THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON.

JUDGE
RUBEN AYSON, Presiding over Branch 6, Regional Trial
Court, First Judicial Region, Baguio City, and FELIPE RAMOS,
respondents.

Nelson Lidua for private respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT

AGAINST SELF-INCRIMINATION; RIGHT CONSTRUED. The right against self-
incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is
accorded to every person who gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative proceeding.
The right is NOT to "be compelled to be a witness against himself." It
prescribes an "option of refusal to answer incriminating questions and not a
prohibition of inquiry." It simply secures to a witness, whether he be a party
or not, the right to refuse to answer any particular incriminatory question,
i.e., one the answer to which has a tendency to incriminate him for some
crime.
2. ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. The right can be claimed only
when the specific question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not give a witness the
right to disregard a subpoena, to decline to appear before the court at the
time appointed, or to refuse to testify altogether. The witness receiving a
subpoena must obey it, appear as required, take the stand, be sworn and
answer questions. It is only when a particular question is addressed to him,
the answer to which may incriminate him for some offense, that he may
refuse to answer on the strength of the constitutional guaranty.
3. ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against self-
incrimination is not self-executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not
come into play. It follows that the right may be waived, expressly, or
impliedly, as by a failure to claim it at the appropriate time.
4. ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. The accused in a criminal
case in court has other rights in the matter of giving testimony or refusing to
do so. An accused "occupies a different tier of protection from an ordinary
witness." Under the Rules of Court, in all criminal prosecutions the defendant
is entitled among others 1) to be exempt from being a witness against
himself, and 2) to testify as witness in his own behalf; but if he offers himself
as a witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or be
used against him.
5. ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST
HIMSELF, CONSTRUED. The right of the defendant in a criminal case "to be
exempt from being a witness against himself" signifies that he cannot be
compelled to testify or produce evidence in the criminal case in which he is
the accused, or one of the accused. He cannot be compelled to do so even by
subpoena or other process or order of the Court. He cannot be required to be
a witness either for the prosecution, or for a co-accused, or even for himself.
In other words unlike an ordinary witness (or a party in a civil action) who
may be compelled to testify by subpoena, having only the right to refuse to
answer a particular incriminatory question at the time it is put to him the
defendant in a criminal action can refuse to testify altogether. He can refuse
to take the witness stand, be sworn, answer any question. And, as the law
categorically states, "his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him."
6. ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS
FILED IN THE COURT. A person suspected of having committed a crime
and subsequently charged with its commission in court, has the following
rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE
THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary
investigation), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being interrogated by
the police: the continuing right to remain silent and to counsel, and to be
informed thereof, not to be subjected to force, violence, threat, intimidation
or any other means which vitiates the free will; and to have evidence
obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED
IN COURT a) to refuse to be a witness; b) not to have any prejudice
whatsoever result to him by such refusal; c) to testify to his own behalf,
subject to cross-examination by the persecution; d) WHILE TESTIFYING, to
refuse to answer a specific question which tends to incriminate him for some
time other than that for which he is prosecuted.
7. ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT
ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY;
CASE AT BAR. Felipe Ramos was not in any sense under custodial
interrogation, as the term should be properly understood, prior to and during
the administrative inquiry into the discovered irregularities in ticket sales in
which he appeared to have had a hand. The constitutional rights of a person
under custodial interrogation under Section 20, Article IV of the 1973
Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions
posed to him on the first day of the administrative investigation, February 9,
1986 and agreed that the proceedings should be recorded, the record having
thereafter been marked during the trial of the criminal action subsequently
filed against him as Exhibit A, just as it is obvious that the note (later marked
as Exhibit K) that he sent to his superiors on February 8, 1986, the day before
the investigation, offering to compromise his liability in the alleged
irregularities, was a free and even spontaneous act on his part. They may not
be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.

DECISION

NARVASA, J : p

What has given rise to the controversy at bar is the equation by the
respondent Judge of the right of an individual not to "be compelled to be a
witness against himself" accorded by Section 20, Article III of the Constitution,
with the right of any person "under investigation for the commission of an
offense . . . to remain silent and to counsel, and to be informed of such right,"
granted by the same provision. The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine
Airlines (PAL), assigned at its Baguio City station. It having allegedly come to
light that he was involved in irregularities in the sales of plane tickets, 1 the
PAL management notified him of an investigation to be conducted into the
matter of February 9, 1986. That investigation was scheduled in accordance
with PAL's Code of Conduct and Discipline, and the Collective Bargaining
Agreement signed by it with the Philippine Airlines Employees' Association
(PALEA) to which Ramos pertained. 2
On the day before the investigation, February 8, 1986, Ramos gave to his
superiors a handwritten note 3 reading as follows:
"2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING
TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN
THE AMT. OF P76,000 (APPROX.) SUBJECT TO CONDITIONS AS
MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos"

At the investigation of February 9, 1986, conducted by the PAL Branch

Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent
Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop
Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the
Audit Team." Thereafter, his answers in response to questions by Cruz, were
taken down in writing. Ramos' answers were to the effect inter alia that he
had not indeed made disclosure of the tickets mentioned in the Audit Team's
findings, that the proceeds had been "misused" by him, that although he had
planned on paying back the money, he had been prevented from doing so,
"perhaps (by) shame," that he was still willing to settle his obligation, and
proferred a "compromise . . . to pay on staggered basis, (and) the amount
would be known in the next investigation;" that he desired the next
investigation to be at the same place, "Baguio CTO," and that he should be
represented therein by "Shop stewardees ITR Nieves Blanco;" and that he
was willing to sign his statement (as he in fact afterwards did). 4 How the
investigation turned out is not dealt with the parties at all; but it would seem
that no compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos
charging him with the crime of estafa allegedly committed in Baguio City
during the period from March 12, 1986 to January 29, 1987. In that place and
during that time, according to the indictment, 5 he (Ramos)
". . . with unfaithfulness and/or abuse of confidence, did then and
there willfully . . . defraud the Philippine Airlines, Inc., Baguio
Branch, . . . in the following manner, to wit: said accused . . . having
been entrusted with and received in trust fare tickets of passengers
for one-way-trip and round-trip in the total amount of P76,700.65,
with the express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, . . . once in possession
thereof and instead of complying with his obligation, with intent to
defraud, did then and there . . . misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in spite
of repeated demands, . . . failed and refused to make good his
obligation, to the damage and prejudice of the offended party . . ."

