberties from the inroads of
power." [Footnote 2]
The other parts were:
"The civil rights of none shall be abridged on account of religious belief or worship,
nor shall any national religion be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretext, infringed."
"The people shall not be restrained from peaceably assembling and consulting for
their common good, nor from applying to the Legislature by petitions, or
remonstrances, for redress of their grievances."

1 Annals of Cong. 434.[Footnote 3]
Tr. of Oral Arg. 76.[Footnote 4]
Brief for the United States 13-14.[Footnote 5]
Compare the views of the Solicitor General with those of James Madison, the author
of the First Amendment. When speaking of the Bill of Rights in the House of
Representatives, Madison said:
"If they [the first ten amendments] are incorporated into the Constitution,
independent tribunals of justice will consider themselves in a peculiar manner the
guardians of those rights; they will be an impenetrable bulwark against every
assumption of power in the Legislative or Executive; they will be naturally led to
resist every encroachment upon rights expressly stipulated for in the Constitution by
the declaration of rights."
1 Annals of Cong. 439.[Footnote 6]
De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
While I join the opinion of the Court, I believe it necessary to express my views more
fully.
It should be noted at the outset that the First Amendment provides that "Congress
shall male no law . . . abridging the freedom of speech, or of the press." That leaves,
in my view, no room for governmental restraint on the press. [Footnote 2/1]
There is, moreover, no statute barring the publication by the press of the material
which the Times and the Post seek to use. Title 18 U.S.C. 793(e) provides that
"[w]hoever having unauthorized possession of, access to, or control over any
document, writing . . . or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates . . .
the same to any person not entitled to receive it . . . [s]hall be fined not more than
$10,000 or imprisoned not more than ten years, or both."
The Government suggests that the word "communicates" is broad enough to
encompass publication.
There are eight sections in the chapter on espionage and censorship, 792-799. In
three of those eight, "publish" is specifically mentioned: 794(b) applies to
"Whoever, in time of war, with intent that the same shall be communicated to the
enemy, collects, records, publishes, or communicates . . . [the disposition of armed
forces]."
Section 797 applies to whoever "reproduces, publishes, sells, or gives away"
photographs of defense installations.
Section 798, relating to cryptography, applies to whoever: "communicates,
furnishes, transmits, or otherwise makes available . . . or publishes" the described
material. [Footnote 2/2] (Emphasis added.)
Thus, it is apparent that Congress was capable of, and did, distinguish between
publishing and communication in the various sections of the Espionage Act.
The other evidence that 793 does not apply to the press is a rejected version of
793. That version read:
"During any national emergency resulting from a war to which the United States is a
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information
relating to the national defense which, in his judgment, is of such character that it is
or might be useful to the enemy."
55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was
specifically cited, and that provision was defeated. 55 Cong.Rec. 2167.
Judge Gurfein's holding in the Times case that this Act does not apply to this case
was therefore preeminently sound. Moreover, the Act of September 23, 1950, in
amending 18 U.S.C. 793 states in 1(b) that:
"Nothing in this Act shall be construed to authorize, require, or establish military or
civilian censorship or in any way to limit or infringe upon freedom of the press or of
speech as guaranteed by the Constitution of the United States and no regulation
shall be promulgated hereunder having that effect."
64 Stat. 987. Thus, Congress has been faithful to the command of the First
Amendment in this area.
So any power that the Government possesses must come from its "inherent power."
The power to wage war is "the power to wage war successfully." See Hirabayashi v.
United States, 320 U. S. 81, 320 U. S. 93. But the war power stems from a
declaration of war. The Constitution by Art. I, 8, gives Congress, not the President,
power "[t]o declare War." Nowhere are presidential wars authorized. We need not
decide, therefore, what leveling effect the war power of Congress might have.
These disclosures [Footnote 2/3] may have a serious impact. But that is no basis for
sanctioning a previous restraint on the press. As stated by Chief Justice Hughes in
Near v. Minnesota, 283 U. S. 697, 283 U. S. 719-720:
"While reckless assaults upon public men, and efforts to bring obloquy upon those
who are endeavoring faithfully to discharge official duties, exert a baleful influence
and deserve the severest condemnation in public opinion, it cannot be said that this
abuse is greater, and it is believed to be less, than that which characterized the
period in which our institutions took shape. Meanwhile, the administration of
government has become more complex, the opportunities for malfeasance and
corruption have multiplied, crime has grown to most serious proportions, and the
danger of its protection by unfaithful officials and of the impairment of the
fundamental security of life and property by criminal alliances and official neglect,
emphasizes the primary need of a vigilant and courageous press, especially in great
cities. The fact that the liberty of the press may be abused by miscreant purveyors
of scandal does not make any the less necessary the immunity of the press from
previous restraint in dealing with official misconduct."
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.
S. 415, 402 U. S. 419, "[a]ny prior restraint on expression comes to this Court with a
"heavy presumption" against its constitutional validity."

The Government says that it has inherent powers to go into court and obtain an
injunction to protect the national interest, which, in this case, is alleged to be
national security.
Near v. Minnesota, 283 U. S. 697, repudiated that expansive doctrine in no uncertain
terms.
The dominant purpose of the First Amendment was to prohibit the widespread
practice of governmental suppression of embarrassing information. It is common
knowledge that the First Amendment was adopted against the widespread use of the
common law of seditious libel to punish the dissemination of material that is
embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of
Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941).
The present cases will, I think, go down in history as the most dramatic illustration of
that principle. A debate of large proportions goes on in the Nation over our posture
in Vietnam. That debate antedated the disclosure of the contents of the present
documents. The latter are highly relevant to the debate in progress.
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic
errors. Open debate and discussion of public issues are vital to our national health.
On public questions, there should be "uninhibited, robust, and wide-open" debate.
New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269-270.
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay
of the Court of Appeals in the Times case, and direct that it affirm the District Court.
The stays in these cases that have been in effect for more than a week constitute a
flouting of the principles of the First Amendment as interpreted in Near v. Minnesota.
[Footnote 2/1]
See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 267 (dissenting opinion of MR.
JUSTICE BLACK), 284 (my dissenting opinion); Roth v. United States, 354 U. S. 476,
354 U. S. 508 (my dissenting opinion which MR. JUSTICE BLACK joined); Yates v.
United States, 354 U. S. 298, 354 U. S. 339 (separate opinion of MR. JUSTICE BLACK
which I joined); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293
(concurring opinion of MR. JUSTICE BLACK which I joined); Garrison v. Louisiana, 379
U. S. 64, 379 U. S. 80 (my concurring opinion which MR. JUSTICE BLACK joined).
[Footnote 2/2]
These documents contain data concerning the communications system of the United
States, the publication of which is made a crime. But the criminal sanction is not
urged by the United States as the basis of equity power. [Footnote 2/3]
There are numerous sets of this material in existence, and they apparently are not
under any controlled custody. Moreover, the President has sent a set to the
Congress. We start, then, with a case where there already is rather wide distribution
of the material that is destined for publicity, not secrecy. I have gone over the
material listed in the in camera brief of the United States. It is all history, not future
events. None of it is more recent than 1968.
MR. JUSTICE BRENNAN, concurring.
I basis upon which that aid is sought to scrutiny by the judiciary. And, therefore, every
I write separately in these cases only to emphasize what should be apparent: that
our judgments in the present cases may not be taken to indicate the propriety, in
the future, of issuing temporary stays and restraining
Page 403 U. S. 725
orders to block the publication of material sought to be suppressed by the
Government. So far as I can determine, never before has the United States sought to
enjoin a newspaper from publishing information in its possession. The relative
novelty of the questions presented, the necessary haste with which decisions were
reached, the magnitude of the interests asserted, and the fact that all the parties
have concentrated their arguments upon the question whether permanent restraints
were proper may have justified at least some of the restraints heretofore imposed in
these cases. Certainly it is difficult to fault the several courts below for seeking to
assure that the issues here involved were preserved for ultimate review by this
Court. But even if it be assumed that some of the interim restraints were proper in
the two cases before us, that assumption has no bearing upon the propriety of
similar judicial action in the future. To begin with, there has now been ample time for
reflection and judgment; whatever values there may be in the preservation of novel
questions for appellate review may not support any restraints in the future. More
important, the First Amendment stands as an absolute bar to the imposition of
judicial restraints in circumstances of the kind presented by these cases.
II
The error that has pervaded these cases from the outset was the granting of any
injunctive relief whatsoever, interim or otherwise. The entire thrust of the
Government's claim throughout these cases has been that publication of the
material sought to be enjoined "could," or "might," or "may" prejudice the national
interest in various ways. But the First Amendment tolerates absolutely no prior
judicial restraints of the press predicated upon surmise or conjecture that untoward
consequences may result.* Our cases, it is true, have indicated that there is a single,
extremely narrow class of cases in which the First Amendment's ban on prior judicial
restraint may be overridden. Our cases have thus far indicated that such cases may
arise only when the Nation "is at war," Schenck v. United States, 249 U. S. 47, 249 U.
S. 52 (1919), during which times
"[n]o one would question but that a government might prevent actual obstruction to
its recruiting service or the publication of the sailing dates of transports or the
number and location of troops."
Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931). Even if the present world
situation were assumed to be tantamount to a time of war, or if the power of
presently available armaments would justify even in peacetime the suppression of
information that would set in motion a nuclear holocaust, in neither of these actions
has the Government presented or even alleged that publication of items from or
based upon the material at issue would cause the happening of an event of that
nature. "[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent
previous restraints upon publication." Near v. Minnesota, supra, at 283 U. S. 713.
Thus, only governmental allegation and proof that publication must inevitably,
directly, and immediately cause the occurrence of an event kindred to imperiling the
safety of a transport already at sea can support even the issuance of an interim
restraining order. In no event may mere conclusions be sufficient, for if the Executive
Branch seeks judicial aid in preventing publication, it must inevitably submit the
restraint issued in this case, whatever its form, has violated the First Amendment --
and not less so because that restraint was justified as necessary to afford the courts
an opportunity to examine the claim more thoroughly. Unless and until the
Government has clearly made out its case, the First Amendment commands that no
injunction may issue.
* Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding temporary
restraints of allegedly obscene materials are not in point. For those cases rest upon
the proposition that "obscenity is not protected by the freedoms of speech and
press." Roth v. United States, 354 U. S. 476, 354 U. S. 481 (1957). Here there is no
question but that the material sought to be suppressed is within the protection of
the First Amendment; the only question is whether, notwithstanding that fact, its
publication may be enjoined for a time because of the presence of an overwhelming
national interest. Similarly, copyright cases have no pertinence here: the
Government is not asserting an interest in the particular form of words chosen in the
documents, but is seeking to suppress the ideas expressed therein. And the
copyright laws, of course, protect only the form of expression, and not the ideas
expressed.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
In the governmental structure created by our Constitution, the Executive is endowed
with enormous power in the two related areas of national defense and international
relations. This power, largely unchecked by the Legislative [Footnote 3/1] and
Judicial [Footnote 3/2] branches, has been pressed to the very hilt since the advent
of the nuclear missile age. For better or for worse, the simple fact is that a
President of the United States possesses vastly greater constitutional independence
in these two vital areas of power than does, say, a prime minister of a country with a
parliamentary form of government.
In the absence of the governmental checks and balances present in other areas of
our national life, the only effective restraint upon executive policy and power in the
areas of national defense and international affairs may lie in an enlightened citizenry
-- in an informed and critical public opinion which alone can here protect the values
of democratic government. For this reason, it is perhaps here that a press that is
alert, aware, and free most vitally serves the basic purpose of the First Amendment.
For, without an informed and free press, there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international diplomacy and the
maintenance of an effective national defense require both confidentiality and
secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual
trust unless they can be assured that their confidences will be kept. And, within our
own executive departments, the development of considered and intelligent
international policies would be impossible if those charged with their formulation
could not communicate with each other freely, frankly, and in confidence. In the
area of basic national defense, the frequent need for absolute secrecy is, of course,
self-evident.
I think there can be but one answer to this dilemma, if dilemma it be. The
responsibility must be where the power is. [Footnote 3/3] If the Constitution gives
the Executive a large degree of unshared power in the conduct of foreign affairs and
the maintenance of our national defense, then, under the Constitution, the Executive
must have the largely unshared duty to determine and preserve the degree of
internal security necessary to exercise that power successfully. It is an awesome
responsibility, requiring judgment and wisdom of a high order. I should suppose that
moral, political, and practical considerations would dictate that a very first principle
of that wisdom would be an insistence upon avoiding secrecy for its own sake. For
when everything is classified, then nothing is classified, and the system becomes
one to be disregarded by the cynical or the careless, and to be manipulated by those
intent on self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the maximum
possible disclosure, recognizing that secrecy can best be preserved only when
credibility is truly maintained. But, be that as it may, it is clear to me that it is the
constitutional duty of the Executive -- as a matter of sovereign prerogative, and not
as a matter of law as the courts know law -- through the promulgation and
enforcement of executive regulations, to protect the confidentiality necessary to
carry out its responsibilities in the fields of international relations and national
defense.
This is not to say that Congress and the courts have no role to play. Undoubtedly,
Congress has the power to enact specific and appropriate criminal laws to protect
government property and preserve government secrets. Congress has passed such
laws, and several of them are of very colorable relevance to the apparent
circumstances of these cases. And if a criminal prosecution is instituted, it will be the
responsibility of the courts to decide the applicability of the criminal law under which
the charge is brought. Moreover, if Congress should pass a specific law authorizing
civil proceedings in this field, the courts would likewise have the duty to decide the
constitutionality of such a law, as well as its applicability to the facts proved.
But in the cases before us, we are asked neither to construe specific regulations nor
to apply specific laws. We are asked, instead, to perform a function that the
Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to
prevent the publication by two newspapers of material that the Executive Branch
insists should not, in the national interest, be published. I am convinced that the
Executive is correct with respect to some of the documents involved. But I cannot
say that disclosure of any of them will surely result in direct, immediate, and
irreparable damage to our Nation or its people. That being so, there can under the
First Amendment be but one judicial resolution of the issues before us. I join the
judgments of the Court. [Footnote 3/1]
The President's power to make treaties and to appoint ambassadors is, of course,
limited by the requirement of Art. II, 2, of the Constitution that he obtain the advice
and consent of the Senate. Article I, 8, empowers Congress to "raise and support
Armies," and "provide and maintain a Navy." And, of course, Congress alone can
declare war. This power was last exercised almost 30 years ago at the inception of
World War II. Since the end of that war in 1945, the Armed Forces of the United
States have suffered approximately half a million casualties in various parts of the
world. [Footnote 3/2]
See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103; Hirabayashi
v. United States, 320 U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S. 304;
cf. Mora v. McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862, cert. denied, 389 U. S.
934. [Footnote 3/3]
"It is quite apparent that, if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord to
the President a degree of discretion and freedom from statutory restriction which
would not be admissible were domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of diplomatic, consular and
other officials. Secrecy in respect of information gathered by them may be highly
necessary, and the premature disclosure of it productive of harmful results. Indeed,
so clearly is this true that the first President refused to accede to a request to lay
before the House of Representatives the instructions, correspondence and
documents relating to the negotiation of the Jay Treaty -- a refusal the wisdom of
which was recognized by the House itself, and has never since been doubted. . . ."
United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 320.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
I concur in today's judgments, but only because of the concededly extraordinary
protection against prior restraints enjoyed by the press under our constitutional
system. I do not say that in no circumstances would the First Amendment permit an
injunction against publishing information about government plans or operations.
[Footnote 4/1] Nor, after examining the materials the Government characterizes as
the most sensitive and destructive, can I deny that revelation of these documents
will do substantial damage to public interests. Indeed, I am confident that their
disclosure will have that result. But I nevertheless agree that the United States has
not satisfied the very heavy burden that it must meet to warrant an injunction
against publication in these cases, at least in the absence of express and
appropriately limited congressional authorization for prior restraints in
circumstances such as these.
The Government's position is simply stated: the responsibility of the Executive for
the conduct of the foreign affairs and for the security of the Nation is so basic that
the President is entitled to an injunction against publication of a newspaper story
whenever he can convince a court that the information to be revealed threatens
"grave and irreparable" injury to the public interest; [Footnote 4/2] and the
injunction should issue whether or not the material to be published is classified,
whether or not publication would be lawful under relevant criminal statutes enacted
by Congress, and regardless of the circumstances by which the newspaper came
into possession of the information. At least in the absence of legislation by Congress,
based on its own investigations and findings, I am quite unable to agree that the
inherent powers of the Executive and the courts reach so far as to authorize
remedies having such sweeping potential for inhibiting publications by the press.
Much of the difficulty inheres in the "grave and irreparable danger" standard
suggested by the United States. If the United States were to have judgment under
such a standard in these cases, our decision would be of little guidance to other
courts in other cases, for the material at issue here would not be available from the
Court's opinion or from public records, nor would it be published by the press.
Indeed, even today, where we hold that the United States has not met its burden,
the material remains sealed in court records and it is properly not discussed in
today's opinions. Moreover, because the material poses substantial dangers to
national interests, and because of the hazards of criminal sanctions, a responsible
press may choose never to publish the more sensitive materials. To sustain the
Government in these cases would start the courts down a long and hazardous road
that I am not willing to travel, at least without congressional guidance and direction.
It is not easy to reject the proposition urged by the United States, and to deny relief
on its good faith claims in these cases that publication will work serious damage to
the country. But that discomfiture is considerably dispelled by the infrequency of
prior-restraint cases. Normally, publication will occur and the damage be done
before the Government has either opportunity or grounds for suppression. So here,
publication has already begun, and a substantial part of the threatened damage has
already occurred. The fact of a massive breakdown in security is known, access to
the documents by many unauthorized people is undeniable, and the efficacy of
equitable relief against these or other newspapers to avert anticipated damage is
doubtful, at best.
What is more, terminating the ban on publication of the relatively few sensitive
documents the Government now seeks to suppress does not mean that the law
either requires or invites newspapers or others to publish them, or that they will be
immune from criminal action if they do. Prior restraints require an unusually heavy
justification under the First Amendment, but failure by the Government to justify
prior restraints does not measure its constitutional entitlement to a conviction for
criminal publication. That the Government mistakenly chose to proceed by injunction
does not mean that it could not successfully proceed in another way.
When the Espionage Act was under consideration in 1917, Congress eliminated from
the bill a provision that would have given the President broad powers in time of war
to proscribe, under threat of criminal penalty, the publication of various categories
of information related to the national defense. [Footnote 4/3] Congress at that time
was unwilling to clothe the President with such far-reaching powers to monitor the
press, and those opposed to this part of the legislation assumed that a necessary
concomitant of such power was the power to "filter out the news to the people
through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these
same members of Congress appeared to have little doubt that newspapers would be
subject to criminal prosecution if they insisted on publishing information of the type
Congress had itself determined should not be revealed. Senator Ashurst, for
example, was quite sure that the editor of such a newspaper
"should be punished if he did publish information as to the movements of the fleet,
the troops, the aircraft, the location of powder factories, the location of defense
works, and all that sort of thing."
Id. at 2009. [Footnote 4/4]
The Criminal Code contains numerous provisions potentially relevant to these cases.
Section 797 [Footnote 4/5] makes it a crime to publish certain photographs or
drawings of military installations. Section 798, [Footnote 4/6] also in precise
language, proscribes knowing and willful publication of any classified information
concerning the cryptographic systems or communication intelligence activities of
the United States, as well as any information obtained from communication
intelligence operations. [Footnote 4/7] If any of the material here at issue is of this
nature, the newspapers are presumably now on full notice of the position of the
United States, and must face the consequences if they publish. I would have no
difficulty in sustaining convictions under these sections on facts that would not
justify the intervention of equity and the imposition of a prior restraint.
The same would be true under those sections of the Criminal Code casting a wider
net to protect the national defense. Section 793(e) [Footnote 4/8] makes it a criminal
act for any unauthorized possessor of a document "relating to the national defense"
either (1) willfully to communicate or cause to be communicated that document to
any person not entitled to receive it or (2) willfully to retain the document and fail to
deliver it to an officer of the United States entitled to receive it. The subsection was
added in 1950 because preexisting law provided no penalty for the unauthorized
possessor unless demand for the documents was made. [Footnote 4/9]
"The dangers surrounding the unauthorized possession of such items are self-
evident, and it is deemed advisable to require their surrender in such a case,
regardless of demand, especially since their unauthorized possession may be
unknown to the authorities who would otherwise make the demand."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before
us, the unpublished documents have been demanded by the United States, and
their import has been made known at least to counsel for the newspapers involved.