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty,"

and trial thereafter ensued. The prosecution of the case was undertaken by
lawyers of PAL under the direction and supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written
offer of evidence dated June 21, 1988, 6 which included "the (above
mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986
at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well
as his "handwritten admission . . . given on February 8, 1986," also above
referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiffs
Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was
that "said document, which appears to be a confession, was taken without
the accused being represented by a lawyer." Exhibit K was objected to "for
the same reasons interposed under Exhibits 'A' and 'J.' "
By Order dated August 9, 1988, 8 the respondent judge admitted all the
exhibits "as part of the testimony of the witnesses who testified in
connection therewith and for whatever they are worth," except Exhibits A
and K, which it rejected. His Honor declared Exhibit A "inadmissible in
evidence, it appearing that it is the statement of accused Felipe Ramos taken
on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation
conducted by the Branch Manager . . . since it does not appear that the
accused was reminded of this constitutional rights to remain silent and to
have counsel, and that when he waived the same and gave his statement, it
was with the assistance actually of a counsel." He also declared inadmissible
"Exhibit K, the handwritten admission made by accused Felipe J. Ramos,
given on February 8, 1986 . . . for the same reason stated in the exclusion of
Exhibit 'A' since it does not appear that the accused was assisted by counsel
when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied,
by Order dated September 14, 1988. 10 In justification of said Order,
respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce
Enrile, et al., 121 SCRA 538, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142
SCRA 219, and Peo. v. Decierdo, 149 SCRA 496, among others, to the effect
that "in custodial investigations the right to counsel may be waived but the
waiver shall not be valid unless made with the assistance of counsel," and the
explicit precept in the present Constitution that the rights in custodial
investigation "cannot be waived except in writing and in the presence of
counsel." He pointed out that the investigation of Felipe Ramos at the PAL
Baguio Station was one "for the offense of allegedly misappropriating the
proceeds of the tickets issued to him' and therefore clearly fell "within the
coverage of the constitutional provisions;" and the fact that Ramos was not
detained at the time, or the investigation was administrative in character
could not operate to except the case "from the ambit of the constitutional
provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in
the petition for certiorari and prohibition at bar, filed in this Court by the
private prosecutors in the name of the People of the Philippines. By
Resolution dated October 26, 1988, the Court required Judge Ayson and
Felipe Ramos to comment on the petition, and directed issuance of a
"TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from
proceeding further with the trial and/or hearing of Criminal Case No. 3488-R
(People . . . vs. Felipe Ramos), including the issuance of any order, decision or
judgment in the aforesaid case or on any matter in relation to the same case,
now pending before the Regional Trial Court of Baguio City, Br. 6, First
Judicial Region." The Court also subsequently required the Solicitor General
to comment on the petition. The comments of Judge Ayson, Felipe Ramos,
and the Solicitor General have all been filed. The Solicitor General has made
common cause with the petitioner and prays "that the petition be given due
course and thereafter judgment be rendered setting aside respondent
Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the
prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the
name of the People of the Philippines by lawyers de parte of the offended
party in the criminal action in question.
The Court deems that there has been full ventilation of the issue of
whether or not it was grave abuse of discretion for respondent Judge to have
excluded the People's Exhibits A and K. It will now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973
Constitution, 11 to which respondent Judge has given a construction that is
disputed by the People. The section reads as follows:
SEC. 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any
other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be
inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights,
dealth with in the section, namely:
1) the right against self-incrimination i.e., the right of a person not to be
compelled to be a witness against himself set out in the first sentence,
which is a verbatim reproduction of Section 18, Article III of the 1935
Constitution, and is similar to that accorded by the Fifth Amendment of the
American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every
suspect "under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the
individuality and disparateness of these rights. It has placed the rights in
separate sections. The right against self-incrimination, "No person shall be
compelled to be a witness against himself," is now embodied in Section 17,
Article III of the 1987 Constitution. The rights of a person in custodial
interrogation, which have been made more explicit, are now contained in
Section 12 of the same Article III. 13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV
of the 1973 Constitution, is accorded to every person who gives evidence,
whether voluntarily or under compulsion of subpoena, in any civil, criminal, or
administrative proceeding. 14 The right is NOT to "be compelled to be a
witness against himself."
The precept set out in that first sentence has a settled meaning. 15 It
prescribes an "option of refusal to answer incriminating questions and not a
prohibition of inquiry." 16 It simply secures to a witness, whether he be a
party or not, the right to refuse to answer any particular incriminatory
question, i.e., one the answer to which has a tendency to incriminate him for
some crime. However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the witness. It cannot
be claimed at any other time. It does not give a witness the right to disregard
a subpoena, to decline to appear before the court at the time appointed, or to
refuse to testify altogether. The witness receiving a subpoena must obey it,
appear as required, take the stand, be sworn and answer questions. It is only
when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the
strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not
impose on the judge, or other officer presiding over a trial, hearing or
investigation, any affirmative obligation to advise a witness of his right
against self-incrimination. It is a right that a witness knows or should know, in
accordance with the well known axiom that every one is presumed to know
the law, that ignorance of the law excuses no one. Furthermore, in the very
nature of things, neither the judge nor the witness can be expected to know
in advance the character or effect of a question to be put to the latter. 17
The right against self-incrimination is not self-executing or automatically
operational. It must be claimed. If not claimed by or in behalf of the witness,
the protection does not come into play. It follows that the right may be
waived, expressly, or impliedly, as by a failure to claim it at the appropriate
time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or
better said, group of rights. These rights apply to persons "under
investigation for the commission of an offense," i.e., "suspects" under
investigation by police authorities; and this is what makes these rights
different from that embodied in the first sentence, that against self-
incrimination which, as aforestated, indiscriminately applies to any person
testifying in any proceeding, civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an
offense was not in the 1935 Constitution. It is avowedly derived from the
decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision
described as an "earthquake in the world of law enforcement." 20
Section 20 states that whenever any person is "under investigation for the
commission of an offense"
1) he shall have the right to remain silent and to counsel, and to be
informed of each right, 21
2) nor force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him; 22 and