In Gorin v. United States, 312 U. S. 19, 312 U. S. 28 (1941), the words "national
defense" as used in a predecessor of 793 were held by a unanimous Court to have
"a well understood connotation" -- a "generic concept of broad connotations,
referring to the military and naval establishments and the related activities of
national preparedness" -- and to be "sufficiently definite to apprise the public of
prohibited activities" and to be consonant with due process. 312 U.S. at 312 U. S. 28.
Also, as construed by the Court in Gorin, information "connected with the national
defense" is obviously not limited to that threatening "grave and irreparable" injury to
the United States. [Footnote 4/10]
It is thus clear that Congress has addressed itself to the problems of protecting the
security of the country and the national defense from unauthorized disclosure of
potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 343 U. S. 585-586 (1952); see also id. at 343 U. S. 593-628 (Frankfurter, J.,
concurring). It has not, however, authorized the injunctive remedy against
threatened publication. It has apparently been satisfied to rely on criminal sanctions
and their deterrent effect on the responsible, as well as the irresponsible, press. I am
not, of course, saying that either of these newspapers has yet committed a crime, or
that either would commit a crime if it published all the material now in its
possession. That matter must await resolution in the context of a criminal
proceeding if one is instituted by the United States. In that event, the issue of guilt
or innocence would be determined by procedures and standards quite different from
those that have purported to govern these injunctive proceedings. [Footnote 4/1]
The Congress has authorized a strain of prior restraints against private parties in
certain instances. The National Labor Relations Board routinely issues cease and
desist orders against employers who it finds have threatened or coerced employees
in the exercise of protected rights. See 29 U.S.C. 160(c). Similarly, the Federal
Trade Commission is empowered to impose cease and desist orders against unfair
methods of competition. 15 U.S.C. 45(b). Such orders can, and quite often do,
restrict what may be spoken or written under certain circumstances. See, e.g., NLRB
v. Gissel Packing Co., 395 U. S. 575, 395 U. S. 616-620 (1969). Article I, 8, of the
Constitution authorizes Congress to secure the "exclusive right" of authors to their
writings, and no one denies that a newspaper can properly be enjoined from
publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co.,
249 U. S. 100 (1919). Newspapers do themselves rely from time to time on the
copyright as a means of protecting their accounts of important events. However,
those enjoined under the statutes relating to the National Labor Relations Board and
the Federal Trade Commission are private parties, not the press, and, when the press
is enjoined under the copyright laws, the complainant is a private copyright holder
enforcing a private right. These situations are quite distinct from the Government's
request for an injunction against publishing information about the affairs of
government, a request admittedly not based on any statute.
[Footnote 4/2]
The "grave and irreparable danger" standard is that asserted by the Government in
this Court. In remanding to Judge Gurfein for further hearings in the Times litigation,
five members of the Court of Appeals for the Second Circuit directed him to
determine whether disclosure of certain items specified with particularity by the
Government would "pose such grave and immediate danger to the security of the
United States as to warrant their publication being enjoined."
[Footnote 4/3]
"Whoever, in time of war, in violation of reasonable regulations to be prescribed by
the President, which he is hereby authorized to make and promulgate, shall publish
any information with respect to the movement, numbers, description, condition, or
disposition of any of the armed forces, ships, aircraft, or war materials of the United
States, or with respect to the plans or conduct of any naval or military operations, or
with respect to any works or measures undertaken for or connected with, or
intended for the fortification or defense of any place, or any other information
relating to the public defense calculated to be useful to the enemy, shall be
punished by a fine . . . or by imprisonment. . . ."
55 Cong.Rec. 2100.[Footnote 4/4]
Senator Ashurst also urged that
"'freedom of the press' means freedom from the restraints of a censor, means the
absolute liberty and right to publish whatever you wish; but you take your chances
of punishment in the courts of your country for the violation of the laws of libel,
slander, and treason."
55 Cong.Rec. 2005.[Footnote 4/5]
Title 18 U.S.C. 797 provides:
"On and after thirty days from the date upon which the President defines any vital
military or naval installation or equipment as being within the category
contemplated under section 795 of this title, whoever reproduces, publishes, sells,
or gives away any photograph, sketch, picture, drawing, map, or graphical
representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer of the military or naval
post, camp, or station concerned, or higher authority, unless such photograph,
sketch, picture, drawing, map, or graphical representation has clearly indicated
thereon that it has been censored by the proper military or naval authority, shall be
fined not more than $1,000 or imprisoned not more than one year, or both."
[Footnote 4/6]
In relevant part 18 U.S.C. 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or
otherwise makes available to an unauthorized person, or publishes, or uses in any
manner prejudicial to the safety or interest of the United States or for the benefit of
any foreign government to the detriment of the United States any classified
information -- "
"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic
system of the United States or any foreign government; or"
"(2) concerning the design, construction, use, maintenance, or repair of any device,
apparatus, or appliance used or prepared or planned for use by the United States or
any foreign government for cryptographic or communication intelligence purposes;
or"
"(3) concerning the communication intelligence activities of the United States or any
foreign government; or"
"(4) obtained by the process of communication intelligence from the
communications of any foreign government, knowing the same to have been
obtained by such processes -- "
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or
both."[Footnote 4/7]
The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the
bill, in identical terms, speak of furthering the security of the United States by
preventing disclosure of information concerning the cryptographic systems and the
communication intelligence systems of the United States, and explaining that
"[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in
the transmission by this Nation of enciphered or coded messages. . . . Further, it
makes it a crime to reveal methods used by this Nation in breaking the secret codes
of a foreign nation. It also prohibits under certain penalties the divulging of any
information which may have come into this Government's hands as a result of such
a code-breaking."
H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute
was explained as covering "only a small category of classified matter, a category
which is both vital and vulnerable to an almost unique degree." Id. at 2. Existing
legislation was deemed inadequate.
"At present, two other acts protect this information, but only in a limited way. These
are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat.
122). Under the first, unauthorized revelation of information of this kind can be
penalized only if it can be proved that the person making the revelation did so with
an intent to injure the United States. Under the second, only diplomatic codes and
messages transmitted in diplomatic codes are protected. The present bill is designed
to protect against knowing and willful publication or any other revelation of all
important information affecting the United States communication intelligence
operations and all direct information about all United States codes and ciphers."
Ibid. Section 798 obviously was intended to cover publications by nonemployees of
the Government, and to ease the Government's burden in obtaining convictions. See
H.R.Rep. No. 1895, supra, at 2-5. The identical Senate Report, not cited in parallel in
the text of this footnote, is S.Rep. No. 111, 81st Cong., 1st Sess. (1949). [Footnote
4/8]
Section 793(e) of 18 U.S.C. provides that:
"(e) Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national defense, or information relating to the national defense which information
the possessor has reason to believe could be used to the injury of the United States
or to the advantage of any foreign nation, willfully communicates, delivers, transmits
or causes to be communicated, delivered, or transmitted, or attempts to
communicate, deliver, transmit or cause to be communicated, delivered, or
transmitted the same to any person not entitled to receive it, or willfully retains the
same and fails to deliver it to the officer or employee of the United States entitled to
receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It
should also be noted that 18 U.S.C. 793(g), added in 1950 (see 64 Stat. 1004;
S.Rep. No. 239, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that,
"[i]f two or more persons conspire to violate any of the foregoing provisions of this
section, and one or more of such persons do any act to effect the object of the
conspiracy, each of the parties to such conspiracy shall be subject to the
punishment provided for the offense which is the object of such conspiracy."
[Footnote 4/9]
The amendment of 793 that added subsection (e) was part of the Subversive
Activities Control Act of 1950, which was, in turn, Title I of the Internal Security Act of
1950. See 64 Stat. 987. The report of the Senate Judiciary Committee best explains
the purposes of the amendment:
"Section 18 of the bill amends section 793 of title 18 of the United States Code
(espionage statute). The several paragraphs of section 793 of title 18 are designated
as subsections (a) through (g) for purposes of convenient reference. The significant
changes which would be made in section 793 of title 18 are as follows: "
"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the
unlawful dissemination of 'information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation.' The phrase 'which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation' would modify only
'information relating to the national defense,' and not the other items enumerated in
the subsection. The fourth paragraph of section 793 is also amended to provide that
only those with lawful possession of the items relating to national defense
enumerated therein may retain them subject to demand therefor. Those who have
unauthorized possession of such items are treated in a separate subsection."
"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized
possessors of items enumerated in paragraph 4 of section 793 must surrender
possession thereof to the proper authorities without demand. Existing law provides
no penalty for the unauthorized possession of such items unless a demand for them
is made by the person entitled to receive them. The dangers surrounding the
unauthorized possession of such items are self-evident, and it is deemed advisable
to require their surrender in such a case, regardless of demand, especially since
their unauthorized possession may be unknown to the authorities who would
otherwise make the demand. The only difference between subsection (d) and
subsection (e) of section 793 is that a demand by the person entitled to receive the
items would be a necessary element of an offense under subsection (d) where the
possession is lawful, whereas such a demand would not be a necessary element of
an offense under subsection (e) where the possession is unauthorized."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the District Court for
the Southern District of New York in this case, that, in prosecuting for
communicating or withholding a "document," as contrasted with similar action with
respect to "information," the Government need not prove an intent to injure the
United States or to benefit a foreign nation, but only willful and knowing conduct.
The District Court relied on Gorin v. United States, 312 U. S. 19 (1941). But that case
arose under other parts of the predecessor to 793, see 312 U.S. at 312 U. S. 21-22
-- parts that imposed different intent standards not repeated in 793(d) or 793(e).
Cf. 18 U.S.C. 793(a), (b), and (c). Also, from the face of subsection (e) and from
the context of the Act of which it was a part, it seems undeniable that a newspaper,
as well as others unconnected with the Government, are vulnerable to prosecution
under 793(e) if they communicate or withhold the materials covered by that
section. The District Court ruled that "communication" did not reach publication by a
newspaper of documents relating to the national defense. I intimate no views on the
correctness of that conclusion. But neither communication nor publication is
necessary to violate the subsection. [Footnote 4/10]
Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the
collection or publication, with intent that it shall be communicated to the enemy, of
any information with respect to the movements of military forces,
"or with respect to the plans or conduct . . . of any naval or military operations . . . or
any other information relating to the public defense, which might be useful to the
enemy. . . ."
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases is whether, in a suit by
the United States, "the First Amendment bars a court from prohibiting a newspaper
from publishing material whose disclosure would pose a 'grave and immediate
danger to the security of the United States.' " Brief for the United States 7. With all
due respect, I believe the ultimate issue in these cases is even more basic than the
one posed by the Solicitor General. The issue is whether this Court or the Congress
has the power to make law.
In these cases, there is no problem concerning the President's power to classify
information as "secret" or "top secret." Congress has specifically recognized
Presidential authority, which has been formally exercised in Exec.Order 10501
(1953), to classify documents and information. See, e.g., 18 U.S.C. 798; 50 U.S.C.
783. [Footnote 5/1] Nor is there any issue here regarding the President's power as
Chief Executive and Commander in Chief to protect national security by disciplining
employees who disclose information and by taking precautions to prevent leaks.
The problem here is whether, in these particular cases, the Executive Branch has
authority to invoke the equity jurisdiction of the courts to protect what it believes to
be the national interest. See In re Debs, 158 U. S. 564, 158 U. S. 584 (1895). The
Government argues that, in addition to the inherent power of any government to
protect itself, the President's power to conduct foreign affairs and his position as
Commander in Chief give him authority to impose censorship on the press to protect
his ability to deal effectively with foreign nations and to conduct the military affairs
of the country. Of course, it is beyond cavil that the President has broad powers by
virtue of his primary responsibility for the conduct of our foreign affairs and his
position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U. S. 103 (1948); Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 93
(1943); United States v. Curtiss
Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in some situations, it may be
that, under whatever inherent powers the Government may have, as well as the
implicit authority derived from the President's mandate to conduct foreign affairs
and to act as Commander in Chief, there is a basis for the invocation of the equity
jurisdiction of this Court as an aid to prevent the publication of material damaging to
"national security," however that term may be defined.
It would, however, be utterly inconsistent with the concept of separation of powers
for this Court to use its power of contempt to prevent behavior that Congress has
specifically declined to prohibit. There would be a similar damage to the basic
concept of these co-equal branches of Government if, when the Executive Branch
has adequate authority granted by Congress to protect "national security," it can
choose, instead, to invoke the contempt power of a court to enjoin the threatened
conduct. The Constitution provides that Congress shall make laws, the President
execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579 (1952). It did not provide for government by injunction in which the
courts and the Executive Branch can "make law" without regard to the action of
Congress. It may be more convenient for the Executive Branch if it need only
convince a judge to prohibit conduct, rather than ask the Congress to pass a law,
and it may be more convenient to enforce a contempt order than to seek a criminal
conviction in a jury trial. Moreover, it may be considered politically wise to get a
court to share the responsibility for arresting those who the Executive Branch has
probable cause to believe are violating the law. But convenience and political
considerations of the moment do not justify a basic departure from the principles of
our system of government.
In these cases, we are not faced with a situation where Congress has failed to
provide the Executive with broad power to protect the Nation from disclosure of
damaging state secrets. Congress has, on several occasions, given extensive
consideration to the problem of protecting the military and strategic secrets of the
United States. This consideration has resulted in the enactment of statutes making it
a crime to receive, disclose, communicate, withhold, and publish certain documents,
photographs, instruments, appliances, and information. The bulk of these statutes is
found in chapter 37 of U.S.C. Title 18, entitled Espionage and Censorship. [Footnote
5/3] In that chapter, Congress has provided penalties ranging from a $10,000 fine to
death for violating the various statutes.
Thus, it would seem that in order for this Court to issue an injunction it would require
a showing that such an injunction would enhance the already exiting power of the
Government to act. See Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a
traditional axiom of equity that a court of equity will not do a useless thing, just as it
is a traditional axiom that equity will not enjoin the commission of a crime. See Z.
Chafee & E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions 580a
(1909). Here, there has been no attempt to make such a showing. The Solicitor
General does not even mention in his brief whether the Government considers that
there is probable cause to believe a crime has been committed, or whether there is
a conspiracy to commit future crimes.
If the Government had attempted to show that there was no effective remedy under
traditional criminal law, it would have had to show that there is no arguably
applicable statute. Of course, at this stage, this Court could not and cannot
determine whether there has been a violation of a particular statute or decide the
constitutionality of any statute. Whether a good faith prosecution could have been
instituted under any statute could, however, be determined.
Page 403 U. S. 745
At least one of the many statutes in this area seems relevant to these cases.
Congress has provided in 18 U.S.C. 793(e) that whoever,
"having unauthorized possession of, access to, or control over any document,
writing, code book, signal book . . . or note relating to the national defense, or
information relating to the national defense which information the possessor has
reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers, transmits . . . the
same to any person not entitled to receive it, or willfully retains the same and fails to
deliver it to the officer or employee of the United States entitled to receive it . . .
[s]hall be fined not more than $10,000 or imprisoned not more than ten years, or
both."
Congress has also made it a crime to conspire to commit any of the offenses listed in
18 U.S.C. 793(e).
It is true that Judge Gurfein found that Congress had not made it a crime to publish
the items and material specified in 793(e). He found that the words
"communicates, delivers, transmits . . ." did not refer to publication of newspaper
stories. And that view has some support in the legislative history, and conforms with
the past practice of using the statute only to prosecute those charged with ordinary
espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge
Gurfein's view of the statute is not, however, the only plausible construction that
could be given. See my Brother WHITE's concurring opinion.
Even if it is determined that the Government could not in good faith bring criminal
prosecutions against the New York Times and the Washington Post, it is clear that
Congress has specifically rejected passing legislation that would have clearly given
the President the power he seeks here and made the current activity of the
newspapers unlawful. When Congress specifically declines to make conduct
unlawful, it is not for this Court

Page 403 U. S. 746
to redecide those issues -- to overrule Congress. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952).
On at least two occasions, Congress has refused to enact legislation that would have
made the conduct engaged in here unlawful and given the President the power that
he seeks in this case. In 1917, during the debate over the original Espionage Act,
still the basic provisions of 793, Congress rejected a proposal to give the President
in time of war or threat of war authority to directly prohibit by proclamation the
publication of information relating to national defense that might be useful to the
enemy. The proposal provided that:
"During any national emergency resulting from a war to which the United States is a
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information
relating to the national defense which, in his judgment, is of such character that it is
or might be useful to the enemy. Whoever violates any such prohibition shall be
punished by a fine of not more than $10,000 or by imprisonment for not more than
10 years, or both: Provided, That nothing in this section shall be construed to limit or
restrict any discussion, comment, or criticism of the acts or policies of the
Government or its representatives or the publication of the same."
55 Cong.Rec. 1763. Congress rejected this proposal after war against Germany had
been declared, even though many believed that there was a grave national
emergency and that the threat of security leaks and espionage was serious. The
Executive Branch has not gone to Congress and requested that the decision to
provide such power be reconsidered. Instead,
Page 403 U. S. 747
the Executive Branch comes to this Court and asks that it be granted the power
Congress refused to give.
In 1957, the United States Commission on Government Security found that
"[a]irplane journals, scientific periodicals, and even the daily newspaper have
featured articles containing information and other data which should have been
deleted in whole or in part for security reasons."
In response to this problem, the Commission proposed that
"Congress enact legislation making it a crime for any person willfully to disclose
without proper authorization, for any purpose whatever, information classified
'secret' or 'top secret,' knowing, or having reasonable grounds to believe, such
information to have been so classified."
Report of Commission on Government Security 619-620 (1957). After substantial
floor discussion on the proposal, it was rejected. See 103 Cong.Rec. 10447-10450. If
the proposal that Sen. Cotton championed on the floor had been enacted, the
publication of the documents involved here would certainly have been a crime.
Congress refused, however, to make it a crime. The Government is here asking this
Court to remake that decision. This Court has no such power.
Either the Government has the power under statutory grant to use traditional
criminal law to protect the country or, if there is no basis for arguing that Congress
has made the activity a crime, it is plain that Congress has specifically refused to
grant the authority the Government seeks from this Court. In either case, this Court
does not have authority to grant the requested relief. It is not for this Court to fling
itself into every breach perceived by some Government official, nor is it for this
Court to take on itself the burden of enacting law, especially a law that Congress has
refused to pass.
I believe that the judgment of the United States Court of Appeals for the District of
Columbia Circuit should be affirmed and the judgment of the United States Court of
Appeals for the Second Circuit should be reversed insofar as it remands the case for
further hearings. [Footnote 5/1]
See n.3, infra. [Footnote 5/2]
But see Kent v. Dulles, 357 U. S. 116 (1958); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952). [Footnote 5/3]
There are several other statutory provisions prohibiting and punishing the
dissemination of information, the disclosure of which Congress thought sufficiently
imperiled national security to warrant that result. These include 42 U.S.C. 2161
through 2166, relating to the authority of the Atomic Energy Commission to classify
and declassify "Restricted Data" ["Restricted Data" is a term of art employed
uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. 2162 authorizes the
Atomic Energy Commission to classify certain information. Title 42 U.S.C. 2274,
subsection (a), provides penalties for a person who "communicates, transmits, or
discloses [restricted data] . . . with intent to injure the United States or with intent to
secure an advantage to any foreign nation. . . ."
Subsection (b) of 2274 provides lesser penalties for one who "communicates,
transmits, or discloses" such information "with reason to believe such data will be
utilized to injure the United States or to secure an advantage to any foreign
nation. . . ." Other sections of Title 42 of the United States Code dealing with atomic
energy prohibit and punish acquisition, removal, concealment, tampering with,
alteration, mutilation, or destruction of documents incorporating "Restricted Data"
and provide penalties for employees and former employees of the Atomic Energy
Commission, the armed services, contractors and licensees of the Atomic Energy
Commission. Title 42 U.S.C. 2276, 2277. Title 50 U.S.C.App. 781, 56 Stat. 390,
prohibits the making of any sketch or other representation of military installations or
any military equipment located on any military installation, as specified; and,
indeed, Congress, in the National Defense Act of 1940, 54 Stat. 676, as amended, 56
Stat. 179, conferred jurisdiction on federal district courts over civil actions "to enjoin
any violation" thereof. 50 U.S.C.App. 1152(6). Title 50 U.S.C. 783(b) makes it
unlawful for any officers or employees of the United States or any corporation which
is owned by the United States to communicate material which has been "classified"
by the President to any person who that governmental employee knows or has
reason to believe is an agent or representative of any foreign government or any
Communist organization.