3) any confession obtained in violation of . . . (these rights shall be

inadmissible in evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid

down for a person in police custody, "in-custody interrogation" being
regarded as the commencement of an adversary proceeding against the
suspect. 24
 He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise
those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him,
the individual may knowingly and intelligently waive these rights and
agree to answer or make a statement. But unless and until such
warnings and waivers are demonstrated by the prosecution at the
trial, no evidence obtained as a result of interrogation can be used
against him.

The objective is to prohibit "incommunicado interrogation of individuals in

a police-dominated atmosphere, resulting in self-incriminating statement
without full warnings of constitutional rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations,"
or "in-custody interrogation of accused persons." 26 And, as this Court has
already stated, by custodial interrogation is meant "questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by this Court.
28

. . . After a person is arrested and his custodial investigation

begins a confrontation arises which at best may be termed
unequal. The detainee is brought to an army camp or police
headquarters and there questioned and "cross-examined" not
only by one but as many investigators as may be necessary to
break down his morale. He finds himself in strange and
unfamiliar surroundings, and every person he meets he
considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and
means that experience and study have taught them to extract
the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their
constitutional rights. And even if they were, the intimidating and
coercive presence of the officers of the law in such an
 atmosphere overwhelms them into silence. Section 20 of the Bill
of Rights seeks to remedy this imbalance."
Not every statement made to the police by a person involved in some crime
is within the scope of the constitutional protection. If not made "under
custodial interrogation," or "under investigation for the commission of an
offense," the statement is not protected. Thus, in one case, 29 where a person
went to a police precinct and before any sort of investigation could be
initiated, declared that he was giving himself up for the killing of an old
woman because she was threatening to kill him by barang, or witchcraft, this
Court ruled that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being exigible under
the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1)
that against self-incrimination and (2) those during custodial interrogation
apply to persons under preliminary investigation or already charged in court for
a crime.
It seems quite evident that a defendant on trial or under preliminary
investigation is not under custodial interrogation. His interrogation by the
police, if any there had been would already have been ended at the time of
the filing of the criminal case in court (or the public prosecutors' office).
Hence, with respect to a defendant in a criminal case already pending in
court (or the public prosecutor's office), there is no occasion to speak of his
right while under "custodial interrogation" laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution, for
the obvious reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary
investigation before the public prosecutor), in common with all other
persons, possesses the right against self-incrimination set out in the first
sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to
refuse to answer a specific incriminatory question at the time that it is put to
him. 30
Additionally, the accused in a criminal case in court has other rights in the
matter of giving testimony or refusing to do so. An accused "occupies a
different tier of protection from an ordinary witness." Under the Rules of
Court, in all criminal prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself, 31 and
2) to testify as witness in his own behalf; but if he offers himself as a witness
he may be cross-examined as any other witness; however, his neglect or
refusal to be a witness shall not in any manner prejudice or be used against
him. 32
The right of the defendant in a criminal case "to be exempt from being a
witness against himself" signifies that he cannot be compelled to testify or
produce evidence in the criminal case in which he is the accused, or one of
the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either
for the prosecution, or for a co-accused, or even for himself. 33 In other
words unlike an ordinary witness (or a party in a civil action) who may be
compelled to testify by subpoena, having only the right to refuse to answer a
particular incriminatory question at the time it is put to him the defendant
in a criminal action can refuse to testify altogether. He can refuse to take the
witness stand, be sworn, answer any question. 34 And, as the law
categorically states, "his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This is
his right. But if he does testify, then he "may be cross-examined as any other
witness." He may be cross-examined as to any matters stated in his direct
examination, or connected therewith. 36 He may not on cross-examination
refuse to answer any question on the ground that the answer that he will
give, or the evidence he will produce, would have a tendency to incriminate
him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be
asked a question which might incriminate him, not for the crime with which
he is charged, but for some other crime, distinct from that of which he is
accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section
20, Article IV of the 1973 Constitution (now Section 17 of the 1987
Constitution). Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse to
answer any question on the ground that he might be implicated in that crime
of murder; but he may decline to answer any particular question which might
implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently
charged with its commission in court, has the following rights in that matter
of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or
otherwise deprived of his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free will; and to
have evidence obtained in violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such
refusal;
c) to testify to his own behalf, subject to cross-examination by the
prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which
tends to incriminate him for some time other than that for which he is
prosecuted.
It should by now be abundantly apparent that respondent Judge has
misapprehended the nature and import of the disparate rights set forth in
Section 20, Article IV of the 1973 Constitution. He has taken them as applying
to the same juridical situation, equating one with the other. In so doing, he
has grossly erred. To be sure, His Honor sought to substantiate his thesis by
arguments he took to be cogent and logical. The thesis was however so far
divorced from the actual and correct state of the constitutional and legal
principles involved as to make application of said thesis to the case before
him tantamount to totally unfounded, whimsical or capricious exercise of
power. His Orders were thus rendered with grave abuse of discretion. They
should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in
any sense under custodial interrogation, as the term should be properly
understood, prior to and during the administrative inquiry into the
discovered irregularities in ticket sales in which he appeared to have had a
hand. The constitutional rights of a person under custodial interrogation
under Section 20, Article IV of the 1973 Constitution did not therefore come
into play, were of no relevance to the inquiry. It is also clear, too, that Ramos
had voluntarily answered questions posed to him on the first day of the
administrative investigation, February 9, 1986 and agreed that the
proceedings should be recorded, the record having thereafter been marked
during the trial of the criminal action subsequently filed against him as
Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he
sent to his superiors on February 8, 1986, the day before the investigation,
offering to compromise his liability in the alleged irregularities, was a free
and even spontaneous act on his part. They may not be excluded on the
ground that the so-called "Miranda rights" had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger . . (of) the
violation of the right of any person against self-incrimination when the
investigation is conducted by the complaining parties, complaining
companies, or complaining employers because being interested parties,
unlike the police agencies who have no propriety or pecuniary interest to
protect, they may in their overeagerness or zealousness bear heavily on their
hapless suspects, whether employees or not, to give statements under an
atmosphere of moral coercion, undue ascendancy, and undue influence." It
suffices to draw attention to the specific and peremptory requirement of the
law that disciplinary sanctions may not be imposed on any employee by his
employer until and unless the employee has been accorded due process, by
which is meant that the latter must be informed of the offenses ascribed to
him and afforded adequate time and opportunity to explain his side. The
requirement entails the making of statements, oral or written, by the
employee under such administrative investigation in his defense, with
opportunity to solicit the assistance of counsel, or his colleagues and friends.
The employee may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in his defense
to the accusation against him, it would be absurd to reject his statements,
whether at the administrative investigation, or at a subsequent criminal
action brought against him, because he had not been accorded, prior to his
making and presenting them, his "Miranda rights" (to silence and to counsel
and to be informed thereof, etc.) which, to repeat, are relevant only in
custodial investigations. Indeed, it is self-evident that the employee's
statements, whether called "position paper," "answer," etc., are submitted by
him precisely so that they may be admitted and duly considered by the
investigating officer or committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain instances the
judge's expressed apprehensions may be realized, that violence or
intimidation, undue pressure or influence be brought to bear on an
employee under investigation or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an
event, any admission or confession wrung from the person under
interrogation would be inadmissible in evidence, on proof of the vice or
defect vitiating consent, not because of a violation of Section 20, Article IV of
the 1973 Constitution, but simply on the general, incontestable proposition
that involuntary or coerced statements may not in justice be received against
the makers thereof, and really should not be accorded any evidentiary value
at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the
Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9,
1988 and September 14, 1988, and he is hereby ordered to admit in evidence
Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and
thereafter proceed with the trial and adjudgment thereof. The temporary
restraining order of October 26, 1988 having become functus oficio, is now
declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
||| (People v. Ayson, G.R. No. 85215, [July 7, 1989], 256 PHIL 671-690)
[G.R. No. 135562. November 22, 1999.]
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENITO
BRAVO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