SORIANO v LAGUARDIA
ELISEO F. SORIANO,
Petitioner,- versus -
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL
M. SANDOVAL, and ROLDAN A. GAVINO,
Respondents. by the filing with this Court of a petition for certiorari and prohibition,[8] docketed as
x-------------------------------------------x G.R. No. 164785, to nullify the preventive suspension order thus issued.
ELISEO F. SORIANO,
Petitioner, On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
- versus - disposing as follows:
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE,
JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E.
ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA respondent Soriano liable for his utterances and thereby imposing on him a penalty
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. of three (3) months suspension from his program, Ang Dating Daan.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its
the MTRCB, owner, PBC, are hereby exonerated for lack of evidence.
Respondents.
G.R. No. 164785
SO ORDERED.[9]
G.R. No. 165636
Petitioner then filed this petition for certiorari and prohibition with prayer for
injunctive relief, docketed as G.R. No. 165636.
Promulgated: April 29, 2009
D E C I S I O N-- VELASCO, JR., J.:
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. In G.R. No. 164785, petitioner raises the following issues:
Soriano seeks to nullify and set aside an order and a decision of the Movie and
Television Review and Classification Board (MTRCB) in connection with certain
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]
utterances he made in his television show, Ang Dating Daan.
DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x
Facts of the Case
x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
Dating Daan, aired on UNTV 37, made the following remarks:
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
Lehitimong anak ng demonyo; sinungaling; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]
putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.[1] x x x
In G.R. No. 165636, petitioner relies on the following grounds:
Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED
of the Iglesia ni Cristo (INC),[2] against petitioner in connection with the above
WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in
petitioners remark, was then a minister of INC and a regular host of the TV program
Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing I SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
on August 16, 2004 in relation to the alleged use of some cuss words in the August THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
10, 2004 episode of Ang Dating Daan.[4] EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT
CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND
REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of
PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED
August 16, 2004, preventively suspended the showing of Ang Dating Daan program
19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE
for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986,
CASE AT BENCH;
creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing
Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.[5] The same order also set the case for preliminary investigation. II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE,
The following day, petitioner sought reconsideration of the preventive suspension
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27
order, praying that Chairperson Consoliza P. Laguardia and two other members of
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
the adjudication board recuse themselves from hearing the case.[6] Two days after,
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
however, petitioner sought to withdraw[7] his motion for reconsideration, followed
III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR
THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR],
RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO,
I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order
of preventive suspension, although its implementability had already been overtaken
and veritably been rendered moot by the equally assailed September 27, 2004
decision.
It is petitioners threshold posture that the preventive suspension imposed against
him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986
does not expressly authorize the MTRCB to issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as
may be conferred by the Constitution or by statute.[12] They have in fine only such
powers or authority as are granted or delegated, expressly or impliedly, by law.[13]
And in determining whether an agency has certain powers, the inquiry should be
from the law itself. But once ascertained as existing, the authority given should be
liberally construed.[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by
the agency of the authority, albeit impliedly, to issue the challenged order of
preventive suspension. And this authority stems naturally from, and is necessary for
the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall have the following functions,
powers and duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the
x x x production, x x x exhibition and/or television broadcast of the motion pictures,
television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the board applying contemporary Filipino cultural values
as standard, are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its
people, or with a dangerous tendency to encourage the commission of violence or of
wrong or crime such as but not limited to:x x x x
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; x x x x
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x
production, copying, distribution, sale, lease, exhibition, and/or television broadcast
of all motion pictures, television programs and publicity materials, to the end that no
such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x produced,
copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the
attainment of the purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCBs
authority and functions expressly set forth in PD 1986, more particularly under its
Sec. 3(d), as quoted above, which empowers the MTRCB 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 that no
such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or
broadcast by television.
Surely, the power to issue preventive suspension forms part of the MTRCBs express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
authority subsumed in or implied from such mandate. Any other construal would
render its power to regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
preliminary step in an administrative investigation.[15] And the power to discipline
and impose penalties, if granted, carries with it the power to investigate
administrative complaints and, during such investigation, to preventively suspend
the person subject of the complaint.[16]
To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower
itself to impose preventive suspension through the medium of the IRR of PD 1986. It
is true that the matter of imposing preventive suspension is embodied only in the
IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case,
and in order to prevent or stop further violations or for the interest and welfare of
the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty
(20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without
more, would not work to deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is expressly empowered by statute to
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. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to
repeat, to the MTRCBs duty of regulating or supervising television programs,
pending a determination of whether or not there has actually been 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.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to
authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986,
limiting the MTRCB to functions within the literal confines of the law, would give the
agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD
1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be
necessary or incidental to the attainment of the purposes and objectives of this Act
x x x. Indeed, the power to impose preventive suspension is one of the implied
powers of MTRCB. As distinguished from express powers, implied powers are those
that can be inferred or are implicit in the wordings or conferred by necessary or fair
implication of the enabling act.[17] As we held in Angara v. Electoral Commission,
when a general grant of power is conferred or a duty enjoined, every particular
power necessary for the exercise of one or the performance of the other is also
conferred by necessary implication.[18] Clearly, the power to impose preventive
suspension pending investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials.
The scope of the MTRCBs authority extends beyond motion pictures. What the
acronym MTRCB stands for would suggest as much. And while the law makes
specific reference to the closure of a television network, the suspension of a
television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would
regretfully be rendered ineffective should it be subject to the restrictions petitioner
envisages.
Just as untenable is petitioners argument on the nullity of the preventive suspension
order on the ground of lack of hearing. As it were, the MTRCB handed out the
assailed order after petitioner, in response to a written notice, appeared before that
Board for a hearing on private respondents complaint. No less than petitioner
admitted that the order was issued after the adjournment of the hearing,[19]
proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII
of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the
pendency of the case. In this particular case, it was done after MTRCB duly apprised
petitioner of his having possibly violated PD 1986[20] and of administrative
complaints that had been filed against him for such violation.[21]
At any event, that preventive suspension can validly be meted out even without a
hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the equal protection of
the law, arguing that, owing to the preventive suspension order, he was unable to
answer the criticisms coming from the INC ministers.
Petitioners position does not persuade. The equal protection clause demands that all
persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed.[23] It guards
against undue favor and individual privilege as well as hostile discrimination.[24]
Surely, petitioner cannot, under the premises, place himself in the same shoes as
the INC ministers, who, for one, are not facing administrative complaints before the
MTRCB. For another, he offers no proof that the said ministers, in their TV programs,
use language similar to that which he used in his own, necessitating the MTRCBs
disciplinary action. If the immediate result of the preventive suspension order is that
petitioner remains temporarily gagged and is unable to answer his critics, this does
not become a deprivation of the equal protection guarantee. The Court need not
belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on
one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different to even consider whether or not
there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he
uttered was religious speech, adding that words like putang babae were said in
exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom.
The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
There is nothing in petitioners statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The
fact that he came out with his statements in a televised bible exposition program
does not automatically accord them the character of a religious discourse. Plain and
simple insults directed at another person cannot be elevated to the status of
religious speech. Even petitioners attempts to place his words in context show that
he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious speech. We cannot accept
that petitioner made his statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged lies being spread by a
rival religious group. They simply illustrate that petitioner had descended to the
level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-
day preventive suspension order, being, as insisted, an unconstitutional
abridgement of the freedom of speech and expression and an impermissible prior
restraint. The main issue tendered respecting the adverted violation and the
arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision subject
of review under G.R. No. 165636. Both overlapping issues and arguments shall be
jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground that the decision violates, apart
from his religious freedom, his freedom of speech and expression guaranteed under
Sec. 4, Art. III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain
general concepts and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion
pictures come within the broad protection of the free speech and expression clause.
[25] Each method though, because of its dissimilar presence in the lives of people
and accessibility to children, tends to present its own problems in the area of free
speech protection, with broadcast media, of all forms of communication, enjoying a
lesser degree of protection.[26] Just as settled is the rule that restrictions, be it in
the form of prior restraint, e.g., judicial injunction against publication or threat of
cancellation of license/franchise, or subsequent liability, whether in libel and
damage suits, prosecution for sedition, or contempt proceedings, are anathema to
the freedom of expression. Prior restraint means official government restrictions on
the press or other forms of expression in advance of actual publication or
dissemination.[27] The freedom of expression, as with the other freedoms encased
in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to
serve important public interests, some forms of speech not being protected. As has
been held, the limits of the freedom of expression are reached when the expression
touches upon matters of essentially private concern.[28] In the oft-quoted
expression of Justice Holmes, the constitutional guarantee obviously was not
intended to give immunity for every possible use of language.[29] From Lucas v.
Royo comes this line: [T]he freedom to express ones sentiments and belief does not
grant one the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper regard for
the rights of others.[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-
defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems.
In net effect, some forms of speech are not protected by the Constitution, meaning
that restrictions on unprotected speech may be decreed without running afoul of the
freedom of speech clause.[32] A speech would fall under the unprotected type if the
utterances involved are no essential part of any exposition of ideas, and are of such
slight social value as a step of truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality.[33] Being of little
or no value, there is, in dealing with or regulating them, no imperative call for the
application of the clear and present danger rule or the balancing-of-interest test,
they being essentially modes of weighing competing values,[34] or, with like effect,
determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that
unprotected speech or low-value expression refers to libelous statements, obscenity
or pornography, false or misleading advertisement, insulting or fighting words, i.e.,
those which by their very utterance inflict injury or tend to incite an immediate
breach of peace and expression endangering national security.
The Court finds that petitioners statement can be treated as obscene, at least with
respect to the average child. Hence, it is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court expressed difficulty in formulating a
definition of obscenity that would apply to all cases, but nonetheless stated the
ensuing observations on the matter:
There is no perfect definition of obscenity but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average
person, applying contemporary standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled discretion in determining what is
patently offensive. x x x What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the
judges sound discretion.[35]
Following the contextual lessons of the cited case of Miller v. California,[36] a
patently offensive utterance would come within the pale of the term obscenity
should it appeal to the prurient interest of an average listener applying
contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the
case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol
ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung
ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute
obscene but merely indecent utterances. They can be viewed as figures of speech or
merely a play on words. In the context they were used, they may not appeal to the
prurient interests of an adult. The problem with the challenged statements is that
they were uttered in a TV program that is rated G or for general viewership, and in a
time slot that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds. The term putang
babae means a female prostitute, a term wholly inappropriate for children, who
could look it up in a dictionary and just get the literal meaning, missing the context
within which it was used. Petitioner further used the terms, ang gumagana lang
doon yung ibaba, making reference to the female sexual organ and how a female
prostitute uses it in her trade, then stating that Sandoval was worse than that by
using his mouth in a similar manner. Children could be motivated by curiosity and
ask the meaning of what petitioner said, also without placing the phrase in context.
They may be inquisitive as to why Sandoval is different from a female prostitute and
the reasons for the dissimilarity. And upon learning the meanings of the words used,
young minds, without the guidance of an adult, may, from their end, view this kind
of indecent speech as obscene, if they take these words literally and use them in
their own speech or form their own ideas on the matter. In this particular case,
where children had the opportunity to hear petitioners words, when speaking of the
average person in the test for obscenity, we are speaking of the average child, not
the average adult. The average child may not have the adults grasp of figures of
speech, and may lack the understanding that language may be colorful, and words
may convey more than the literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as such. In this sense, we find
petitioners utterances obscene and not entitled to protection under the umbrella of
freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily accessible
to children. With respect to the young minds, said utterances are to be treated as
unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while
a jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for
its regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a
rich source of persuasive lessons. Foremost of these relates to indecent speech
without prurient appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting that,
within a particular context, such indecent speech may validly be categorized as
unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered filthy words[40] earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station
owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-
recorded monologue while driving with his son, FCC declared the language used as
patently offensive and indecent under a prohibiting law, though not necessarily
obscene. FCC added, however, that its declaratory order was issued in a special
factual context, referring, in gist, to an afternoon radio broadcast when children
were undoubtedly in the audience. Acting on the question of whether the FCC could
regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing
to two special features of the broadcast medium, to wit: (1) radio is a pervasive
medium and (2) broadcasting is uniquely accessible to children. The US Court,
however, hastened to add that the monologue would be protected speech in other
contexts, albeit it did not expound and identify a compelling state interest in putting
FCCs content-based regulatory action under scrutiny.
The Court in Chavez[41] elucidated on the distinction between regulation or
restriction of protected speech that is content-based and that which is content-
neutral. A content-based restraint is aimed at the contents or idea of the expression,
whereas a content-neutral restraint intends to regulate the time, place, and manner
of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-
based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the
premises was, in one perspective, permissible restriction. We make this disposition
against the backdrop of the following interplaying factors: First, the indecent speech
was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw
Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren
will likely be among the avid viewers of the programs therein shown; second, the
broadcast was aired at the time of the day when there was a reasonable risk that
children might be in the audience; and third, petitioner uttered his speech on a G or
for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the
MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the
material for television x x x in the judgment of the BOARD, does not contain
anything unsuitable for children and minors, and may be viewed without adult
guidance or supervision. The words petitioner used were, by any civilized norm,
clearly not suitable for children. Where a language is categorized as indecent, as in
petitioners utterances on a general-patronage rated TV program, it may be readily
proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography,[43]
false or misleading advertisement,[44] advocacy of imminent lawless action, and
expression endangering national security. But this list is not, as some members of
the Court would submit, exclusive or carved in stone. Without going into specifics, it
may be stated without fear of contradiction that US decisional law goes beyond the
aforesaid general exceptions. As the Court has been impelled to recognize
exceptions to the rule against censorship in the past, this particular case constitutes
yet another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech,
petitioners utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978,
petitioner asserts that his utterances must present a clear and present danger of
bringing about a substantive evil the State has a right and duty to prevent and such
danger must be grave and imminent.[45]
Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said
test is uncalled for under the premises. The doctrine, first formulated by Justice
Holmes, accords protection for utterances so that the printed or spoken words may
not be subject to prior restraint or subsequent punishment unless its expression
creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit.[46] Under the doctrine, freedom of speech
and of press is susceptible of restriction when and only when necessary to prevent
grave and immediate danger to interests which the government may lawfully
protect. As it were, said doctrine evolved in the context of prosecutions for rebellion
and other crimes involving the overthrow of government.[47] It was originally
designed to determine the latitude which should be given to speech that espouses
anti-government action, or to have serious and substantial deleterious
consequences on the security and public order of the community.[48] The clear and
present danger rule has been applied to this jurisdiction.[49] As a standard of
limitation on free speech and press, however, the clear and present danger test is
not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which
compels a court to release a defendant from liability the moment the doctrine is
invoked, absent proof of imminent catastrophic disaster.[50] As we observed in
Eastern Broadcasting Corporation, the clear and present danger test does not lend
itself to a simplistic and all embracing interpretation applicable to all utterances in
all forums.[51]
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of proximity and
degree the Court, however, in several casesAyer Productions v. Capulong[52] and
Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief
Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion
that where the legislation under constitutional attack interferes with the freedom of
speech and assembly in a more generalized way and where the effect of the speech
and assembly in terms of the probability of realization of a specific danger is not
susceptible even of impressionistic calculation,[54] then the balancing of interests
test can be applied.
The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgment of speech, the duty
of the courts is to determine which of the two conflicting interests demands the
greater protection under the particular circumstances presented. x x x We must,
therefore, undertake the delicate and difficult task x x x to weigh the circumstances
and to appraise the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social
values and individual interests competing for ascendancy in legislation which
restricts expression, the court in Douds laid the basis for what has been called the
balancing-of-interests test which has found application in more recent decisions of
the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take
conscious and detailed consideration of the interplay of interests observable in a
given situation or type of situation.x x x x
Although the urgency of the public interest sought to be secured by Congressional
power restricting the individuals freedom, and the social importance and value of
the freedom so restricted, are to be judged in the concrete, not on the basis of
abstractions, a wide range of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the social value and importance of
the specific aspect of the particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the
public interest sought to be secured by the legislationthe reference here is to the
nature and gravity of the evil which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably appropriate and necessary for
the protection of such public interest; and (e) whether the necessary safeguarding of
the public interest involved may be achieved by some other measure less restrictive
of the protected freedom.[55]
This balancing of interest test, to borrow from Professor Kauper,[56] rests on the
theory that it is the courts function in a case before it when it finds public interests
served by legislation, on the one hand, and the free expression clause affected by it,
on the other, to balance one against the other and arrive at a judgment where the
greater weight shall be placed. If, on balance, it appears that the public interest
served by restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-of-
interests theory rests on the basis that constitutional freedoms are not absolute, not
even those stated in the free speech and expression clause, and that they may be
abridged to some extent to serve appropriate and important interests.[57] To the
mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-
month suspension was slapped on him for breach of MTRCB rules. In this setting, the
assertion by petitioner of his enjoyment of his freedom of speech is ranged against
the duty of the government to protect and promote the development and welfare of
the youth.
After a careful examination of the factual milieu and the arguments raised by
petitioner in support of his claim to free speech, the Court rules that the
governments interest to protect and promote the interests and welfare of the
children adequately buttresses the reasonable curtailment and valid restraint on
petitioners prayer to continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State
is the freedom of speech or expression, for without the enjoyment of such right, a
free, stable, effective, and progressive democratic state would be difficult to attain.
Arrayed against the freedom of speech is the right of the youth to their moral,
spiritual, intellectual, and social being which the State is constitutionally tasked to
promote and protect. Moreover, the State is also mandated to recognize and support
the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the
1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on
the State to provide protection to the youth against illegal or improper activities
which may prejudice their general well-being. The Article on youth, approved on
second reading by the Constitutional Commission, explained that the State shall
extend social protection to minors against all forms of neglect, cruelty, exploitation,
immorality, and practices which may foster racial, religious or other forms of
discrimination.[58]
Indisputably, the State has a compelling interest in extending social protection to
minors against all forms of neglect, exploitation, and immorality which may pollute
innocent minds. It has a compelling interest in helping parents, through regulatory
mechanisms, protect their childrens minds from exposure to undesirable materials
and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
earlier indicated, to promote and protect the physical, moral, spiritual, intellectual,
and social well-being of the youth to better prepare them fulfill their role in the field
of nation-building.[59] In the same way, the State is mandated to support parents in
the rearing of the youth for civic efficiency and the development of moral character.
[60]
Petitioners offensive and obscene language uttered in a television broadcast,
without doubt, was easily accessible to the children. His statements could have
exposed children to a language that is unacceptable in everyday use. As such, the
welfare of children and the States mandate to protect and care for them, as parens
patriae,[61] constitute a substantial and compelling government interest in
regulating petitioners utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the
children who, because of age or interest capacity, are susceptible of being corrupted
or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read.
Although Cohens written message, [Fuck the Draft], might have been
incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs
vocabulary in an instant. Other forms of offensive expression may be withheld from
the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York that the governments interest
in the well-being of its youth and in supporting parents claim to authority in their
own household justified the regulation of otherwise protected expression. The ease
with which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of indecent
broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to
attend to the welfare of the young:
x x x It is the consensus of this Court that where television is concerned, a less
liberal approach calls for observance. This is so because unlike motion pictures
where the patrons have to pay their way, television reaches every home where there
is a set. Children then will likely will be among the avid viewers of the programs
therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual fantasies of the adult
population. It cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young.[62]
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the
restraint on the TV broadcast grounded on the following considerations: (1) the use
of television with its unique accessibility to children, as a medium of broadcast of a
patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang
Dating Daan program. And in agreeing with MTRCB, the court takes stock of and
cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This
case does not involve a two-way radio conversation between a cab driver and a
dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an
occasional expletive in either setting would justify any sanction. x x x The [FFCs]
decision rested entirely on a nuisance rationale under which context is all important.
The concept requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the language is used
will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a
nuisance may be merely a right thing in the wrong place, like a pig in the parlor
instead of the barnyard. We simply hold that when the [FCC] finds that a pig has
entered the parlor, the exercise of its regulatory power does not depend on proof
that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-
time television are blatantly indecent if not outright obscene. It is the kind of speech
that PD 1986 proscribes necessitating the exercise by MTRCB of statutory
disciplinary powers. It is the kind of speech that the State has the inherent
prerogative, nay duty, to regulate and prevent should such action served and further
compelling state interests. One who utters indecent, insulting, or offensive words on
television when unsuspecting children are in the audience is, in the graphic
language of FCC, a pig in the parlor. Public interest would be served if the pig is
reasonably restrained or even removed from the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is
an administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to
prior restraint are movies, television, and radio broadcast censorship in view of its
access to numerous people, including the young who must be insulated from the
prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of
Review for Motion Pictures and Television (now MTRCB) and which requires prior
permit or license before showing a motion picture or broadcasting a TV program.
The Board can classify movies and television programs and can cancel permits for
exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious program
brings it out of the bosom of internal belief. Television is a medium that reaches
even the eyes and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring about the clear
and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare. x x x
x x x xWhile the thesis has a lot to commend itself, we are not ready to hold that [PD
1986] is unconstitutional for Congress to grant an administrative body quasi-judicial
power to preview and classify TV programs and enforce its decision subject to review
by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:
The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into
the mail anything they please, regardless of its character.[63]
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies
and television programs or parts of either are fit for public consumption. It decides
what movies are immoral, indecent, contrary to law and/or good customs, injurious
to the prestige of the Republic of the Philippines or its people, and what tend to
incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith
and confidence of the people in their government and/or duly constituted
authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the
power of review and prior approval of MTRCB extends to all television programs and
is valid despite the freedom of speech guaranteed by the Constitution. Thus, all
broadcast networks are regulated by the MTRCB since they are required to get a
permit before they air their television programs. Consequently, their right to enjoy
their freedom of speech is subject to that requirement. As lucidly explained by
Justice Dante O. Tinga, government regulations through the MTRCB became a
necessary evil with the government taking the role of assigning bandwidth to
individual broadcasters. The stations explicitly agreed to this regulatory scheme;
otherwise, chaos would result in the television broadcast industry as competing
broadcasters will interfere or co-opt each others signals. In this scheme, station
owners and broadcasters in effect waived their right to the full enjoyment of their
right to freedom of speech in radio and television programs and impliedly agreed
that said right may be subject to prior restraintdenial of permit or subsequent
punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was
already issued to him by MTRCB for such broadcast. Rather, the suspension is in the
form of permissible administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening of August 10, 2004 in his
television program, Ang Dating Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free speech clause. And the
imposition is separate and distinct from the criminal action the Board may take
pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the
aggrieved private party under the provisions on libel or tort, if applicable. As FCC
teaches, the imposition of sanctions on broadcasters who indulge in profane or
indecent broadcasting does not constitute forbidden censorship. Lest it be
overlooked, the sanction imposed is not per se for petitioners exercise of his
freedom of speech via television, but for the indecent contents of his utterances in a
G rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment
of his freedom of speech to regulation under PD 1986 and its IRR as television
station owners, program producers, and hosts have impliedly accepted the power of
MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement
and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time G rated
TV program; it does not bar future speech of petitioner in other television programs;
it is a permissible subsequent administrative sanction; it should not be confused
with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66]
sustained the power of the MTRCB to penalize a broadcast company for
exhibiting/airing a pre-taped TV episode without Board authorization in violation of
Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of
its authority were it to regulate and even restrain the prime-time television
broadcast of indecent or obscene speech in a G rated program is not acceptable. As
made clear in Eastern Broadcasting Corporation, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media. The MTRCB, as a regulatory agency, must have the wherewithal to
enforce its mandate, which would not be effective if its punitive actions would be
limited to mere fines. Television broadcasts should be subject to some form of
regulation, considering the ease with which they can be accessed, and violations of
the regulations must be met with appropriate and proportional disciplinary action.
The suspension of a violating television program would be a sufficient punishment
and serve as a deterrent for those responsible. The prevention of the broadcast of
petitioners television program is justified, and does not constitute prohibited prior
restraint. It behooves the Court to respond to the needs of the changing times, and
craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional
the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes
also upon his freedom of religion. The Court has earlier adequately explained why
petitioners undue reliance on the religious freedom cannot lend justification, let
alone an exempting dimension to his licentious utterances in his program. The Court
sees no need to address anew the repetitive arguments on religious freedom. As
earlier discussed in the disposition of the petition in G.R. No. 164785, what was
uttered was in no way a religious speech. Parenthetically, petitioners attempt to
characterize his speech as a legitimate defense of his religion fails miserably. He
tries to place his words in perspective, arguing evidently as an afterthought that this
was his method of refuting the alleged distortion of his statements by the INC hosts
of Ang Tamang Daan. But on the night he uttered them in his television program, the
word simply came out as profane language, without any warning or guidance for
undiscerning ears.
As to petitioners other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB,
and that he was unable to demonstrate that he was unjustly discriminated against in
the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power,
as PD 1986 does not provide for the range of imposable penalties that may be
applied with respect to violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative
power in the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that
Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness
of the statute in all its term and provisions when it leaves the hands of the
legislature. To determine whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes what job
must be done, who is to do it, and what is the scope of his authority. For a complex
economy, that may indeed be the only way in which the legislative process can go
forward. A distinction has rightfully been made between delegation of power to
make laws which necessarily involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the
legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at
the very least that the legislature itself determines matters of principle and lays
down fundamental policy. Otherwise, the charge of complete abdication may be hard
to repel. A standard thus defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations.[67]
Based on the foregoing pronouncements and analyzing the law in question,
petitioners protestation about undue delegation of legislative power for the sole
reason that PD 1986 does not provide for a range of penalties for violation of the law
is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for violation of the provisions of the decree, went
beyond the terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it together, the
first assumption being that PD 1986 does not prescribe the imposition of, or
authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier
indicated, however, the MTRCB, by express and direct conferment of power and
functions, is charged with supervising and regulating, granting, denying, or
canceling permits for the exhibition and/or television broadcast of all motion
pictures, television programs, and publicity materials to the end that no such
objectionable pictures, programs, and materials shall be exhibited and/or broadcast
by television. Complementing this provision is Sec. 3(k) of the decree authorizing the
MTRCB to exercise such powers and functions as may be necessary or incidental to
the attainment of the purpose and objectives of [the law]. As earlier explained, the
investiture of supervisory, regulatory, and disciplinary power would surely be a
meaningless grant if it did not carry with it the power to penalize the supervised or
the regulated as may be proportionate to the offense committed, charged, and
proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance of the other is also
conferred. x x x [W]hen the statute does not specify the particular method to be
followed or used by a government agency in the exercise of the power vested in it
by law, said agency has the authority to adopt any reasonable method to carry out
its function.[68]
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought
to be enforced. And would it not be logical too to say that the power to deny or
cancel a permit for the exhibition of a TV program or broadcast necessarily includes
the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power [to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the
IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the
immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its
Implementing Rules and Regulations governing motion pictures, television programs,
and related promotional materials shall be penalized with suspension or cancellation
of permits and/or licenses issued by the Board and/or with the imposition of fines
and other administrative penalty/penalties. The Board recognizes the existing Table
of Administrative Penalties attached without prejudice to the power of the Board to
amend it when the need arises. In the meantime the existing revised Table of
Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the
IRR does not expand the mandate of the MTRCB under the law or partake of the
nature of an unauthorized administrative legislation. The MTRCB cannot shirk its
responsibility to regulate the public airwaves and employ such means as it can as a
guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with
the standards to be applied to determine whether there have been statutory
breaches. The MTRCB may evaluate motion pictures, television programs, and
publicity materials applying contemporary Filipino cultural values as standard, and,
from there, determine whether these audio and video materials are objectionable for
being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply
the sanctions it deems proper. The lawmaking body cannot possibly provide for all
the details in the enforcement of a particular statute.[69] The grant of the rule-
making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the non-delegation of legislative powers.
[70] Administrative regulations or subordinate legislation calculated to promote the
public interest are necessary because of the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased
difficulty of administering the law.[71] Allowing the MTRCB some reasonable elbow-
room in its operations and, in the exercise of its statutory disciplinary functions,
according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and
attending mitigating or aggravating circumstances, as the case may be, would be
consistent with its mandate to effectively and efficiently regulate the movie and
television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for
nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB
Schedule of Administrative Penalties effective January 1, 1999 is the Board
empowered to suspend the program host or even to prevent certain people from
appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast
of such television programs or cancel permits for exhibition, but it may not suspend
television personalities, for such would be beyond its jurisdiction. The MTRCB cannot
extend its exercise of regulation beyond what the law provides. Only persons,
offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986
will be considered to be within the decrees penal or disciplinary operation. And when
it exists, the reasonable doubt must be resolved in favor of the person charged with
violating the statute and for whom the penalty is sought. Thus, the MTRCBs decision
in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent
order issued pursuant to said decision must be modified. The suspension should
cover only the television program on which petitioner appeared and uttered the
offensive and obscene language, which sanction is what the law and the facts
obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm
in which absolute permissiveness is the norm. Petitioners flawed belief that he may
simply utter gutter profanity on television without adverse consequences, under the
guise of free speech, does not lend itself to acceptance in this jurisdiction. We
repeat: freedoms of speech and expression are not absolute freedoms. To say any
act that restrains speech should be greeted with furrowed brows is not to say that
any act that restrains or regulates speech or expression is per se invalid. This only
recognizes the importance of freedoms of speech and expression, and indicates the
necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to
the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as
follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a
penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.Costs against petitioner. SO
ORDERED.
MARCH 15, 2010
VELASCO, JR., J.:
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the
Decision of the Court dated April 29, 2009, modifying that of the Movie and
Television Review and Classification Board (MTRCB) by imposing the penalty of
three-month suspension on the television show Ang Dating Daan, instead of on
petitioner Soriano, as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the
suspension thus meted out to the program constitutes prior restraint; (2) the Court
erred in ruling that his utterances1 did not constitute exercise of religion; (3) the
Court erred in finding the language used as offensive and obscene; (4) the Court
should have applied its policy of non-interference in cases of conflict between
religious groups; and (5) the Court erred in penalizing the television program for the
acts of petitioner.
The motion has no merit.
Petitioners threshold posture that the suspension thus imposed constitutes prior
restraint and an abridgement of his exercise of religion and freedom of expression is
a mere rehash of the position he articulated in the underlying petitions for certiorari
and expounded in his memorandum.2 So are the supportive arguments and some of
the citations of decisional law, Philippine and American, holding it together. They
have been considered, sufficiently discussed in some detail, and found to be without
merit in our Decision. It would, thus, make little sense to embark on another lengthy
discussion of the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in question does
not, under the factual milieu of the case, constitute prior restraint, but partakes of
the nature of subsequent punishment for past violation committed by petitioner in
the course of the broadcast of the program on August 10, 2004. To be sure,
petitioner has not contested the fact of his having made statements on the air that
were contextually violative of the programs "G" rating. To merit a "G" rating, the
program must be "suitable for all ages," which, in turn, means that the "material for
television [does not], in the judgment of the [MTRCB], x x x contain anything
unsuitable for children and minors, and may be viewed without adult guidance or
supervision."3 As previously discussed by the Court, the vulgar language petitioner
used on prime-time television can in no way be characterized as suitable for all
ages, and is wholly inappropriate for children.
Petitioner next harps on the primacy of his freedoms, referring particularly to the
exercise of his religious beliefs and profession, as presiding minister of his flock, over
the right and duty of the state as parens patriae. Petitioners position may be
accorded some cogency, but for the fact that it fails to consider that the medium he
used to make his statements was a television broadcast, which is accessible to
children of virtually all ages. As already laid down in the Decision subject of this
recourse, the interest of the government in protecting children who may be
subjected to petitioners invectives must take precedence over his desire to air
publicly his dirty laundry. The public soapbox that is television must be guarded by
the state, which purpose the MTRCB serves, and has served, in suspending Ang
Dating Daan for petitioners statements. As emphasized in Gonzalez v. Kalaw
Katigbak,4 the freedom of broadcast media is, in terms of degree of protection it
deserves, lesser in scope, especially as regards television, which reaches every
home where there is a set, and where children will likely be among the avid viewers
of the programs shown. The same case also laid the basis for the classification
system of the MTRCB when it stated, "It cannot be denied though that the State as
parens patriae is called upon to manifest an attitude of caring for the welfare of the
young."5
The penalty of suspension imposed on petitioner has driven him to liken the Court to
"a blind man who was asked to describe an elephant, and by his description he
stubbornly believed that an elephant is just the same as a Meralco post after
touching one if its legs."6 Petitioner makes this comparison with the view that the
factual backdrop against which his statements were made was purportedly not
considered by the Court. As he presently argues:
The Honorable Court should have rendered its decision in light of the surrounding
circumstances why and what prompted herein petitioner to utter those words.
Clearly, he was provoked because of the malicious and blatant splicing by the INC
ministers of his recorded voice. Verily, Petitioner submits that the choice of words he
used has been harsh but strongly maintains that the same was consistent with his
constitutional right of freedom of speech and religion.
Contrary to petitioners impression, the Court has, in fact, considered the factual
antecedents of and his motive in making his utterances, and has found those
circumstances wanting as defense for violating the programs "G" rating. Consider
the following excerpts from the Courts Decision:
There is nothing in petitioners statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The
fact that he came out with his statements in a televised bible exposition program
does not automatically accord them the character of a religious discourse. Plain and
simple insults directed at another person cannot be elevated to the status of
religious speech. Even petitioners attempts to place his words in context show that
he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious speech. We cannot accept
that petitioner made his statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged lies being spread by a
rival religious group. They simply illustrate that petitioner had descended to the
level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.
And just to set things straight, the penalty imposed is on the program, not on
petitioner.
Petitioner would next have the Court adopt a hands-off approach to the conflict
between him and the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni
Cristo v. Court of Appeals.7
Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous.
Obviously, he fails to appreciate what the Court stated in that particular case when
it rejected the argument that a religious program is beyond MTRCBs review and
regulatory authority. We reproduce what the Court pertinently wrote in Iglesia ni
Cristo:
We thus reject petitioners postulate that its religious program is per se beyond
review by the respondent [MTRCB]. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that
reaches even the eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring about
the clear and present danger of some substantive evil which the State is duty bound
to prevent, i.e. serious detriment to the more overriding interest of public health,
public morals, or public welfare. A laissez faire policy on the exercise of religion can
be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by
men were caused by irreconcilable religious differences. Our country is still not safe
from the recurrence of this stultifying strife considering our warring religious beliefs
and the fanaticism with which some of us cling and claw to these beliefs. x x x For
when religion divides and its exercise destroys, the State should not stand still.8
(Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law, alleging that
the registered producer of the program is not a party to the proceedings. Hence, the
program cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioners admission in his petition for certiorari filed with the Court, he is
"the Executive Producer of Ang Dating Daan, a televised bible exposition program
produced by the Philippine-based religious organization, Church of God
International."9 It is unclear, then, which producer the movant is referring to in
claiming that there was no representation before the MTRCB. He was and is the
representative of Ang Dating Daan, and the claim that there was no due process of
law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant motion,
certain relevant issues have been raised by some members of the Court that ought
to be addressed if only to put things in their proper perspective. We refer to the
matter of obscenity.
As stressed at every possible turn in the challenged Courts Decision, the defining
standards to be employed in judging the harmful effects of the statements petitioner
used would be those for the average child, not those for the average adult. We note
that the ratings and regulation of television broadcasts take into account the
protection of the child, and it is from the childs narrow viewpoint that the utterances
must be considered, if not measured. The ratings "G," "PG" (parental guidance), "PG-
13," and "R" (restricted or for adults only) suggest as much. The concern was then,
as now, that the program petitioner hosted and produced would reach an
unintended audience, the average child, and so it is how this audience would view
his words that matters. The average child would not be concerned with colorful
speech, but, instead, focus on the literal, everyday meaning of words used. It was
this literal approach that rendered petitioners utterances obscene.1avvphi1
The Court has taken stock of Action for Childrens Television v. FCC,10 but finds this
U.S. case not to be of governing application to this jurisdiction under the present
state of things. The so-called "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in
Action for Childrens Television as the time wherein broadcast of indecent material
may be permitted, is believed inapplicable here. As it were, there is no legislative
enactment or executive issuance setting a similar period in the Philippines wherein
indecent material may be broadcast. Rather than fix a period for allowing indecent
programming, what is used in this jurisdiction is the system of classification of
television programs, which the petitioner violated. His program was rated "G,"
purported to be suitable for all ages. We cannot lose sight of the violation of his
programs classification that carried with it the producers implied assurance that
the program did not contain anything unsuitable for children and minors. The hour at
which it was broadcasted was of little moment in light of the guarantee that the
program was safe for childrens viewing.
The suspension of the program has not been arrived at lightly. Taking into account all
the factors involved and the arguments pressed on the Court, the suspension of the
program is a sufficiently limited disciplinary action, both to address the violation and
to serve as an object lesson for the future. The likelihood is great that any
disciplinary action imposed on petitioner would be met with an equally energetic
defense as has been put up here. The simple but stubborn fact is that there has
been a violation of government regulations that have been put in place with a
laudable purpose, and this violation must accordingly be dealt with. We are not
unmindful of the concerns on the restriction of freedoms that may occur in imposing
sanctions upon erring individuals and institutions, but it cannot be over-emphasized
that the freedoms encased in the Bill of Rights are far from absolute. Each has its
own limits, responsibilities, and obligations. Everyone is expected to bear the burden
implicit in the exercise of these freedoms. So it must be here.
WHEREFORE, petitioners motion for reconsideration is hereby DENIED. No further
pleadings shall be entertained in this case. Let entry of judgment be made in due
course. SO ORDERED.
G.R. No. 155282 January 17, 2005
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB),
petitioner,
vs.ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA,
respondents.
D E C I S I O N: SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997
Rules of Court, as amended, filed by petitioner Movie and Television Review and
Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN)
and former Senator Loren Legarda, respondents, assailing the (a) Decision dated
November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial
Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-
tuition," an episode of the television (TV) program "The Inside Story" produced and
hosted by respondent Legarda. It depicted female students moonlighting as
prostitutes to enable them to pay for their tuition fees. In the course of the program,
student prostitutes, pimps, customers, and some faculty members were interviewed.
The Philippine Womens University (PWU) was named as the school of some of the
students involved and the facade of PWU Building at Taft Avenue, Manila
conspicuously served as the background of the episode.
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia
P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and
Teachers Association filed letter-complaints3 with petitioner MTRCB. Both
complainants alleged that the episode besmirched the name of the PWU and
resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
complaint with the MTRCB Investigating Committee, alleging among others, that
respondents (1) did not submit "The Inside Story" to petitioner for its review and (2)
exhibited the same without its permission, thus, violating Section 74 of Presidential
Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the
MTRCB Rules and Regulations.8

In their answer,9 respondents explained that the "The Inside Story" is a "public
affairs program, news documentary and socio-political editorial," the airing of which
is protected by the constitutional provision on freedom of expression and of the
press. Accordingly, petitioner has no power, authority and jurisdiction to impose any
form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties memoranda, the
MTRCB Investigating Committee rendered a Decision, the decretal portion of which
reads:
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the
sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program,
subject of this case for review and approval of the MTRCB.
Heretofore, all subsequent programs of the The Inside Story and all other programs
of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of
Review and Approval before showing; otherwise the Board will act
accordingly."101awphi1.nt
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a
Decision dated March 12, 1993 affirming the above ruling of its Investigating
Committee.11 Respondents filed a motion for reconsideration but was denied in a
Resolution dated April 14, 1993.12
Respondents then filed a special civil action for certiorari with the Regional Trial
Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional
Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections
3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the
alternative) exclude the "The Inside Story" from the coverage of the above cited
provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993
and Resolution dated April 14, 1993. Respondents averred that the above-cited
provisions constitute "prior restraint" on respondents exercise of freedom of
expression and of the press, and, therefore, unconstitutional. Furthermore, the
above cited provisions do not apply to the "The Inside Story" because it falls under
the category of "public affairs program, news documentary, or socio-political
editorials" governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the
dispositive portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB
dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D.
No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV
Program "The Inside Story" and other similar programs, they being public affairs
programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in
their behalf.
SO ORDERED."
Petitioner filed a motion for reconsideration but was denied.24
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all
television programs, including "public affairs programs, news documentaries, or
socio-political editorials," are subject to petitioners power of review under Section 3
(b) of P.D. No. 1986 and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of
Appeals ;25 second, television programs are more accessible to the public than
newspapers, thus, the liberal regulation of the latter cannot apply to the former;
third, petitioners power to review television programs under Section 3(b) of P. D. No.