On May 25, 1994 an Information for rape with homicide was filed against
herein appellant. On September 26, 1994 the appellant was arraigned and
pleaded not guilty to the crime charged. After trial on the merits the court a
quo rendered judgment finding the appellant guilty beyond reasonable
doubt of the crime charged and sentenced him to suffer the penalty of
death. The trial court likewise ordered the appellant to pay the heirs of the
victim the amount of P100,000.00 as indemnity and P300,000.00 as
exemplary damages. In view of the penalty imposed, the case was forwarded
to the Supreme Court for automatic review.
The Supreme Court reversed the judgment of the lower court. The accused
was under arrest for the rape and killing of Juanita Antolin and any statement
allegedly made by him pertaining to his possible complicitly in the crime
without prior notification of his constitutional rights is inadmissible in
evidence. The policemen's attempt to circumvent the rule by insisting that
the admission was made during an informal talk prior to the custodial
investigation proper is not tenable. The appellant was not invited to the
police station as part of a general inquiry for any possible lead to the
perpetrators of the crime under investigation. At the time the alleged
admission was made, the appellant was in custody and had been arrested as
the prime suspect in the rape and killing of Juanita Antolin. The exclusionary
rule presumes that the alleged admission was coerced, the very evil the rule
stands to avoid. Supportive of such presumption is the absence of a written
extra-judicial confession to the effect and the appellant's denial in court of
the alleged oral admission. The alleged admission should be struck down as
inadmissible. Moreover, the trial court erred in rendering judgment
convicting the appellant based on a single circumstance. The rule is clear that
there must be at least two proven circumstances which in complete
sequence leads to no other logical conclusion than that of the guilt of the
accused. The two witnesses for the prosecution testified to a single
circumstance, that is, the victim was seen in the company of the appellant.
This circumstance alone cannot be the basis of the judgment of conviction.
Accordingly, the appealed decision was reversed. Appellant was acquitted of
the crime charged.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED;

EXCLUSIONARY RULE; EXPLAINED. Section 12 of Article III of the 1987
Constitution embodies the mandatory protection afforded a person under
investigation for the commission of a crime and the correlative duty of the
State and its agencies to enforce such mandate. The mantle of protection
under this constitutional provision covers the period from the time a person
is taken into custody for investigation of his possible participation in the
commission of a crime or from the time he is singled out as a suspect in the
commission of a crime although not yet in custody. The exclusionary rule
sprang from a recognition that police interrogatory procedures lay fertile
grounds for coercion, physical and psychological, of the suspect to admit
responsibility for the crime under investigation. It was not intended as a
deterrent to the accused from confessing guilt, if he voluntarily and
intelligently so desires but to protect the accused from admitting what he is
coerced to admit although untrue. Law enforcement agencies are required to
effectively communicate the rights of a person under investigation and to
insure that it is fully understood. Any measure short of this requirement is
considered a denial of such right. Courts are not allowed to distinguish
between preliminary questioning and custodial investigation proper when
applying the exclusionary rule. Any information or admission given by a
person while in custody which may appear harmless or innocuous at the
time without the competent assistance of an independent counsel should be
struck down as inadmissible. It has been held, however, that an admission
made to news reporters or to a confidant of the accused is not covered by
the exclusionary rule.
2. ID.; ID.; ID.; ID.; ADMISSION MADE DURING AN INFORMAL TALK
INADMISSIBLE AS EVIDENCE. The accused was under arrest for the rape
and killing of Juanita Antolin and any statement allegedly made by him
pertaining to his possible complicity in the crime without prior notification of
his constitutional rights is inadmissible in evidence. The policeman's
apparent attempt to circumvent the rule by insisting that the admission was
made during an "informal talk" prior to custodial investigation proper is not
tenable. The appellant was not invited to the police station as part of a
general inquiry for any possible lead to the perpetrators of the crime under
investigation. At the time the alleged admission was made the appellant was
in custody and had been arrested as the prime suspect in the rape and killing
of Juanita Antolin. The exclusionary rule presumes that the alleged admission
was coerced, the very evil the rule stands to avoid. Supportive of such
presumption is the absence of a written extra-judicial confession to that
effect and the appellant's denial in court of the alleged oral admission. The
alleged admission should be struck down as inadmissible.
3. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; NOT
SUFFICIENTLY ESTABLISHED IN CASE AT BAR. We also agree with both the
appellant and the appellee that the trial court erred in rendering judgment
convicting the appellant based on a single circumstance. Only one
circumstantial evidence was proven i.e., that the victim went with the accused
to buy soda and balut on the evening of January 12, 1994. Section 4 Rule 133
of the Rules of Court states: Section 4. Circumstantial evidence, when
sufficient. Circumstantial evidence is sufficient for conviction if: a) There is
more than one circumstance; b) The facts from which the inferences are
derived are proven; and c) The combination of all the circumstances is such
as to produce a conviction beyond reasonable doubt. In the case of People vs.
Adorfina this court held that: ". . . a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven
constitute an unbroken chain which leads to one fair and reasonable
conclusion which points to the accused, to the exclusion of all others, as the
guilty person, that is, the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with any other hypothesis except that of guilty." The
rule is clear that there must be at least two proven circumstances which in
complete sequence leads to no other logical conclusion than that of the guilt
of the accused. The two witnesses for the prosecution testified to a single
circumstance, namely, that the victim was seen in the company of the
appellant on the night of January 12, 1994. This circumstance alone cannot
be the basis of a judgment of conviction. There is no other proven
circumstance linking the appellant to the crime as the perpetrator thereof to
the exclusion of any other possible culprit e.g. that the appellant was at or
near the scene of the crime at the time it was probably committed or any
other evidence to establish the appellant's participation in the commission
thereof.

DECISION

GONZAGA-REYES, J : p

On January 15, 1994 the decomposing body of a child was found in a vacant
lot along the road leading to Patul, Rosario Santiago City. 1 Her body was
found between two concrete fences half naked, shirtless and skirt pulled up,
her panty stuffed in her mouth. 2 The body was identified to be that of a nine
year old girl named Juanita Antolin, a resident of Rosario, Santiago City and
known in her neighborhood as Len-len. Her body was found about 700
meters from her house putrid and in rigor mortis. 3 The scalp on the left side
of her head was detached exposing a fracture on the left temporal lobe of
her skull. Vaginal examination showed fresh laceration at 2:30 o'clock and
old lacerations at 5:00 and 7:00 o'clock and easily accepts two fingers. The
cause of death was cerebral hemorrhage. 4
On May 25, 1994 an Information for rape with homicide 5 was filed against
herein accused-appellant which states: cdphil

"That on or about the 12th day of January 1994, in the municipality of

Santiago, province of Isabela, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, did then and there,
willfully, unlawfully and feloniously, with lewd design and by means
of violence and intimidation, have carnal knowledge with one Juanita
Antolin y Jandoc, a nine year old girl, against her will and consent;
that on the occasion and by reason of the said rape, the said
accused, did then and there, willfully, unlawfully and feloniously,
 assault, attack and hit with a blunt instrument the said Juanita
Antolin y Jandoc, inflicting upon her, a fracture on the skull, which
directly caused her death.
CONTRARY TO LAW."

On September 26, 1994 the accused was arraigned and pleaded not guilty to
the crime charged. 6
Evelyn San Mateo an eight year old second grader from Rosario, Santiago
City neighbor and cousin of the victim testified that she was with the
deceased the night before she disappeared. She stated that while they stood
on the roadside watching "Home Along Da Riles" from an open window of a
neighbor's house the appellant approached them and asked Len-Len to
come with him to a birthday party and then he will buy her Coke and balut.
Len-Len asked her to go with them but she did not want to because she was
watching television. Len-Len went alone with the accused. The following
morning Len-Len's mother told Evelyn and her mother that Len-Len was
missing. In court, Evelyn positively identified the appellant as the person last
seen with Len-len before she was found dead. 7