1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986
does not violate respondents constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to
review the "The Inside Story" prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No.
1986, partly reproduced as follows:
"SEC. 3. Powers and Functions. The BOARD shall have the following functions,
powers and duties:x x x x x x
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution, for television broadcast or for general viewing, imported or
produced in the Philippines, and in the latter case, whether they be for local viewing
or for export.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition
and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation,
exportation, production, copying, distribution, sale, lease, exhibition, and/or
television broadcast of all motion pictures, television programs and publicity
materials, to the end and that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be imported, exported, produced, copied, reproduced, distributed, sold,
leased, exhibited and/or broadcast by television;
x x x x x x."
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has
the power to review the television program "The Inside Story." The task is not
Herculean because it merely resurrects this Court En Bancs ruling in Iglesia ni Cristo
vs. Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioners
review power contending that the term "television programs" under Sec. 3 (b) does
not include "religious programs" which are protected under Section 5, Article III of
the Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that
P.D. No. 1986 gives petitioner "the power to screen, review and examine "all
television programs," emphasizing the phrase "all television programs," thus:
"The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve,
delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x
television programs x x x. The law also directs the Board to apply contemporary
Filipino cultural values as standard to determine those which are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime."
Settled is the rule in statutory construction that where the law does not make any
exception, courts may not except something therefrom, unless there is compelling
reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere
debemos. Thus, when the law says "all television programs," the word "all" covers all
television programs, whether religious, public affairs, news documentary, etc.29 The
principle assumes that the legislative body made no qualification in the use of
general word or expression.30
It then follows that since "The Inside Story" is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term "television
programs" on the ground that the "The Inside Story" is a "public affairs program,
news documentary and socio-political editorial" protected under Section 4,31 Article
III of the Constitution. Albeit, respondents basis is not freedom of religion, as in
Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni
Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni
Cristo, this Court declared that freedom of religion has been accorded a preferred
status by the framers of our fundamental laws, past and present, "designed to
protect the broadest possible liberty of conscience, to allow each man to believe as
his conscience directs x x x." Yet despite the fact that freedom of religion has been
accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos
religious program from petitioners review power.
Respondents claim that the showing of "The Inside Story" is protected by the
constitutional provision on freedom of speech and of the press. However, there has
been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there is no
justification to exempt therefrom "The Inside Story" which, according to
respondents, is protected by the constitutional provision on freedom of expression
and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCBs power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted
or exhibited by the Philippine Government and/or its departments and agencies, and
(2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or
entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place
or by television within the Philippines any motion picture, television program or
publicity material, including trailers, and stills for lobby displays in connection with
motion pictures, not duly authorized by the owner or his assignee and passed by the
BOARD; or to print or cause to be printed on any motion picture to be exhibited in
any theater or public place or by television a label or notice showing the same to
have been officially passed by the BOARD when the same has not been previously
authorized, except motion pictures, television programs or publicity material
imprinted or exhibited by the Philippine Government and/or its departments and
agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The
Inside Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Websters dictionary defines newsreels
as short motion picture films portraying or dealing with current events.33 A glance
at actual samples of newsreels shows that they are mostly reenactments of events
that had already happened. Some concrete examples are those of Dziga Vertovs
Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term
that was later translated literally into the French cinema verite) and Frank Capras
Why We Fight series.34 Apparently, newsreels are straight presentation of events.
They are depiction of "actualities." Correspondingly, the MTRCB Rules and
Regulations35 implementing P. D. No. 1986 define newsreels as "straight news
reporting, as distinguished from news analyses, commentaries and opinions. Talk
shows on a given issue are not considered newsreels."36 Clearly, the "The Inside
Story" cannot be considered a newsreel. It is more of a public affairs program which
is described as a variety of news treatment; a cross between pure television news
and news-related commentaries, analysis and/or exchange of opinions.37 Certainly,
such kind of program is within petitioners review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority
to review "The Inside Story." Clearly, we are not called upon to determine whether
petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing
that no law shall be passed abridging the freedom of speech, of oppression or the
press. Petitioner did not disapprove or ban the showing of the program. Neither did it
cancel respondents permit. Respondents were merely penalized for their failure to
submit to petitioner "The Inside Story" for its review and approval. Therefore, we
need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules
and Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11
of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations
are unconstitutional. It is settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the court unless
there is compliance with the legal requisites for judicial inquiry, namely: (1) that the
question must be raised by the proper party; (2) that there must be an actual case
or controversy; (3) that the question must be raised at the earliest possible
opportunity; and, (4) that the decision on the constitutional or legal question must
be necessary to the determination of the case itself.38
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC
Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby
REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED.
Costs against respondents. SO ORDERED.
SPEECH AND RIGHT OF INFORMATION
G.R. No. 74930 February 13, 1989
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
petitioners,
vs.FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.
CORTES, J.:
Petitioners in this special civil action for mandamus with preliminary injunction
invoke their right to information and pray that respondent be directed:
(a) to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure clean
loans immediately before the February 7 election thru the intercession/marginal note
of the then First Lady Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the documents evidencing
their respective loans; and/or
(c) to allow petitioners access to the public records for the subject information.
(Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am requesting
that I be furnished with the list of names of the opposition members of (the)
Batasang Pambansa who were able to secure a clean loan of P2 million each on
guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila
was one of those aforesaid MPs. Likewise, may we be furnished with the certified
true copies of the documents evidencing their loan. Expenses in connection herewith
shall be borne by us.
If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the Freedom
Constitution of the present regime.
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions or decisions, shall be afforded the citizen subject to such
limitation as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.
Very truly yours,
(Sgd.) RICARDO C. VALMONTE [Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compaero:
Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and
reply your letter to him of June 4, 1986 requesting a list of the opposition members
of Batasang Pambansa who were able to secure a clean loan of P2 million each on
guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the GSIS
and all those who borrow from it, whoever they may be; that the GSIS has a duty to
its customers to preserve this confidentiality; and that it would not be proper for the
GSIS to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond
positively to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General CounseL [Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Government
Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte
wrote respondent another letter, saying that for failure to receive a reply, "(W)e are
now considering ourselves free to do whatever action necessary within the premises
to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General.
After petitioners filed a consolidated reply, the petition was given due course and
the parties were required to file their memoranda. The parties having complied, the
case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a writ of
mandamus, among which is that petitioners have failed to exhaust administrative
remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
Board of Trustees. It is therefore asserted that since administrative remedies were
not exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz.,
whether or not they are entitled to the documents sought, by virtue of their
constitutional right to information. Hence, it is argued that this case falls under one
of the exceptions to the principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be
allowed to resort to the courts, he is expected to have exhausted all means of
administrative redress available under the law. The courts for reasons of law, comity
and convenience will not entertain a case unless the available administrative
remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum.
However, the principle of exhaustion of administrative remedies is subject to settled
exceptions, among which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396,
July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984,
129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of
the scope of the constitutional right to information, is one which can be passed upon
by the regular courts more competently than the GSIS or its Board of Trustees,
involving as it does a purely legal question. Thus, the exception of this case from the
application of the general rule on exhaustion of administrative remedies is
warranted. Having disposed of this procedural issue, We now address ourselves to
the issue of whether or not mandamus hes to compel respondent to perform the
acts sought by petitioners to be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be done, both
of which involve the issue of whether or not petitioners are entitled to access to the
documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly
involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915,
April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the
people's constitutional right to be informed of matters of public interest and ordered
the government agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art.
IV Sec. 6 of which provided:
The right of the people to information on 'matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shall be afforded the citizen subject to such
limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and
artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon, is vital to the democratic government envisioned under
our Constitution. The cornerstone of this republican system of government is
delegation of power by the people to the State. In this system, governmental
agencies and institutions operate within the limits of the authority conferred by the
people. Denied access to information on the inner workings of government, the
citizenry can become prey to the whims and caprices of those to whom the power
had been delegated. The postulate of public office as a public trust, institutionalized
in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of
governmental power, would certainly be were empty words if access to such
information of public concern is denied, except under limitations prescribed by
implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather
and the obligation to check the accuracy of information the disseminate. For them,
the freedom of the press and of speech is not only critical, but vital to the exercise of
their professions. The right of access to information ensures that these freedoms are
not rendered nugatory by the government's monopolizing pertinent information. For
an essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will.
Yet, this open dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the participants
in the discussion are aware of the issues and have access to information relating
thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech and
of the press. Far from it. The right to information goes hand-in-hand with the
constitutional policies of full public disclosure * and honesty in the public service. **
It is meant to enhance the widening role of the citizenry in governmental decision-
making as well as in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving
public interest," and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is
of "public interest" or "public concern," and is not exempted by law from the
operation of the constitutional guarantee [Legazpi v. Civil Service Commission,
supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citezen.
In the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.
[Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which
are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate
concern of citezensof ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure
"clean" loans from the GSIS immediately before the February 7, 1986 election
through the intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and
the administrator of various insurance programs for the benefit of the latter.
Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46
of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977),
provide for annual appropriations to pay the contributions, premiums, interest and
other amounts payable to GSIS by the government, as employer, as well as the
obligations which the Republic of the Philippines assumes or guarantees to pay.
Considering the nature of its funds, the GSIS is expected to manage its resources
with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the revision of the old GSIS law
(C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial
solvency of the funds administered by the System" [Second Whereas Clause, P.D.
No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed
to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the
public to ensure that these funds are managed properly with the end in view of
maximizing the benefits that accrue to the insured government employees.
Moreover, the supposed borrowers were Members of the defunct Batasang
Pambansa who themselves appropriated funds for the GSIS and were therefore
expected to be the first to see to it that the GSIS performed its tasks with the
greatest degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held
by the alleged borrowers make the information sought clearly a matter of public
interest and concern.
A second requisite must be met before the right to information may be enforced
through mandamus proceedings, viz., that the information sought must not be
among those excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and
its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle
policy issues. The Court can only declare what the law is, and not what the law
should be. Under our system of government, policy issues are within the domain of
the political branches of the government, and of the people themselves as the
repository of all State power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to
information.
There can be no doubt that right to privacy is constitutionally protected. In the
landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court,
speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. UItimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute.
state, In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector protection, in other words,
of the dignity and integrity of the individual has become increasingly important as
modem society has developed. All the forces of technological age
industrialization, urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society." [at pp. 444-445.]
When the information requested from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to information and to privacy may
arise. However, the competing interests of these rights need not be resolved in this
case. Apparent from the above-quoted statement of the Court in Morfe is that the
right to privacy belongs to the individual in his private capacity, and not to public
and governmental agencies like the GSIS. Moreover, the right cannot be invoked by
juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills
Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right
to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by
the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy,
considering the public offices they were holding at the time the loans were alleged
to have been granted. It cannot be denied that because of the interest they
generate and their newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public scrutiny
[Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29,
1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the
GSIS are private in nature and hence, are not covered by the Constitutional right to
information on matters of public concern which guarantees "(a)ccess to official
records, and to documents, and papers pertaining to official acts, transactions, or
decisions" only.
It is argued that the records of the GSIS, a government corporation performing
proprietary functions, are outside the coverage of the people's right of access to
official records.
It is further contended that since the loan function of the GSIS is merely incidental to
its insurance function, then its loan transactions are not covered by the
constitutional policy of full public disclosure and the right to information which is
applicable only to "official" transactions.
First of all, the "constituent ministrant" dichotomy characterizing government
function has long been repudiated. In ACCFA v. Confederation of Unions and
Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November
29, 1969, 30 SCRA 6441, the Court said that the government, whether carrying out
its sovereign attributes or running some business, discharges the same function of
service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary
function would not justify the exclusion of the transactions from the coverage and
scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to
include government-owned and controlled corporations and transactions entered
into by them within the coverage of the State policy of fun public disclosure is
manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions" referring
to the transactions of the State and when we say the "State" which I suppose
would include all of the various agencies, departments, ministries and
instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be distinguished
from contracts, agreements, or treaties or whatever, does the Gentleman refer to
the steps leading to the consummation of the contract, or does he refer to the
contract itself?
MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated contract,
Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.]
(Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not binding
upon the Court, are nevertheless persuasive, and considering further that
government-owned and controlled corporations, whether performing proprietary or
governmental functions are accountable to the people, the Court is convinced that
transactions entered into by the GSIS, a government-controlled corporation created
by special legislation are within the ambit of the people's right to be informed
pursuant to the constitutional policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted
by the GSIS, subject to reasonable regulations that the latter may promulgate
relating to the manner and hours of examination, to the end that damage to or loss
of the records may be avoided, that undue interference with the duties of the
custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the
second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners,
i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of
the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are
entitled to "access to official records," the Constitution does not accord them a right
to compel custodians of official records to prepare lists, abstracts, summaries and
the like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203;
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of
the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General
Manager of the Government Service Insurance System is ORDERED to allow
petitioners access to documents and records evidencing loans granted to Members
of the former Batasang Pambansa, as petitioners may specify, subject to reasonable
regulations as to the time and manner of inspection, not incompatible with this
decision, as the GSIS may deem necessary. SO ORDERED.
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA
SAMAHAN SA KANAYUNAN ("PKSK") et al. vs THOMAS G. AQUINO, in his capacity as
Undersecretary of the Department of Trade and Industry (DTI) and Chairman and
Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-
Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as
Undersecretary of the Department of Foreign Affairs (DFA) et al.
CARPIO MORALES, J.:
G.R. No. 170516 July 16, 2008
Petitioners non-government organizations, Congresspersons, citizens and
taxpayers seek via the present petition for mandamus and prohibition to obtain
from respondents the full text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January
25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade
agreements then being negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the
negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine
Coordinating Committee created under Executive Order No. 213 ("Creation of A
Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines
Economic Partnership Agreement")1 to study and negotiate the proposed JPEPA, and
to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino
did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by
letter of November 2, 2005, replied that the Congressman shall be provided with a
copy thereof "once the negotiations are completed and as soon as a thorough legal
review of the proposed agreement has been conducted."
In a separate move, the House Committee, through Congressman Herminio G. Teves,
requested Executive Secretary Eduardo Ermita to furnish it with "all documents on
the subject including the latest draft of the proposed agreement, the requests and
offers etc."2 Acting on the request, Secretary Ermita, by letter of June 23, 2005,
wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign]
A[ffairs] explains that the Committees request to be furnished all documents on the
JPEPA may be difficult to accomplish at this time, since the proposed Agreement has
been a work in progress for about three years. A copy of the draft JPEPA will however
be forwarded to the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the
latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
Commission does not have a copy of the documents being requested, albeit he was
certain that Usec. Aquino would provide the Congressman with a copy "once the
negotiation is completed." And by letter of July 18, 2005, NEDA Assistant Director-
General Margarita R. Songco informed the Congressman that his request addressed
to Director-General Neri had been forwarded to Usec. Aquino who would be "in the
best position to respond" to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to
issue a subpoena for the most recent draft of the JPEPA, but the same was not
pursued because by Committee Chairman Congressman Teves information, then
House Speaker Jose de Venecia had requested him to hold in abeyance the issuance
of the subpoena until the President gives her consent to the disclosure of the
documents.3
Amid speculations that the JPEPA might be signed by the Philippine government
within December 2005, the present petition was filed on December 9, 2005.4 The
agreement was to be later signed on September 9, 2006 by President Gloria
Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland,
following which the President endorsed it to the Senate for its concurrence pursuant
to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by
the Philippines with another country in the event the Senate grants its consent to it,
covers a broad range of topics which respondents enumerate as follows: trade in
goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of
natural persons, cooperation, competition policy, mutual recognition, dispute
avoidance and settlement, improvement of the business environment, and general
and final provisions.5
While the final text of the JPEPA has now been made accessible to the public since
September 11, 2006,6 respondents do not dispute that, at the time the petition was
filed up to the filing of petitioners Reply when the JPEPA was still being negotiated
the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of
the petition, the Court finds it necessary to first resolve some material procedural
issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must
be instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right.7 Respondents deny that petitioners have such standing
to sue. "[I]n the interest of a speedy and definitive resolution of the substantive
issues raised," however, respondents consider it sufficient to cite a portion of the
ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need for a
"personal stake in the outcome of the controversy" on questions of standing.
In a petition anchored upon the right of the people to information on matters of
public concern, which is a public right by its very nature, petitioners need not show
that they have any legal or special interest in the result, it being sufficient to show
that they are citizens and, therefore, part of the general public which possesses the
right.9 As the present petition is anchored on the right to information and petitioners
are all suing in their capacity as citizens and groups of citizens including petitioners-
members of the House of Representatives who additionally are suing in their
capacity as such, the standing of petitioners to file the present suit is grounded in
jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two
States parties,"10 public disclosure of the text of the JPEPA after its signing by the
President, during the pendency of the present petition, has been largely rendered
moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two States. Article
164 of the JPEPA itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the procedures required by the
laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the
Governments of the Parties exchange diplomatic notes informing each other that
their respective legal procedures necessary for entry into force of this Agreement
have been completed. It shall remain in force unless terminated as provided for in
Article 165.11 (Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of
the legal procedures which must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition
has become moot and academic to the extent that it seeks the disclosure of the "full
text" thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the
course of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners
demand for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to information on
matters of public concern13 and contravenes other constitutional provisions on
transparency, such as that on the policy of full public disclosure of all transactions
involving public interest.14 Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all
levels of social, political, and economic decision-making.15 Lastly, they proffer that
divulging the contents of the JPEPA only after the agreement has been concluded will
effectively make the Senate into a mere rubber stamp of the Executive, in violation
of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest
text of the JPEPA are, except for the last, the same as those cited for the disclosure
of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being purely speculatory
given that the Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching
of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. Public concern like public interest is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.16
(Underscoring supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that
the Philippine and Japanese offers submitted during the negotiations towards its
execution are matters of public concern. This, respondents do not dispute. They only
claim that diplomatic negotiations are covered by the doctrine of executive privilege,
thus constituting an exception to the right to information and the policy of full public
disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the
policy of full public disclosure is absolute, there being matters which, albeit of public
concern or public interest, are recognized as privileged in nature. The types of
information which may be considered privileged have been elucidated in Almonte v.
Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estates Authority,19 and most
recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine
of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to
justify it and the context in which it is made.21 In the present case, the ground for
respondents claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes
matters of diplomatic character and under negotiation and review. In this case, the
privileged character of the diplomatic negotiations has been categorically invoked
and clearly explained by respondents particularly respondent DTI Senior
Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to
negotiations and legal review by the parties fall under the exceptions to the right of
access to information on matters of public concern and policy of public disclosure.
They come within the coverage of executive privilege. At the time when the
Committee was requesting for copies of such documents, the negotiations were
ongoing as they are still now and the text of the proposed JPEPA is still uncertain and
subject to change. Considering the status and nature of such documents then and
now, these are evidently covered by executive privilege consistent with existing
legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the
"rolling texts" which may undergo radical change or portions of which may be totally
abandoned. Furthermore, the negotiations of the representatives of the Philippines
as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information
sought involves a diplomatic matter, but that it pertains to diplomatic negotiations
then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court in
Chavez v. PCGG held that "information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest."23 Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus24 wherein the
Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RP-
US Military Bases Agreement.25 The Court denied the petition, stressing that
"secrecy of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to
information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of
decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature. Although much has been said about "open" and
"secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words of Mr.
Stimson:
"A complicated negotiation . . . cannot be carried through without many, many
private talks and discussion, man to man; many tentative suggestions and
proposals. Delegates from other countries come and tell you in confidence of their
troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and
would not do under other circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations in another conference?