The owner of the house where Len-len and Evelyn watched television, Gracia
Monahan, corroborated Evelyn's testimony that on the evening of January 12,
1994 she saw the appellant talking to Len-len while the two girls were
watching television from her open window and that when she looked again
towards the end of the program to the direction where the girls were
situated, only Evelyn was left watching television. Monahan testified that she
is familiar with the appellant and the two children because they are
neighbors. 8
The Chief of the Intelligence Section of the Santiago Police Department,
Alexander Mico, testified that on January 15, 1994 his office received a report
that a dead body was found in a vacant lot. The body was later identified as
Juanita Antolin. Mico stated that he interviewed San Mateo who pointed to
the appellant as the man last seen with the deceased. Mico found the
appellant at his place of work at the Spring Garden Resort at Sinsayon,
Santiago City. Upon seeing Bravo, Mico informed him that he is a suspect in
the killing of a girl in Rosario, Santiago City and asked him to come with him
for questioning. The appellant agreed. Mico further narrated in court that at
the police station the appellant admitted he was with the girl and he carried
her on his shoulder but he was so drunk that night that he does not
remember what he did to her. 9 On cross-examination Mico admitted that he
did not inform the appellant of his constitutional rights to remain silent, to
counsel and of his right against self-incrimination before the appellant made
the said admission because according to Mico he was only informally
interviewing the accused when he made the admission and that custodial
interrogation proper was conducted by the assigned investigator. 10
The appellant Benito Bravo testified in court that on his way home after work
at around five o'clock in the afternoon of January 12, 1994 he was invited to
go on a drinking spree at Purok 1, Rosario, Santiago City where he and four
other men consumed five round bottles of gin until 7:30 that evening. He
then headed for home. Appellant admitted in court that he passed by the
house of Gracia Monahan but stated that he did not see the two girls
watching television along the road. At home, he found his mother very sick
and so he decided to stay home all night. He woke up the following morning
at around 4:30 a.m. and prepared to go to work. On January 15, 1994 a
policeman came to his place of work and apprehended him without a
warrant of arrest and at the police station he was forced to admit
commission of the crime of rape with homicide of Juanita Antolin. The
appellant denied the accusation and stated that the deceased was his
godchild and that he has known Fely Handoc, the mother of the child, for
three years prior to this proceedings. 11
Juanito Bravo, the brother of the appellant testified that the appellant stayed
home on the night of January 12, 1994 to take care of their sick mother who
died a few days thereafter. 12
Ernesto Pastor, the foreman at the Spring Garden Resort where the appellant
was employed, testified that he has known the appellant for a long time and
that he knows him to be hardworking and of good moral character. Pastor
corroborated the appellant's testimony that police investigator Mico came to
the Spring Garden Resort and arrested Bravo without a warrant. 13
The testimony of the Municipal Health Officer who conducted the autopsy
was dispensed with by the prosecution as the handwritten Autopsy Report
made by the Municipal Health Officer of Santiago, Isabela, marked as Exhibit
B, was admitted by both parties. 14 The Report reads: LLphil

AUTOPSY REPORT
ABEL MEMORIAL HOMES
PUROK 2, ROSARIO,
SANTIAGO, ISABELA
JANUARY 15, 1994
2:30 P.M.
JUANITA ANTOLIN
PUROK 1, BARANGAY ROSARIO
AGE: 9
FATHER: ANTONIO
MOTHER: OFELIA JANDOC
Was investigated under the mango tree where the crime was
committed and left side of the face is covered by sand (done by anay)
with rigor mortis and with putrification, easy pulling of the skin and
plenty of small worms coming out from the ears, nose, eyes and
mouth (without panty), the whole body is edematous.
After complete washing, coming out of small worms on both eyes
and ears and mouth, scalp on the left side was detached and skull
exposed.
Fracture of the skull with left temporal
Edematous
Abdomen, extremities has no pertinent findings except easy
pulling of skin and all are edematous
Vaginal examination shows fresh laceration at 2:30 o'clock, old
lacerations at 5:00 and 7:00 o'clock-could easily accept two fingers.
Cause of death cerebral hemorrhage (fracture of skull temporal
region, left). 15
On August 25, 1998 the trial court rendered judgment finding the accused
guilty of the crime charged as follows:prcd

Wherefore, finding the accused BENITO BRAVO "GUILTY" beyond

reasonable doubt of the crime of RAPE WITH HOMICIDE punishable
under Art. 335 of the Revised Penal Code, as amended by Republic
Act 7659, the court sentences him the penalty of DEATH and ordering
him to pay the heirs of Juanita Antolin y Jandoc the amount of one
hundred thousand pesos (P100,000.00) as indemnity and three
hundred thousand pesos (P300,000.00) as exemplary damages.
SO ORDERED. 16

and held that abuse of confidence and treachery attended the

commission of the crime.
This case is before us on automatic review in view of the penalty imposed by
the trial court.
Both counsels for the accused-appellant and the appellee plead for the
acquittal of the accused. Both the accused-appellant and the appellee invoke
the constitutionally guarded presumption of innocence in favor of the
accused and the latter's right to remain silent and to counsel. The testimony
of the policeman that the accused admitted he was with the victim on the
evening of January 12, 1994 but the latter was too drunk to remember what
happened should have been held inadmissible by the trial court in view of
the policeman's own admission in court that although he informed the
accused that he is a suspect in the rape and killing of one Juanita Antolin he
did not inform the accused of his constitutional rights before he asked him of
his participation in the crime under investigation. Both the appellant and the
appellee are in agreement that the trial court grievously erred in finding the
accused guilty beyond reasonable doubt based on the sole circumstantial
evidence that the victim was last seen by her cousin in the company of the
accused whereas the Rules of Court clearly requires the presence of at least
two proven circumstances the combination of which creates an unbroken
link between the commission of the crime charged and the guilt of the
accused beyond reasonable doubt. The single circumstance proven by the
prosecution that the victim was last seen conversing with the accused two
days before she was found dead cannot serve as basis for any conclusion
leading to the guilt of the accused of the crime charged. The evidence for the
prosecution falls short of the quantum of evidence required by the Rules to
establish guilt of the accused beyond reasonable doubt. In sum, both the
appellant and the appellee profess that the presumption of innocence of the
accused was not successfully overturned by the prosecution.
We resolve to acquit Benito Bravo.
Section 12 of Article III of the 1987 Constitution embodies the mandatory
protection afforded a person under investigation for the commission of a
crime and the correlative duty of the State and its agencies to enforce such
mandate. It states:
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel. prLL

(1) No torture, force, violence, threat, intimidation or any other

means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.
(2) Any confession or admission obtained in violation of this or
section 17 hereof shall be inadmissible in evidence
against him.
(3) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices,
and their families.