(United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be said that there is no
more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open covenants, openly
arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before it
is approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp.26 that the President is the sole organ of the nation in its negotiations
with foreign countries, viz:
"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great
argument of March 7, 1800, in the House of Representatives, "The President is the
sole organ of the nation in its external relations, and its sole representative with
foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in
the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final
text of the JPEPA may not be kept perpetually confidential since there should be
"ample opportunity for discussion before [a treaty] is approved" the offers
exchanged by the parties during the negotiations continue to be privileged even
after the JPEPA is published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding that "historic
confidentiality"27 would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing
their views during negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears noting that
treaty negotiations, or any negotiation for that matter, normally involve a process of
quid pro quo, and oftentimes negotiators have to be willing to grant concessions in
an area of lesser importance in order to obtain more favorable terms in an area of
greater national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that
publicity leads to "grandstanding," tends to freeze negotiating positions, and inhibits
the give-and-take essential to successful negotiation. As Sissela Bok points out, if
"negotiators have more to gain from being approved by their own sides than by
making a reasoned agreement with competitors or adversaries, then they are
inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little
option. It would be a brave, or foolish, Arab leader who expressed publicly a
willingness for peace with Israel that did not involve the return of the entire West
Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing
settlements from Judea and Samaria in return for peace.28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction,
the JPEPA negotiations constituting no exception. It bears emphasis, however, that
such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type
of information as privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the claim is made may
it be determined if there is a public interest that calls for the disclosure of the
desired information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the
treaty involved. They stress that PMPF v. Manglapus involved the Military Bases
Agreement which necessarily pertained to matters affecting national security;
whereas the present case involves an economic treaty that seeks to regulate trade
and commerce between the Philippines and Japan, matters which, unlike those
covered by the Military Bases Agreement, are not so vital to national security to
disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate v. Ermita29 that
executive privilege has encompassed claims of varying kinds, such that it may even
be more accurate to speak of "executive privileges," cautions against such
generalization.
While there certainly are privileges grounded on the necessity of safeguarding
national security such as those involving military secrets, not all are founded
thereon. One example is the "informers privilege," or the privilege of the
Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that
law.30 The suspect involved need not be so notorious as to be a threat to national
security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only
would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are
presumed privileged without distinguishing between those which involve matters of
national security and those which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. x x x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that "the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing." 32 This qualification applies whether the privilege is being invoked in
the context of a judicial trial or a congressional investigation conducted in aid of
legislation.33
Closely related to the "presidential communications" privilege is the deliberative
process privilege recognized in the United States. As discussed by the U.S. Supreme
Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents
reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated. Notably, the
privileged status of such documents rests, not on the need to protect national
security but, on the "obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page
news," the objective of the privilege being to enhance the quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-
1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind
%2fdefault.wl&mt=WLIGeneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to the deliberative
process and presidential communications privilege. It may be readily perceived that
the rationale for the confidential character of diplomatic negotiations, deliberative
process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas
between the negotiating parties by shielding such negotiations from public view.
Similar to the privilege for presidential communications, the diplomatic negotiations
privilege seeks, through the same means, to protect the independence in decision-
making of the President, particularly in its capacity as "the sole organ of the nation
in its external relations, and its sole representative with foreign nations." And, as
with the deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the
public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury37 enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that case sought
access to notes taken by a member of the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft
language agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a
deliberative process. Much give-and-take must occur for the countries to reach an
accord. A description of the negotiations at any one point would not provide an
onlooker a summary of the discussions which could later be relied on as law. It would
not be "working law" as the points discussed and positions agreed on would be
subject to change at any date until the treaty was signed by the President and
ratified by the Senate.
The policies behind the deliberative process privilege support non-disclosure. Much
harm could accrue to the negotiations process if these notes were revealed.
Exposure of the pre-agreement positions of the French negotiators might well offend
foreign governments and would lead to less candor by the U. S. in recording the
events of the negotiations process. As several months pass in between negotiations,
this lack of record could hinder readily the U. S. negotiating team. Further disclosure
would reveal prematurely adopted policies. If these policies should be changed,
public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to
releasing drafts of the treaty, particularly when the notes state the tentative
provisions and language agreed on. As drafts of regulations typically are protected
by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue
Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
accorded the same protection. (Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical
consequence from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL),
et al. v. Office of U.S. Trade Representative38 where the plaintiffs sought
information relating to the just-completed negotiation of a United States-Chile Free
Trade Agreement the same district court, this time under Judge Friedman,
consciously refrained from applying the doctrine in Fulbright and ordered the
disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the
doctrine in Fulbright, a discussion of why the district court did not apply the same
would help illumine this Courts own reasons for deciding the present case along the
lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of Information Act
(FOIA).39 In order to qualify for protection under Exemption 5, a document must
satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature,
and (2) it must be both pre-decisional and part of the agency's deliberative or
decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context"
between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiators notes that were sought in Fulbright to be
"clearly internal," whereas the documents being sought in CIEL were those produced
by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright
being clearly internal in character, the question of disclosure therein turned not on
the threshold requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative
process. On this basis, Judge Friedman found that "Judge Green's discussion [in
Fulbright] of the harm that could result from disclosure therefore is irrelevant, since
the documents at issue [in CIEL] are not inter-agency, and the Court does not reach
the question of deliberative process." (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
irrelevant in light of its distinct factual setting. Whether this conclusion was valid a
question on which this Court would not pass the ruling in Fulbright that
"[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process" was left standing, since the CIEL court explicitly stated that it
did not reach the question of deliberative process.

Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to
the Philippine government, namely, the Japanese representatives in the JPEPA
negotiations, and to that extent this case is closer to the factual circumstances of
CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative
process privilege requires that diplomatic negotiations should also be accorded
privileged status, even if the documents subject of the present case cannot be
described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information
based on its finding that the first requirement of FOIA Exemption 5 that the
documents be inter-agency was not met. In determining whether the government
may validly refuse disclosure of the exchanges between the U.S. and Chile, it
necessarily had to deal with this requirement, it being laid down by a statute binding
on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine
courts, when assessing a claim of privilege for diplomatic negotiations, are more free
to focus directly on the issue of whether the privilege being claimed is indeed
supported by public policy, without having to consider as the CIEL court did if
these negotiations fulfill a formal requirement of being "inter-agency." Important
though that requirement may be in the context of domestic negotiations, it need not
be accorded the same significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the
reasons explained above, the Court sees no reason to modify, much less abandon,
the doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus
from the present case is the fact that the petitioners therein consisted entirely of
members of the mass media, while petitioners in the present case include members
of the House of Representatives who invoke their right to information not just as
citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements
from the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the
mass media, it would be incorrect to claim that the doctrine laid down therein has no
bearing on a controversy such as the present, where the demand for information has
come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto
lose all force and effect simply because the same privilege is now being claimed
under different circumstances. The probability of the claim succeeding in the new
context might differ, but to say that the privilege, as such, has no validity at all in
that context is another matter altogether.
The Courts statement in Senate v. Ermita that "presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of considerations
[state secrets privilege, informers privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations,"41 implies that a privilege,
once recognized, may be invoked under different procedural settings. That this
principle holds true particularly with respect to diplomatic negotiations may be
inferred from PMPF v. Manglapus itself, where the Court held that it is the President
alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens demands for information, but also in the context of legislative
investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of
diplomatic negotiations cannot be considered irrelevant in resolving the present
case, the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this
case, petitioners proffer that "the socio-political and historical contexts of the two
cases are worlds apart." They claim that the constitutional traditions and concepts
prevailing at the time PMPF v. Manglapus came about, particularly the school of
thought that the requirements of foreign policy and the ideals of transparency were
incompatible with each other or the "incompatibility hypothesis," while valid when
international relations were still governed by power, politics and wars, are no longer
so in this age of international cooperation.42
Without delving into petitioners assertions respecting the "incompatibility
hypothesis," the Court notes that the ruling in PMPF v. Manglapus is grounded more
on the nature of treaty negotiations as such than on a particular socio-political
school of thought. If petitioners are suggesting that the nature of treaty negotiations
have so changed that "[a]n ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides" no longer
"lead[s] to widespread propaganda to block the negotiations," or that parties in
treaty negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a
reasonable amount of confidentiality so as not to jeopardize the diplomatic process."
They argue, however, that the same is privileged "only at certain stages of the
negotiating process, after which such information must necessarily be revealed to
the public."43 They add that the duty to disclose this information was vested in the
government when the negotiations moved from the formulation and exploratory
stage to the firming up of definite propositions or official recommendations, citing
Chavez v. PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the
doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose
"definite propositions of the government" does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information,
however, must constitute definite propositions by the government and should not
cover recognized exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public order. x x x46
(Emphasis and underscoring supplied)

It follows from this ruling that even definite propositions of the government may not
be disclosed if they fall under "recognized exceptions." The privilege for diplomatic
negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege
against disclosure, even against the demands of members of Congress for
information, the Court shall now determine whether petitioners have shown the
existence of a public interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into
account. One is the presumed public interest in favor of keeping the subject
information confidential, which is the reason for the privilege in the first place, and
the other is the public interest in favor of disclosure, the existence of which must be
shown by the party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public
interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,48
Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re
Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege
against the subpoena duces tecum of a district court in a criminal case, emphasized
the need to balance such claim of privilege against the constitutional duty of courts
to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process of law
and gravely impair the basic function of the courts. A Presidents acknowledged
need for confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The Presidents broad interest in
confidentiality of communications will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on the pending
criminal cases. (Emphasis, italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the
presidential communications privilege against the subpoena duces tecum of a
Senate committee, spoke of the need to balance such claim with the duty of
Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure
that the President and those upon whom he directly relies in the performance of his
duties could continue to work under a general assurance that their deliberations
would remain confidential. So long as the presumption that the public interest favors
confidentiality can be defeated only by a strong showing of need by another
institution of government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the President's
deliberations- we believed in Nixon v. Sirica, and continue to believe, that the
effective functioning of the presidential office will not be impaired. x x x
x x x xThe sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. x x x (Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential
communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a
sufficient showing of need. This need determination is to be made flexibly on a case-
by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted
the district court must undertake a fresh balancing of the competing interests,"
taking into account factors such as "the relevance of the evidence," "the availability
of other evidence," "the seriousness of the litigation," "the role of the government,"
and the "possibility of future timidity by government employees. x x x (Emphasis,
italics and underscoring supplied)
Petitioners have failed to present the strong and "sufficient showing of need"
referred to in the immediately cited cases. The arguments they proffer to establish
their entitlement to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the
JPEPA negotiation process effectively results in the bargaining away of their
economic and property rights without their knowledge and participation, in violation
of the due process clause of the Constitution. They claim, moreover, that it is
essential for the people to have access to the initial offers exchanged during the
negotiations since only through such disclosure can their constitutional right to
effectively participate in decision-making be brought to life in the context of
international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it
to state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these "alleged consultations" as "woefully selective and inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine
and Japanese representatives have not been disclosed to the public, the Court shall
pass upon the issue of whether access to the documents bearing on them is, as
petitioners claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure
of the full text of the JPEPA to the public since September 11, 2006, even as it is still
being deliberated upon by the Senate and, therefore, not yet binding on the
Philippines. Were the Senate to concur with the validity of the JPEPA at this moment,
there has already been, in the words of PMPF v. Manglapus, "ample opportunity for
discussion before [the treaty] is approved."
The text of the JPEPA having been published, petitioners have failed to convince this
Court that they will not be able to meaningfully exercise their right to participate in
decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens
have already publicly expressed their views on the JPEPA, their comments not being
limited to general observations thereon but on its specific provisions. Numerous
articles and statements critical of the JPEPA have been posted on the Internet.54
Given these developments, there is no basis for petitioners claim that access to the
Philippine and Japanese offers is essential to the exercise of their right to participate
in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim
to have a right to the subject documents on the basis of Congress inherent power to
regulate commerce, be it domestic or international. They allege that Congress
cannot meaningfully exercise the power to regulate international trade agreements
such as the JPEPA without being given copies of the initial offers exchanged during
the negotiations thereof. In the same vein, they argue that the President cannot
exclude Congress from the JPEPA negotiations since whatever power and authority
the President has to negotiate international trade agreements is derived only by
delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and
Sections 401 and 402 of Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to
negotiate treaties and international agreements, but the power to fix tariff rates,
import and export quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of
Article VII the article on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed in
BAYAN v. Executive Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head
of State, is the sole organ and authority in the external affairs of the country. In
many ways, the President is the chief architect of the nation's foreign policy; his
"dominance in the field of foreign relations is (then) conceded." Wielding vast
powers and influence, his conduct in the external affairs of the nation, as Jefferson
describes, is "executive altogether."
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at
least two thirds vote of all the members of the Senate. In this light, the negotiation
of the VFA and the subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is powerless to
invade it. x x x (Italics in the original; emphasis and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary57 where the Court ruled:
In our system of government, the President, being the head of state, is regarded as
the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress,
and is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in
the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of the
President to enter into trade agreements with foreign nations provided under P.D.
146458 may be interpreted as an acknowledgment of a power already inherent in its
office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President must
still ensure that all treaties will substantively conform to all the relevant provisions of
the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section
21 provides for Senate concurrence, such pertains only to the validity of the treaty
under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a whole that has been given the authority to
concur as a means of checking the treaty-making power of the President, but only
the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens,
petitioners-members of the House of Representatives fail to present a "sufficient
showing of need" that the information sought is critical to the performance of the
functions of Congress, functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same
defective, not having been done seasonably as it was raised only in their Comment
to the present petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to
the present petition does not mean that the claim of privilege should not be
credited. Petitioners position presupposes that an assertion of the privilege should
have been made during the House Committee investigations, failing which
respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested
respondents for copies of the documents subject of this case, respondents replied
that the negotiations were still on-going and that the draft of the JPEPA would be
released once the text thereof is settled and complete. There was no intimation that
the requested copies are confidential in nature by reason of public policy. The
response may not thus be deemed a claim of privilege by the standards of Senate v.
Ermita, which recognizes as claims of privilege only those which are accompanied by
precise and certain reasons for preserving the confidentiality of the information
being sought.
Respondents failure to claim the privilege during the House Committee hearings
may not, however, be construed as a waiver thereof by the Executive branch. As the
immediately preceding paragraph indicates, what respondents received from the
House Committee and petitioner-Congressman Aguja were mere requests for
information. And as priorly stated, the House Committee itself refrained from
pursuing its earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson Congressman
Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to it
becomes necessary, the fact remains that such requests are not a compulsory
process. Being mere requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of inquiry.59 So long as Congress
itself finds no cause to enforce such power, there is no strict necessity to assert the
privilege. In this light, respondents failure to invoke the privilege during the House
Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents
Comment to this petition fails to satisfy in full the requirement laid down in Senate v.
Ermita that the claim should be invoked by the President or through the Executive
Secretary "by order of the President."60 Respondents claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to
the case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase "by order of the President," shall
be considered as partially complying with the requirement laid down in Senate v.
Ermita. The requirement that the phrase "by order of the President" should
accompany the Executive Secretarys claim of privilege is a new rule laid down for
the first time in Senate v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition.61 A strict application of this
requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to
protect our peoples right to information against any abuse of executive privilege. It
is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive
privilege, should be careful not to veer towards the opposite extreme, to the point
that it would strike down as invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not
yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that "it will be turning
somersaults with history to contend that the President is the sole organ for external
relations" in that jurisdiction. With regard to this opinion, We make only the following
observations:
There is, at least, a core meaning of the phrase "sole organ of the nation in its
external relations" which is not being disputed, namely, that the power to directly
negotiate treaties and international agreements is vested by our Constitution only in
the Executive. Thus, the dissent states that "Congress has the power to regulate
commerce with foreign nations but does not have the power to negotiate
international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by
asking for the subject JPEPA documents, are not seeking to directly participate in the
negotiations of the JPEPA, hence, they cannot be prevented from gaining access to
these documents.
On the other hand, We hold that this is one occasion where the following ruling in
Agan v. PIATCO63 and in other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those that
cannot be done directly cannot be done indirectly. To declare the PIATCO contracts
valid despite the clear statutory prohibition against a direct government guarantee
would not only make a mockery of what the BOT Law seeks to prevent -- which is to
expose the government to the risk of incurring a monetary obligation resulting from
a contract of loan between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT Law useless for what
it seeks to achieve - to make use of the resources of the private sector in the
"financing, operation and maintenance of infrastructure and development projects"
which are necessary for national growth and development but which the
government, unfortunately, could ill-afford to finance at this point in time.64
Similarly, while herein petitioners-members of the House of Representatives may not
have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what
it sought to achieve when it vested the power of direct negotiation solely with the
President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines, may
be gathered from Hamiltons explanation of why the U.S. Constitution excludes the
House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive knowledge of
foreign politics; a steady and systematic adherence to the same views; a nice and
uniform sensibility to national character, decision, secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very complication of the
business by introducing a necessity of the concurrence of so many different bodies,
would of itself afford a solid objection. The greater frequency of the calls upon the
house of representatives, and the greater length of time which it would often be
necessary to keep them together when convened, to obtain their sanction in the
progressive stages of a treaty, would be source of so great inconvenience and
expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine
Constitution, unlike that of the U.S., does not even grant the Senate the power to
advise the Executive in the making of treaties, but only vests in that body the power
to concur in the validity of the treaty after negotiations have been concluded.66
Much less, therefore, should it be inferred that the House of Representatives has this
power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to
the contravention of the public interests articulated above which the Constitution
sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic
secrets privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of
Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;
In their Comment, respondents contend that "the negotiations of the representatives
of the Philippines as well as of Japan must be allowed to explore alternatives in the
course of the negotiations in the same manner as judicial deliberations and working
drafts of opinions are accorded strict confidentiality." That respondents liken the
documents involved in the JPEPA negotiations to judicial deliberations and working
drafts of opinions evinces, by itself, that they were claiming confidentiality not only
until, but even after, the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has
been promulgated by the courts. The same holds true with respect to working drafts
of opinions, which are comparable to intra-agency recommendations. Such intra-
agency recommendations are privileged even after the position under consideration
by the agency has developed into a definite proposition, hence, the rule in this
jurisdiction that agencies have the duty to disclose only definite propositions, and
not the inter-agency and intra-agency communications during the stage when
common assertions are still being formulated.67
3. The dissent claims that petitioner-members of the House of Representatives have
sufficiently shown their need for the same documents to overcome the privilege.
Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue
its earlier intention to subpoena the documents. This strongly undermines the
assertion that access to the same documents by the House Committee is critical to
the performance of its legislative functions. If the documents were indeed critical,
the House Committee should have, at the very least, issued a subpoena duces
tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a
legislative body, rather than leaving it to the discretion of individual Congressmen
whether to pursue an action or not. Such acts would have served as strong indicia
that Congress itself finds the subject information to be critical to its legislative
functions.
Further, given that respondents have claimed executive privilege, petitioner-
members of the House of Representatives should have, at least, shown how its lack
of access to the Philippine and Japanese offers would hinder the intelligent crafting
of legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate Select Committee
v. Nixon68 held, the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of the function in
the performance of which the material was sought, but also the degree to which the
material was necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives
have been free to use it for any legislative purpose they may see fit. Since such
publication, petitioners need, if any, specifically for the Philippine and Japanese
offers leading to the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how
disclosing them after the conclusion of negotiations would impair the performance of
its functions. The contention, with due respect, misplaces the onus probandi. While,
in keeping with the general presumption of transparency, the burden is initially on
the Executive to provide precise and certain reasons for upholding its claim of
privilege, once the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party seeking information
to overcome the privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege
for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose
that their disclosure would impair the performance of executive functions. It was
then incumbent on petitioner- requesting parties to show that they have a strong
need for the information sufficient to overcome the privilege. They have not,
however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is
claiming the privilege "by order of the President," the same may not be strictly
applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart
even in the United States from which the concept of executive privilege was
adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69
citing In re Sealed Case,70 "the issue of whether a President must personally invoke
the [presidential communications] privilege remains an open question." U.S. v.
Reynolds,71 on the other hand, held that "[t]here must be a formal claim of
privilege, lodged by the head of the department which has control over the matter,
after actual personal consideration by that officer."
The rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its
highly exceptional nature. The Courts recognition that the Executive Secretary also
bears the power to invoke the privilege, provided he does so "by order of the
President," is meant to avoid laying down too rigid a rule, the Court being aware that
it was laying down a new restriction on executive privilege. It is with the same spirit
that the Court should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the judgment in
Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the
dissent implies that the Court therein erred in citing US v. Curtiss Wright72 and the
book entitled The New American Government and Its Work73 since these
authorities, so the dissent claims, may not be used to calibrate the importance of
the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the
executive and legislative branches of government, the factual setting thereof was
different from that of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the citizens right to
information.
That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information in the
course of laying down a ruling on the public right to information only serves to
underscore the principle mentioned earlier that the privileged character accorded to
diplomatic negotiations does not ipso facto lose all force and effect simply because
the same privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens
and not an executive-legislative conflict, but so did Chavez v. PEA74 which held that
"the [publics] right to information . . . does not extend to matters recognized as
privileged information under the separation of powers." What counts as privileged
information in an executive-legislative conflict is thus also recognized as such in
cases involving the publics right to information.