The mantle of protection under this constitutional provision covers the

period from the time a person is taken into custody for investigation of his
possible participation in the commission of a crime or from the time he is
singled out as a suspect in the commission of a crime although not yet in
custody. 17 The exclusionary rule sprang from a recognition that police
interrogatory procedures lay fertile grounds for coercion, physical and
psychological, of the suspect to admit responsibility for the crime under
investigation. It was not intended as a deterrent to the accused from
confessing guilt, if he voluntarily and intelligently so desires but to protect
the accused from admitting what he is coerced to admit although untrue. 18
Law enforcement agencies are required to effectively communicate the
rights of a person under investigation and to insure that it is fully
understood. Any measure short of this requirement is considered a denial of
such right. 19 Courts are not allowed to distinguish between preliminary
questioning and custodial investigation proper when applying the
exclusionary rule. Any information or admission given by a person while in
custody which may appear harmless or innocuous at the time without the
competent assistance of an independent counsel should be struck down as
inadmissible. 20 It has been held, however, that an admission made to news
reporters or to a confidant of the accused is not covered by the exclusionary
rule. 21

The admission allegedly made by the appellant is not in the form of a written
extra-judicial confession; the admission was allegedly made to the arresting
officer during an "informal talk" at the police station after his arrest as a
prime suspect in the rape and killing of Juanita Antolin. The arresting
policeman testified that the appellant admitted that he was with the victim
on the evening of January 12, 1994, the probable time of the commission of
the crime and that he carried her on his shoulder but that he was too drunk
to remember what subsequently happened. The arresting policeman
admitted that he did not inform the appellant of his constitutional rights to
remain silent and to counsel. We note that the alleged admission is
incriminating because it places the accused in the company of the victim at
the time the crime was probably committed.
The exclusionary rule applies.
The accused was under arrest for the rape and killing of Juanita Antolin and
any statement allegedly made by him pertaining to his possible complicity in
the crime without prior notification of his constitutional rights is inadmissible
in evidence. The policeman's apparent attempt to circumvent the rule by
insisting that the admission was made during an "informal talk" prior to
custodial investigation proper is not tenable. The appellant was not invited to
the police station as part of a general inquiry for any possible lead to the
perpetrators of the crime under investigation. At the time the alleged
admission was made the appellant was in custody and had been arrested as
the prime suspect in the rape and killing of Juanita Antolin. The exclusionary
rule presumes that the alleged admission was coerced, the very evil the rule
stands to avoid. Supportive of such presumption is the absence of a written
extra-judicial confession to that effect and the appellant's denial in court of
the alleged oral admission. The alleged admission should be struck down as
inadmissible.
We also agree with both the appellant and the appellee that the trial court
erred in rendering judgment convicting the appellant based on a single
circumstance. Only one circumstantial evidence was proven i.e., that the
victim went with the accused to buy soda and balut on the evening of January
12, 1994. Section 4 Rule 133 of the Rules of Court states:
Section 4. Circumstantial evidence, when sufficient. Circumstantial
evidence is sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven;
and
c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.

In the case of People vs. Adorfina 22 this court held that:

". . . a judgment of conviction based on circumstantial evidence can
be upheld only if the circumstances proven constitute an unbroken
chain which leads to one fair and reasonable conclusion which points
to the accused, to the exclusion of all others, as the guilty person,
that is, the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with any other hypothesis except that
of guilty."
cdrep

The rule is clear that there must be at least two proven circumstances which
in complete sequence leads to no other logical conclusion than that of the
guilt of the accused. The two witnesses for the prosecution testified to a
single circumstance, namely, that the victim was seen in the company of the
appellant on the night of January 12, 1994. This circumstance alone cannot
be the basis of a judgment of conviction. There is no other proven
circumstance linking the appellant to the crime as the perpetrator thereof to
the exclusion of any other possible culprit e.g. that the appellant was at or
near the scene of the crime at the time it was probably committed or any
other evidence to establish the appellant's participation in the commission
thereof. The prosecution's theory that the appellant is guilty of the crime
charged because he was seen with the victim a few days before she was
found dead is not tenable. The approximate time the crime was committed
was not established at all because the physician who made the autopsy
report was discharged as a witness when both parties admitted the report.
The two day interval between the evening of January 12th when the victim
was seen with the appellant and the day when her dead body was found on
January 15th presents a wide range of possibilities as to the perpetrator of
the crime. The Rules and jurisprudence demand no less than an unbroken
chain of proven facts pointing to the appellant as the guilty person to the
exclusion of all others. This the evidence for the prosecution failed to do.
Both counsels for the appellant and the appellee are correct in their
submission that the single circumstance that the victim was seen with the
appellant two days before she was found dead is clearly insufficient to
overcome the presumption of innocence in favor of the accused.
The rape and killing of nine year old Juanita Antolin is supported by concrete
evidence undisputed by both parties. The unpardonable assault on the child
is tragic and the trial court may have been swayed by the tide of human
indignation. We must however uphold the primacy of the presumption of
innocence in favor of the accused when the evidence at hand falls short of
the quantum required to support conviction.
Wherefore, the judgment appealed from is hereby reversed. The appellant
Benito Bravo is acquitted of the crime charged herein. The Director of the
Bureau of Corrections is ordered to immediately release him from custody
unless he is detained for another legal cause. LLphil

SO ORDERED.
||| (People v. Bravo, G.R. No. 135562, [November 22, 1999], 376 PHIL 931-944)
[G.R. No. 203335. February 18, 2014.]
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P.
MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR.,
petitioners, vs. THE SECRETARY OF JUSTICE, THE SECRETARY
OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, respondents.