Chavez v. PCGG75 also involved the publics right to information, yet the Court
recognized as a valid limitation to that right the same privileged information based
on separation of powers closed-door Cabinet meetings, executive sessions of
either house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in
the context of an executive-legislative conflict or a citizens demand for information,
as closely intertwined, such that the principles applicable to one are also applicable
to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by
entirely different criteria in each context, this may give rise to the absurd result
where Congress would be denied access to a particular information because of a
claim of executive privilege, but the general public would have access to the same
information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear
and present danger" test for the assessment of claims of privilege against citizens
demands for information. If executive information, when demanded by a citizen, is
privileged only when there is a clear and present danger of a substantive evil that
the State has a right to prevent, it would be very difficult for the Executive to
establish the validity of its claim in each instance. In contrast, if the demand comes
from Congress, the Executive merely has to show that the information is covered by
a recognized privilege in order to shift the burden on Congress to present a strong
showing of need. This would lead to a situation where it would be more difficult for
Congress to access executive information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a
"strong showing of need," whether that party is Congress or a private citizen.
The rule that the same "showing of need" test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing the
context in which an executive privilege controversy may happen to be placed.
Rather, it affirms it, for it means that the specific need being shown by the party
seeking information in every particular instance is highly significant in determining
whether to uphold a claim of privilege. This "need" is, precisely, part of the context
in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied
to executive privilege controversies across different contexts, the Court in PMPF v.
Manglapus did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in
support of the confidentiality of treaty negotiations would be different had it been
written after the FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine
setting considering its elevation as a constitutional right," we submit that the
elevation of such right as a constitutional right did not set it free from the legitimate
restrictions of executive privilege which is itself constitutionally-based.76 Hence, the
comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used "need" as a test to
uphold or allow inroads into rights guaranteed under the Constitution. With due
respect, we assert otherwise. The Court has done so before, albeit without using the
term "need."
In executive privilege controversies, the requirement that parties present a
"sufficient showing of need" only means, in substance, that they should show a
public interest in favor of disclosure sufficient in degree to overcome the claim of
privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such
a balancing of interests is certainly not new in constitutional adjudication involving
fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent,
applied just such a test.
Given that the dissent has clarified that it does not seek to apply the "clear and
present danger" test to the present controversy, but the balancing test, there seems
to be no substantial dispute between the position laid down in this ponencia and
that reflected in the dissent as to what test to apply. It would appear that the only
disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that "it suffices that information is of public
concern for it to be covered by the right, regardless of the publics need for the
information," and that the same would hold true even "if they simply want to know it
because it interests them." As has been stated earlier, however, there is no dispute
that the information subject of this case is a matter of public concern. The Court has
earlier concluded that it is a matter of public concern, not on the basis of any
specific need shown by petitioners, but from the very nature of the JPEPA as an
international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has
been established that the subject information is indeed covered by the privilege
being claimed, can a party overcome the same by merely asserting that the
information being demanded is a matter of public concern, without any further
showing required? Certainly not, for that would render the doctrine of executive
privilege of no force and effect whatsoever as a limitation on the right to
information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing
the documents of the JPEPA negotiations, the Philippine government runs the grave
risk of betraying the trust reposed in it by the Japanese representatives, indeed, by
the Japanese government itself. How would the Philippine government then explain
itself when that happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it "because it interests
them."
Thus, the Court holds that, in determining whether an information is covered by the
right to information, a specific "showing of need" for such information is not a
relevant consideration, but only whether the same is a matter of public concern.
When, however, the government has claimed executive privilege, and it has
established that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that the information
is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively
and reasonably participate in social, political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage
where the people can exercise their right to participate in the discussion whether the
Senate should concur in its ratification or not." (Emphasis supplied) It adds that this
right "will be diluted unless the people can have access to the subject JPEPA
documents". What, to the dissent, is a dilution of the right to participate in decision-
making is, to Us, simply a recognition of the qualified nature of the publics right to
information. It is beyond dispute that the right to information is not absolute and
that the doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making
would be diluted, We reiterate that our people have been exercising their right to
participate in the discussion on the issue of the JPEPA, and they have been able to
articulate their different opinions without need of access to the JPEPA negotiation
documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was
there addressing only the Presidents assertion of privilege in the context of a
criminal trial, not a civil litigation nor a congressional demand for information. What
this caveat means, however, is only that courts must be careful not to hastily apply
the ruling therein to other contexts. It does not, however, absolutely mean that the
principles applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services80 which involved former President Nixons
invocation of executive privilege to challenge the constitutionality of the
"Presidential Recordings and Materials Preservation Act"81 and the above-
mentioned In re Sealed Case which involved a claim of privilege against a subpoena
duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in
the other cases already mentioned, We are merely affirming what the Chief Justice
stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability82 a
case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance
between the Presidents generalized interest in confidentiality and congressional
demands for information, "[n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar."83 While the Court was
divided in Neri, this opinion of the Chief Justice was not among the points of
disagreement, and We similarly hold now that the Nixon case is a useful guide in the
proper resolution of the present controversy, notwithstanding the difference in
context.
Verily, while the Court should guard against the abuse of executive privilege, it
should also give full recognition to the validity of the privilege whenever it is claimed
within the proper bounds of executive power, as in this case. Otherwise, the Court
would undermine its own credibility, for it would be perceived as no longer aiming to
strike a balance, but seeking merely to water down executive privilege to the point
of irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a copy of the full text of the
JPEPA has become moot and academic, it having been made accessible to the public
since September 11, 2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction
and the reasons proffered by petitioners against the application of the ruling therein
to the present case have not persuaded the Court. Moreover, petitioners both
private citizens and members of the House of Representatives have failed to
present a "sufficient showing of need" to overcome the claim of privilege in this
case.
That the privilege was asserted for the first time in respondents Comment to the
present petition, and not during the hearings of the House Special Committee on
Globalization, is of no moment, since it cannot be interpreted as a waiver of the
privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing
from the ruling in Senate v. Ermita that executive privilege should be invoked by the
President or through the Executive Secretary "by order of the President."
WHEREFORE, the petition is DISMISSED. SO ORDERED.
G.R. No. 177314 May 4, 2007 ( NOTE: Conso case w/G.R. No. 177271
May 4, 2007)
REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY
KATARUNGAN FOUNDATION, Petitioners, vs.
THE COMMISSION ON ELECTIONS, Respondent.
D E C I S I O N: GARCIA, J.:
Before the Court are these two consolidated petitions for certiorari and mandamus
to nullify and set aside certain issuances of the Commission on Elections (Comelec)
respecting party-list groups which have manifested their intention to participate in
the party-list elections on May 14, 2007.
In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act
(BA-RA 7941, for short) and the Urban Poor for Legal Reforms (UP-LR, for short)
assail the various Comelec resolutions accrediting private respondents Biyaheng
Pinoy et al., to participate in the forthcoming party-list elections on May 14, 2007
without simultaneously determining whether or not their respective nominees
possess the requisite qualifications defined in Republic Act (R.A.) No. 7941, or the
"Party-List System Act" and belong to the marginalized and underrepresented sector
each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners
Loreta Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation
impugn Comelec Resolution 07-0724 dated April 3, 2007 effectively denying their
request for the release or disclosure of the names of the nominees of the fourteen
(14) accredited participating party-list groups mentioned in petitioner Rosales
previous letter-request.
While both petitions commonly seek to compel the Comelec to disclose or publish
the names of the nominees of the various party-list groups named in the petitions,1
the petitioners in G.R. No. 177271 have the following additional prayers: 1) that the
33 private respondents named therein be "declare[d] as unqualified to participate in
the party-list elections as sectoral organizations, parties or coalition for failure to
comply with the guidelines prescribed by the [Court] in [Ang Bagong Bayani v.
Comelec2]" and, 2) correspondingly, that the Comelec be enjoined from allowing
respondent groups from participating in the May 2007 elections.
In separate resolutions both dated April 24, 2007, the Court en banc required the
public and private respondents to file their respective comments on the petitions
within a non-extendible period of five (5) days from notice. Apart from respondent
Comelec, seven (7) private respondents3 in G.R. No. 177271 and one party-list
group4 mentioned in G.R. No. 177314 submitted their separate comments. In the
main, the separate comments of the private respondents focused on the
untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to
nullify their accreditation as party-list groups and thus disqualify them and their
respective nominees from participating in the May 14, 2007 party-list elections.
The facts:
On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and
regulations to govern the filing of manifestation of intent to participate and
submission of names of nominees under the party-list system of representation in
connection with the May 14, 2007 elections. Pursuant thereto, a number of
organized groups filed the necessary manifestations. Among these and ostensibly
subsequently accredited by the Comelec to participate in the 2007 elections - are 14
party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3) AKBAY PINOY; (4)
AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD;
(10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14)
AGING PINOY. Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an
overlapping, list.
Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent
Petition to Disqualify, thereunder seeking to disqualify the nominees of certain party-
list organizations. Both petitioners appear not to have the names of the nominees
sought to be disqualified since they still asked for a copy of the list of nominees.
Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to be
resolved.
Meanwhile, reacting to the emerging public perception that the individuals behind
the aforementioned 14 party-list groups do not, as they should, actually represent
the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed
a letter5 dated March 29, 2007 to Director Alioden Dalaig of the Comelecs Law
Department requesting a list of that groups nominees. Another letter6 of the same
tenor dated March 31, 2007 followed, this time petitioner Rosales impressing upon
Atty. Dalaig the particular urgency of the subject request.
Neither the Comelec Proper nor its Law Department officially responded to petitioner
Rosales requests. The April 13, 2007 issue of the Manila Bulletin, however, carried
the front-page banner headline "COMELEC WONT BARE PARTY-LIST NOMINEES",7
with the following sub-heading: "Abalos says party-list polls not personality
oriented."
On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their
own behalves and as counsels of petitioner Rosales, forwarded a letter8 to the
Comelec formally requesting action and definitive decision on Rosales earlier plea
for information regarding the names of several party-list nominees. Invoking their
constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at
the same time drew attention to the banner headline adverted to earlier, with a
request for the Comelec, "collectively or individually, to issue a formal clarification,
either confirming or denying the banner headline and the alleged statement of
Chairman Benjamin Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et
al., was the issuance of Comelec en banc Resolution 07-07249 under date April 3,
2007 virtually declaring the nominees names confidential and in net effect denying
petitioner Rosales basic disclosure request. In its relevant part, Resolution 07-0724
reads as follows:
RESOLVED, moreover, that the Commission will disclose/publicize the names of
party-list nominees in connection with the May 14, 2007 Elections only after 3:00
p.m. on election day.
Let the Law Department implement this resolution and reply to all letters addressed
to the Commission inquiring on the party-list nominees. (Emphasis added.)
According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007
Resolution only on April 21, 2007. She would later state the observation that the last
part of the "Order empowering the Law Department to implement this resolution
and reply to all letters inquiring on the party-list nominees is apparently a fool-
proof bureaucratic way to distort and mangle the truth and give the impression that
the antedated Resolution of April 3, 2007 is the final answer to the two formal
requests of Petitioners".10
The herein consolidated petitions are cast against the foregoing factual setting,
albeit petitioners BA-RA 7941 and UP-LR appear not to be aware, when they filed
their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution 07-0724.
To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the
accreditation accorded by the Comelec to the respondent party-list groups named in
their petition on the ground that these groups and their respective nominees do not
appear to be qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -
xxx committed grave abuse of discretion when it granted the assailed
accreditations even without simultaneously determining whether the nominees of
herein private respondents are qualified or not, or whether or not the nominees are
likewise belonging to the marginalized and underrepresented sector they claim to
represent in Congress, in accordance with No. 7 of the eight-point guidelines
prescribed by the Honorable Supreme in the Ang Bagong Bayani11 case which
states that, "not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its nominees." In the case
of private respondents, public respondent Comelec granted accreditations without
the required simultaneous determination of the qualification of the nominees as part
of the accreditation process of the party-list organization itself. (Words in bracket
added; italization in the original)12
The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR
for cancellation of accreditation on the grounds thus advanced in their petition. For,
such course of action would entail going over and evaluating the qualities of the
sectoral groups or parties in question, particularly whether or not they indeed
represent marginalized/underrepresented groups. The exercise would require the
Court to make a factual determination, a matter which is outside the office of judicial
review by way of special civil action for certiorari. In certiorari proceedings, the
Court is not called upon to decide factual issues and the case must be decided on
the undisputed facts on record.13 The sole function of a writ of certiorari is to
address issues of want of jurisdiction or grave abuse of discretion and does not
include a review of the tribunals evaluation of the evidence.14
Not lost on the Court of course is the pendency before the Comelec of SPA Case No.
07-026 in which petitioners BA-RA 7941 and UP-LR themselves seek to disqualify the
nominees of the respondent party-list groups named in their petition.
Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed grave
abuse of discretion when it granted the assailed accreditations without
simultaneously determining the qualifications of their nominees is without basis.
Nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list
nominee be determined simultaneously with the accreditation of an organization.
And as aptly pointed out by private respondent Babae Para sa Kaunlaran (Babae Ka),
Section 4 of R.A. No. 7941 requires a petition for registration of a party-list
organization to be filed with the Comelec "not later than ninety (90) days before the
election" whereas the succeeding Section 8 requires the submission "not later than
forty-five (45) days before the election" of the list of names whence party-list
representatives shall be chosen.
Now to the other but core issues of the case. The petition in G.R. No. 177314
formulates and captures the main issues tendered by the petitioners in these
consolidated cases and they may be summarized as follows:
1. Whether respondent Comelec, by refusing to reveal the names of the nominees of
the various party-list groups, has violated the right to information and free access to
documents as guaranteed by the Constitution; and
2. Whether respondent Comelec is mandated by the Constitution to disclose to the
public the names of said nominees.
While the Comelec did not explicitly say so, it based its refusal to disclose the names
of the nominees of subject party-list groups on Section 7 of R.A. 7941. This provision,
while commanding the publication and the posting in polling places of a certified list
of party-list system participating groups, nonetheless tells the Comelec not to show
or include the names of the party-list nominees in said certified list. Thus:
SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty
(60) days before election, prepare a certified list of national, regional, or sectoral
parties, organizations or coalitions which have applied or who have manifested their
desire to participate under the party-list system and distribute copies thereof to all
precincts for posting in the polling places on election day. The names of the party-list
nominees shall not be shown on the certified list. (Emphasis added.)
And doubtless part of Comelecs reason for keeping the names of the party list
nominees away from the public is deducible from the following excerpts of the news
report appearing in the adverted April 13, 2007 issue of the Manila Bulletin:
The Commission on Elections (COMELEC) firmed up yesterday its decision not to
release the names of nominees of sectoral parties, organizations, or coalitions
accredited to participate in the party-list election which will be held simultaneously
with the May 14 mid-term polls.
COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five COMELEC]
Commissioners --- believe that the party list elections must not be personality
oriented.
Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties,
organizations, or coalitions, not for their nominees.
He said there is nothing in R.A. 7941 that requires the Comelec to disclose the
names of nominees. xxx (Words in brackets and emphasis added)
Insofar as the disclosure issue is concerned, the petitions are impressed with merit.
Assayed against the non-disclosure stance of the Comelec and the given rationale
therefor is the right to information enshrined in the self-executory15 Section 7,
Article III of the Constitution, viz:
Sec.7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well to government research data used as
basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Complementing and going hand in hand with the right to information is another
constitutional provision enunciating the policy of full disclosure and transparency in
Government. We refer to Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
The right to information is a public right where the real parties in interest are the
public, or the citizens to be precise. And for every right of the people recognized as
fundamental lies a corresponding duty on the part of those who govern to respect
and protect that right. This is the essence of the Bill of Rights in a constitutional
regime.16 Without a governments acceptance of the limitations upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on
its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry.
By weight of jurisprudence, any citizen can challenge any attempt to obstruct the
exercise of his right to information and may seek its enforcement by mandamus.17
And since every citizen by the simple fact of his citizenship possesses the right to be
informed, objections on ground of locus standi are ordinarily unavailing.18
Like all constitutional guarantees, however, the right to information and its
companion right of access to official records are not absolute. As articulated in
Legaspi, supra, the peoples right to know is limited to "matters of public concern"
and is further subject to such limitation as may be provided by law. Similarly, the
policy of full disclosure is confined to transactions involving "public interest" and is
subject to reasonable conditions prescribed by law. Too, there is also the need of
preserving a measure of confidentiality on some matters, such as military, trade,
banking and diplomatic secrets or those affecting national security.19
The terms "public concerns" and "public interest" have eluded precise definition. But
both terms embrace, to borrow from Legaspi, a broad spectrum of subjects which
the public may want to know, either because these directly affect their lives, or
simply because such matters naturally whet the interest of an ordinary citizen. At
the end of the day, it is for the courts to determine, on a case to case basis, whether
or not at issue is of interest or importance to the public.
If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons
employed as sanitarians of a health department of a city are civil service eligibles,
surely the identity of candidates for a lofty elective public office should be a matter
of highest public concern and interest.
As may be noted, no national security or like concerns is involved in the disclosure of
the names of the nominees of the party-list groups in question. Doubtless, the
Comelec committed grave abuse of discretion in refusing the legitimate demands of
the petitioners for a list of the nominees of the party-list groups subject of their
respective petitions. Mandamus, therefore, lies.
The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list
nominees shall not be shown on the certified list" is certainly not a justifying card for
the Comelec to deny the requested disclosure. To us, the prohibition imposed on the
Comelec under said Section 7 is limited in scope and duration, meaning, that it
extends only to the certified list which the same provision requires to be posted in
the polling places on election day. To stretch the coverage of the prohibition to the
absolute is to read into the law something that is not intended. As it were, there is
absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or
even publishing through mediums other than the "Certified List" the names of the
party-list nominees. The Comelec obviously misread the limited non-disclosure
aspect of the provision as an absolute bar to public disclosure before the May 2007
elections. The interpretation thus given by the Comelec virtually tacks an
unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941.
The Comelecs reasoning that a party-list election is not an election of personalities
is valid to a point. It cannot be taken, however, to justify its assailed non-disclosure
stance which comes, as it were, with a weighty presumption of invalidity, impinging,
as it does, on a fundamental right to information.20 While the vote cast in a party-
list elections is a vote for a party, such vote, in the end, would be a vote for its
nominees, who, in appropriate cases, would eventually sit in the House of
Representatives.
The Court is very much aware of newspaper reports detailing the purported reasons
behind the Comelecs disinclination to release the names of party-list nominees. It is
to be stressed, however, that the Court is in the business of dispensing justice on
the basis of hard facts and applicable statutory and decisional laws. And lest it be
overlooked, the Court always assumes, at the first instance, the presumptive validity
and regularity of official acts of government officials and offices.
It has been repeatedly said in various contexts that the people have the right to
elect their representatives on the basis of an informed judgment. Hence the need for
voters to be informed about matters that have a bearing on their choice. The ideal
cannot be achieved in a system of blind voting, as veritably advocated in the
assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner v.
Romulo,21 has consistently made it clear that it frowns upon any interpretation of
the law or rules that would hinder in any way the free and intelligent casting of the
votes in an election.22 So it must be here for still other reasons articulated earlier.
In all, we agree with the petitioners that respondent Comelec has a constitutional
duty to disclose and release the names of the nominees of the party-list groups
named in the herein petitions.
WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to
nullify the accreditation of the respondents named therein. However, insofar as it
seeks to compel the Comelec to disclose or publish the names of the nominees of
party-list groups, sectors or organizations accredited to participate in the May 14,
2007 elections, the same petition and the petition in G.R. No. 177314 are GRANTED.
Accordingly, the Comelec is hereby ORDERED to immediately disclose and release
the names of the nominees of the party-list groups, sectors or organizations
accredited to participate in the May 14, 2007 party-list elections. The Comelec is
further DIRECTED to submit to the Court its compliance herewith within five (5) days
from notice hereof.
This Decision is declared immediately executory upon its receipt by the Comelec. No
pronouncement as to cost. SO ORDERED.
A.M. No. RTJ-05-1910 April 15, 2005
ALFREDO HILADO, LOPEZ SUGAR CORPORATION and FIRST FARMERS
HOLDING CORPORATION, Complainants, vs.JUDGE AMOR A. REYES,
Regional Trial Court of Manila, Branch 21, Respondent.
D E C I S I O N: CALLEJO, SR., J.:
The instant administrative matter arose when Alfredo Hilado, Lopez Sugar
Corporation and First Farmers Holding Corporation filed a verified Complaint1 dated
November 17, 2003 charging Judge Amor A. Reyes, Regional Trial Court (RTC) of
Manila, Branch 21, with gross ignorance of the law, gross inefficiency, dereliction of
duty, serious misconduct, partiality and violation of the Code of Judicial Conduct
relative to Special Proceedings No. 00-97505 for issuance of letters of administration
entitled "Intestate Estate of Roberto S. Benedicto."
Complainant Alfredo Hilado is the plaintiff in Civil Case No. 95-9137 entitled "Manuel
Lacson, et al. v. Roberto Benedicto, et al.," filed before the RTC of Bacolod City,
Branch 44, while complainants Lopez Sugar Corporation and First Farmers Holding
Corporation are the lead plaintiffs/intervenors in Civil Case No. 11178 pending
before the RTC of Bacolod City, Branch 41. Upon the death of Roberto Benedicto in
May 2000, he was substituted by his estate in the aforementioned civil cases.
Special Proceedings No. 00-97505 was raffled to the sala of the respondent Judge.
She, thereafter, appointed Julita Campos Benedicto as the administratrix of the
estate in an Order2 dated August 2, 2000, and letters of administration were,
thereafter, issued in favor of the latter. According to the complainants, the
appointed administratrix acknowledged their claims against the estate of the
deceased as major liabilities thereof in an Inventory3 dated January 18, 2001. The
complainants further alleged, thus:
5. Shortly prior to September 2001, Complainants uncovered serious lapses in
the observance and enforcement by Respondent Judge of the mandatory
prescriptions of the Rules governing the administration of the estate and in collation
and preservation of its assets.
6. Among others, Petitioners discovered that while the Respondent
Administratrix had been issued Letters of Administration as early as August 2, 2000
and had been granted by the Respondent Court, in an Order dated April 24, 2001,
[a] final extended period until May 31, 2001 for the submission of "a completed and
updated inventory and appraisal report," what had been submitted was still an
unverified, incomplete and unappraised inventory dated January 18, 2001. Worse, in
submitting the practically worthless inventory, Respondent Administratrix declined
to vouch for the accuracy of the same,
7. Likewise, it was discovered by Complainants that despite the lapse of over a
year since the issuance of her letters of administration, the Administratrix had failed
to render an annual account of her administration as mandatorily required by
Section 8 of Rule 85.4
The complainants further alleged that the respondent Judge had, likewise, approved
the sale of substantial and valuable assets of the estate without serving notice to
them and other persons interested, in violation of Section 7, Rule 89 of the Rules of
Court. Despite this, the respondent Judge failed to issue any order directing the
administratrix to comply with the rules. The records of the intestate estate
proceedings furthermore revealed a deliberate design to prejudice and preclude the
opportune participation of the complainants. Thus:
9.1 Under Section 2 of Rule 79, the application for letters of administration is
required to state, among others, "the names, ages and residences of the heirs, and
the names and residences of the creditors, of the decedent" "so far as known to the
petitioner." However, although the Petition for Letters of Administration filed by the
Administratrix acknowledged the existence of liabilities, and the List of Liabilities
submitted with her inventory named the Complainants together with the Bureau of
Internal Revenue as the major creditors of the estate, Administratrix did not name
and list Complainants as creditors of the decedent in her Petition. In fact, no
creditor was named at all.
9.2 Pursuant to Section 5 of the same Rule 79, letters of administration may be
validly issued only after it is "first shown that notice has been given as required"
by Section 3 of the same rule, that is to say, notice "to the known heirs and creditors
of the decedent and to any other persons believed to have an interest in the estate,"
given not only via publication but also by mail "addressed [to them] at their
places of residence, and deposited at least twenty (20) days before the hearing" or
by "personal service at least ten (10) days before the days of hearing "
Admittedly, no notice of whatever kind was served on Complainants.
9.3 Significantly, the Purchase and Sale Agreement disposing of the assets of
Traders Royal Bank, which the Respondent Judge approved without notice to
Complainants, explicitly, categorically and discriminatorily excluded, from the
liabilities to be assumed by the Bank of Commerce as Purchaser, Petitioners' claims
in the pending Bacolod suits against TRB and the estate, claims which had
previously been acknowledged in the [Administratrix's] Inventory as major liabilities
of the estate.5
In light of these discoveries, the complainants, through counsel, filed a
Manifestation/Motion Ex Abudanti Cautela6 dated September 24, 2001 identifying
themselves as among the major creditors in the inventory prepared by the
appointed administratrix, and prayed that the Branch Clerk of Court be required to
furnish the petitioners, through their counsel, copies of all the processes and orders
issued by the court, and to require the administratrix to serve copies of all the
proceedings to their counsel. Pending the resolution of this motion, the
complainants also filed urgent pleadings bringing to the attention of the respondent
Judge her procedural lapses.7 However, the respondent Judge issued an Order8
dated January 2, 2002 refusing to recognize the complainants as interested parties
entitled to participate and intervene in the proceedings. This compelled the
complainants to file a motion for reconsideration of the said order, which was,
likewise, denied by the respondent Judge.
According to the complainants, the respondent Judge failed to consider the fact that
no less than the appointed administratrix recognized their claims as major liabilities
of the estate. They further claimed that the respondent Judge's action only shows
that there was a deliberate design to preclude their participation in the intestate
proceedings. The complainants further alleged that a probate judge, such as the
respondent, should know the "elementary doctrines" regarding the settlement of
estates, failing which he may be held guilty of ignorance of the law. The
complainants averred that it is a well settled judicial policy to favor the liberal
participation of all parties having an interest, however minimal, in the proper
settlement of the estate of the deceased. Hence, the respondent Judge's failure to
apply and observe the elementary doctrines bearing on the settlement of estate
which are presumed to be known to a probate court reflects inexcusable ignorance
of the law.
Aside from praying that the appropriate disciplinary sanction to be meted on the
respondent Judge, the complainants also prayed that the respondent Judge be
disqualified from further trying Sp. Proc. No. 00-97505. They, likewise, prayed that
the said proceedings be forwarded to the Executive Judge of the RTC of Manila for re-
raffle to another sala.
For her part, the respondent Judge explained that prior to her Order dated January 2,
2002, the complainants, through counsel, filed a motion with a prayer that an order
be issued requiring the Branch Clerk of Court to furnish them (complainants) with
copies of all processes and orders, and to require the administratrix to serve them
copies of all pleadings in the proceedings. In her Order dated January 2, 2002, the
respondent Judge declared that under the Rules, the complainants were without
personality to participate in the intestate proceedings, thus, cannot intervene
therein, much less be furnished with copies of orders, pleadings and processes
relative thereto. The complainants filed a motion for reconsideration, which she
denied on March 12, 2002. The respondent Judge pointed out that her ruling was
elevated to the Court of Appeals (CA) via a petition for certiorari.
On the complainants' contention that she failed in her responsibility towards the
appointed administratrix of the estate, the respondent Judge explained that the
latter had already filed an initial inventory less than a year after the issuance of the
letters of administration and that the administratrix was still in the process of
preparing the supplemental inventory. Nonetheless, the respondent Judge issued an
Order dated October 16, 2003 directing the administratrix to submit an updated
inventory within thirty (30) days from receipt of the said Order. The administratrix
filed a motion for extension as she had been continuously working on the
preparation of the inventory of the estate and the delay was due to the difficulties of
verifying the decedents' stock investments. The motion for extension filed by the
administratrix was granted by the court on November 26, 2003.
The respondent Judge contended that the complaint was baseless, malicious and
was intended to harass her, and was filed in retaliation for her unfavorable rulings
against the complainants. She further contended that she resolved the motions filed
by the complainants according to her own judgment and understanding of the law
and the attendant circumstances. The respondent Judge, therefore, prayed for the
dismissal of the case for lack of merit.
The complainants filed a Supplemental Complaint on February 6, 2004 contending
that the respondent Judge had not yet required the administratrix of the estate to
submit an inventory and annual account despite the lapse of time under the rules.
They also claimed that they were again denied participation in the proceedings of
the settlement of the estate, and access to the court records which are considered
public. They prayed for the inhibition of the respondent Judge in trying Sp. Proc. No.
00-97505.
In the comment of the respondent Judge to the supplemental complaint, she
maintained that the complainants were not considered parties-in-interest since their
claims remain contingent on the outcome of the cases still pending in the RTC of
Bacolod City. The respondent Judge also pointed out that the appeal of the
complainants to her court order, declaring the latter as not parties-in-interest in the
settlement of the estate of the decedent, was still pending consideration by the
appellate court. Thus:
a) The law does not give blanket authority to any person to have access to official
records and to documents and papers pertaining to official acts. As worded, only
matters of public concern may a person [be] accorded access. In the present case,
complainants' interest is more of personal than of public concern. The ruling of the
Supreme Court in the case of Valentin L. Legaspi v. Civil Service Commission (G.R.
No. 72119, May 29, 1987) is the case in point.
"But the constitutional guarantee to information on matters of public concern is not
absolute. It does not open every door to any and all information. Under the
Constitution, access to official records, papers, etc., 'are subject to limitations as
may be provided by law' (Art. III, Sec. 7, second sentence). xxx in every case, the
availability of access to a particular public record must be circumscribed by the
nature of the information sought, i.e., (a) being of public concern or one that
involves public interest, and (b) not being exempted by law from the operation of
the constitutional guarantee. The threshold question is, therefore, whether or not
the information sought is of public interest or public concern."
b) Although complainants assert that they have the right to information based on
the cases cited in the Supplemental Complaint, it is further clarified by this
respondent that the position taken by them is utterly different because the parties
involved in the cited cases are complainants themselves while in the case at hand,
they are not considered parties-in-interest, their claim being contingent as their case
is still pending with the RTC, Branch 44, Bacolod; 9
The complainants filed a Second Supplemental Complaint on April 30, 2004,
reiterating the charges against the respondent Judge. They also filed a motion to
withdraw their previous prayer for inhibition.
In a Resolution dated August 11, 2004, the Court resolved to refer the matter to
Court of Appeals Associate Justice Remedios A. Salazar-Fernando for investigation,
report and recommendation.
In her Final Report and Recommendation dated November 8, 2004, the Investigating
Justice found that based on the records, the respondent Judge was not remiss in her
duties relative to Sp. Proc. No. 00-97505, thus:
On August 2, 2000, respondent Judge appointed Julita Campos Benedicto as
administratrix of the estate of the deceased Roberto S. Benedicto [Records, Vol. I, p.
13]. Upon filing of the bond in the amount of five million (P5,000,000) pesos,
[letters] of administration [were] issued in favor of the administratrix and [a] notice
dated August 23, 2000 to file money claims against the decedent was ordered
published.
Under Section 1, Rule 83 of the Revised Rules of Court, the administratrix should
return/file with the court a true inventory and appraisal of all the real and personal
estate of the deceased which came to her possession or knowledge.
On December 12, 2000, the administratrix filed a motion for extension of time to file
an Inventory on the ground that she was in the process of gathering documents and
data necessary for the preparation of an inventory which were made difficult
because of the very personalized way the deceased had been recording his assets
and conducting his business affairs.
On December 13, 2000, the motion for extension of item was granted.
On January 12, 2001, the administratrix filed another extension of fifteen (15) days
from January 15, 2001 within which to file an inventory which could not be finalized
due to lack of necessary data such as the probable value of some specific assets.
The motion was granted by respondent Judge.
The Inventory was submitted on January 19, 2001, which placed the estate's value
at P36,799,822.25. Accordingly, respondent Judge ordered the payment of
additional filing fee based on the declared value of the estate [Ibid, p. 58].
After finding that the initial inventory had no appraisal on March 26, 2001,
respondent Judge directed the administratrix to submit the completed and updated
inventory and appraisal report. Additional bond was also ordered to be posted [Ibid,
p. 60].
The administratrix asked for an extension of time or until May 31, 2001 to file an
updated inventory [Ibid, p. 63]. The same was granted on April 24, 2001 [Ibid, p.
67].
On the preceding facts alone, it could be gleaned that respondent Judge dutifully
fulfilled her responsibility in exacting from the administratrix the observance of her
responsibilities. Please note that those were not the only actions taken by the
respondent Judge. Records of the case show that respondent Judge issued several
Orders resolving other motions.
Complainants fault respondent Judge for failing to order the administratrix to file a
completed and updated inventory even as late as the date of this Complaint.
In the [administratrix's] motion for extension of time, she stated that the Inventory
was complete except for the valuation of some shares of stock and to obtain the
same, full auditing of the entire corporation complete with the actual field
verification of recorded cases was needed. The same appears to be meritorious
considering the vast estate of the deceased.
When the administratrix did not submit the updated inventory after the deadline on
May 31, 2001, respondent Judge on October 16, 2003, directed the administratrix to
file the updated inventory. For which reason, administratrix filed another two (2)
motions for extension of time to file the same.
The delay in the submission of the inventory was aptly explained by the motions for
extension of time filed by the administratrix.
The above ruling went on to expound that the administrator's unexplained delay in
filing the inventory may be a ground for his removal. Hence, the judge may not be
faulted for the [administratrix's] delay. However, only the heirs or beneficiaries of
the estate may move for the removal of the administratrix on the grounds provided
for in Rule 82.
Likewise, the failure to render an account is a ground for the removal of the
administratrix by the proper parties.
The mandatory character of the requirement of an account or accounting one (1)
year from the time of receiving letters testamentary or of administration admits of
exception, i.e., when the Court, otherwise, directs.
In this case, the one-year mandatory period within which to render an accounting
should be reckoned from December 16, 2003. Hence, accounting of the estate is
not yet due.10
However, the Investigating Justice opined that the respondent Judge arbitrarily
denied the complainants access to the case records of Sp. Proc. No. 00-97505 by
refusing requests for photocopying of the same, and made the following conclusion
and recommendation:
This Investigator concludes that respondent Judge is not guilty of inaction or failure
to require observance of the Rules by the Administratrix.
However, respondent Judge's refusal to give the complainants access to the case
records of SP-97505 is arbitrary. The right to information on matters of public
concern is a constitutional right. Access to official records and to documents and
papers pertaining to official acts, transactions, or decisions shall be afforded the
citizen, subject to such limitations as may be provided by law.
WHEREFORE, PREMISES CONSIDERED, it is hereby recommended that respondent
Judge be adjudged guilty of dereliction of duty and improper conduct bordering on
oppression and accordingly be CENSURED, REPRIMANDED and WARNED that a
repetition of the same in the future will be dealt with more severely.11
The findings and recommendation of Justice Salazar-Fernando are well taken.
The Court holds that the respondent Judge erred in denying the complainants access
to the court records of Sp. Proc. No. 00-97505. Admittedly, the complainants could
not demand that they be furnished with the court's orders and the pleadings filed by
the parties, in as much as the respondent Judge had already ruled that they were
not parties-in-interest. However, the Court finds that the respondent Judge should
not have prohibited the complainants from going over the records of the case and
securing copies of pertinent orders and pleadings.12
Courts in the United States have recognized the general right to inspect and copy
public records and documents, including judicial records and documents.13 In our
jurisdiction, the right is enshrined in Section 7, Article III of the Constitution, which
provides:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The reliance of the respondent Judge on the ruling of the Court in Legaspi v. Civil
Service Commission,14 to justify the denial of access to court records is misplaced.
On the contrary, the following pronouncement in the said case further bolsters the
claim of the complainants:
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern," like public interest, is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen.
In the final analysis, it is for the courts to determine in a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the
public.15
The presumption that the public has a right to see and copy judicial records attaches
to those documents which properly come before the court in the course of an
adjudicatory proceeding and which are relevant to the adjudication.16 Hence,
relevant documents which are submitted to, and accepted by, a court of competent
jurisdiction in the course of adjudicatory proceedings, become documents to which
the presumption of public access applies.17 The policy reasons for granting public
access to criminal proceedings include the public's right to monitor the functioning
of our courts, thereby ensuring quality, honesty and respect for our legal system.
Such policy reasons apply to the grant of public access to civil cases as well.18
The importance of access to public records, court records more particularly, was
explained in Lantaco, Sr. v. Llamas,19 where the respondent Judge therein refused to
furnish the complainants a copy of his decision. According to the Court, the
importance of this right to access to court records is predicated on the right of the
people to acquire information on matters of public concern in which the public has a
legitimate interest. It was further explained that while the public officers in custody
of control of public records have the discretion to regulate the manner in which such
records may be inspected, examined or copied by interested persons, such
discretion does not carry with it the authority to prohibit such access, inspection,
examination or copying. To drive home the point, the Court cited its pronouncement
in Baldoza v. Dimaano,20 to wit:
The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases." However,
restrictions on access to certain records may be imposed by law. Thus, access
restrictions imposed to control civil insurrection have been permitted upon a
showing of immediate and impending danger that renders ordinary means of control
inadequate to maintain order.21
We agree with the following ratiocination of the Investigating Justice:
However, the constitutional guarantee to information on matters of public concern is
not absolute. Under the Constitution, access to official records, papers, etc., are
"subject to limitations as may be provided by law." Therefore, a law may exempt
certain types of information from public scrutiny such as matters on national
security. Otherwise stated, the availability of access to a particular public record
must be restricted by the nature of the information sought, i.e., (a) of public concern
or one that involves public interest, and (b) not being exempted by law from the
operation of the constitutional guarantee.
The privilege against disclosure is recognized with respect to state secrets bearing
on military, diplomatic and similar matters. This privilege is based upon public
interest of such paramount importance which transcends the individual interests of a
private citizen, even though, as a consequence thereof, the plaintiff cannot enforce
his legal rights.
SP No. 97505 does not contain any military or diplomatic secret which will be
disclosed by its production. Neither is there any law or regulation which considers
the case records as classified information.
The right to information is subject to reasonable regulations and restrictions.
However, while public officers in custody or control of public records have the
discretion to regulate the manner in which such records may be inspected,
examined or copied by interested persons, such discretion does not carry with it the
authority to prohibit such access, inspection, examination or copying.22
The Court thus rules that for denying the complainants access to court records, the
respondent Judge must be reprimanded.
The respondent Judge cannot be similarly chastised for ruling that the complainants
were not parties-in-interest in the subject case. It is settled that as a matter of
policy, the acts of a judge in his judicial capacity are not subject to disciplinary
action. He cannot be subjected to liability civil, criminal or administrative for any
of his official acts, no matter how erroneous, as long as he acts in good faith.23 Only
judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate
intent to do an injustice will be administratively sanctioned.24 To hold, otherwise,
would be to render judicial office untenable, for no one called upon to try the facts or
interpret the law in the process of administering justice can be infallible in his
judgment.25 Indeed, an administrative complaint against a judge cannot be pursued
simultaneously with the judicial remedies accorded to parties aggrieved by his
erroneous order or judgment. Administrative remedies are neither alternative nor
cumulative to judicial review where such review is available to the aggrieved parties
and the same has not yet been resolved with finality. For until there is a final
declaration by the appellate court that the challenged order or judgment is
manifestly erroneous, there will be no basis to conclude whether respondent judge is
administratively liable.26
Thus, the remedy of the aggrieved party is not to file an administrative complaint
against the judge, but to elevate the assailed decision or order to the higher court
for review and correction,27 which in this case the complainants have already done.
The Court notes that in a Decision dated February 27, 2004, the CA dismissed the
petition questioning the ruling of the respondent Judge that the complainants were
not parties-in-interest in Sp. Proc. 00-97505, and that the complainants elevated
such dismissal to this Court via a petition for review.
It must be stressed that an administrative complaint is not an appropriate remedy
where judicial recourse is still available, such as a motion for reconsideration, an
appeal, or a petition for certiorari, unless the assailed order or decision is tainted
with fraud, malice, or dishonesty.28 The Court has to be shown acts or conduct of
the judge clearly indicative of arbitrariness or prejudice before the latter can be
branded the stigma of being biased and partial. Good faith and absence of malice,
corrupt motives or improper considerations, are sufficient defenses in which a judge
charged with ignorance of the law can find refuge.29 In this case, no bad faith can
be attributed to the respondent Judge for relying on the ruling of this Court in
Lantaco v. Llamas,30 albeit erroneously.
WHEREFORE, for denying the complainants access to court records, respondent
Judge Amor A. Reyes is hereby REPRIMANDED. She is sternly warned that a
repetition of the same or similar act in the future shall be dealt with more severely.
SO ORDERED.