[G.R. No. 203299. February 18, 2014.]

LOUIS "BAROK" C. BIRAOGO, petitioner, vs. NATIONAL

BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, respondents.

[G.R. No. 203306. February 18, 2014.]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG

MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY
CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR.,
DERVIN CASTRO, ET AL., petitioners, vs. OFFICE OF THE
PRESIDENT, represented by President Benigno Simeon
Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, respondents.

[G.R. No. 203359. February 18, 2014.]

SENATOR TEOFISTO DL GUINGONA III, petitioner, vs.

EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, respondents.
 [G.R. No. 203378. February 18, 2014.]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA

ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, petitioners, vs. THE
EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE
NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF
SCIENCE AND TECHNOLOGY, respondents.

[G.R. No. 203391. February 18, 2014.]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,

VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., petitioners, vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, respondents.

[G.R. No. 203407. February 18, 2014.]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL

RENATO M. REYES, JR., National Artist BIENVENIDO L.
LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo
Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG,
petitioners, vs. BENIGNO SIMEON C. AQUINO III, President of
the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE ENRILE,
HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director of
the National Bureau of Investigation, D/GEN. NICANOR A.
BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the
Interior and Local Government, respondents.

[G.R. No. 203440. February 18, 2014.]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,

AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V.
SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo
Human Rights Center), petitioners, vs. HONORABLE PAQUITO
OCHOA in his capacity as Executive Secretary, HONORABLE
LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of
the Department of Interior and Local Government, The
CHIEF of the Philippine National Police, The DIRECTOR of
the National Bureau of Investigation (all of the Executive
Department of Government), respondents.

[G.R. No. 203453. February 18, 2014.]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES

(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH
ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS
IN THE e-PETITION http://www.nujp.org/no-to-ra10175/,
petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE
NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND
ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO. 10175, respondents.

[G.R. No. 203454. February 18, 2014.]

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, petitioners,

vs. THE HON. SECRETARY OF JUSTICE, THE HON. SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT, respondents.

[G.R. No. 203469. February 18, 2014.]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN

NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A.
RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA;
MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR.; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON, petitioners, vs. HIS
EXCELLENCY BENIGNO S. AQUINO III, in his capacity as
President of the Republic of the Philippines; SENATE OF THE
PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS NAPOLEON
C. CASAMBRE, in his capacity as Executive Director,
Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National
Police, respondents.

[G.R. No. 203501. February 18, 2014.]

PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. HIS

EXCELLENCY BENIGNO S. AQUINO III, in his official capacity
as President of the Republic of the Philippines; HON.
PAQUITO N. OCHOA, JR., in his official capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and
Communications Technology Office; NONNATUS CAESAR R.
ROJAS, in his official capacity as Director of the National
Bureau of Investigation; and DIRECTOR GENERAL NICANOR
A. BARTOLOME, in his official capacity as Chief of the
Philippine National Police, respondents.

[G.R. No. 203509. February 18, 2014.]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES,

petitioner, vs. THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., respondent.

[G.R. No. 203515. February 18, 2014.]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, petitioner, vs. OFFICE
OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF
BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175,
respondents.

[G.R. No. 203518. February 18, 2014.]

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of

DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
represented by Leni Velasco, PARTIDO LAKAS NG MASA,
represented by Cesar S. Melencio, FRANCIS EUSTON R.
ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA
MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M.
MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
KENNETH KENG, ANA ALEXANDRA C. CASTRO, petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE
DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, respondents.
 DECISION

ABAD, J :
p

These consolidated petitions seek to declare several provisions of Republic

Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and
void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that
he needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for
the general public or for special audiences like associates, classmates, or
friends and read postings from them; SEcTHA

3. Advertise and promote goods or services and make purchases and

payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet.
The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him
that people can read.
And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or
highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty and the
right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act. SHCaEA

But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law
until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for
their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
a. Section 4 (a) (1) on Illegal Access;
b. Section 4 (a) (3) on Data Interference;
 c. Section 4 (a) (6) on Cyber-squatting;
d. Section 4 (b) (3) on Identity Theft; IASCTD

e. Section 4 (c) (1) on Cybersex;

f. Section 4 (c) (2) on Child Pornography;
g. Section 4 (c) (3) on Unsolicited Commercial Communications;
h. Section 4 (c) (4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal
Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer
Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer
Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating
Center (CICC); and
u. Section 26 (a) on CICC's Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
 Section 4 (a) (1)
Section 4 (a) (1) provides: ICTcDA

Section 4. Cybercrime Offenses. The following acts constitute the

offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4 (a) (1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct, 1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest. 2
Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal
protection. 3 CAIaDT

In the cases before it, the Court finds nothing in Section 4 (a) (1) that calls for
the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally
condemned conduct. 4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system's security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records. 5
Besides, a client's engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free card." 6
Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4 (a) (1).
Section 4 (a) (3) of the Cybercrime Law
Section 4 (a) (3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxx xxx xxx
(3) Data Interference. The intentional or reckless alteration,
damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without
right, including the introduction or transmission of viruses.
DASCIc

Petitioners claim that Section 4 (a) (3) suffers from overbreadth in that, while
it seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms. 7 But Section 4 (a) (3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of vandalism, 8
the act of willfully destroying without right the things that belong to others, in
this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people's computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect 9 or the fear of possible prosecution that hangs
on the heads of citizens who are minded to step beyond the boundaries of
what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct. 10 Here, the chilling
effect that results in paralysis is an illusion since Section 4 (a) (3) clearly
describes the evil that it seeks to punish and creates no tendency to
intimidate the free exercise of one's constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4 (a) (3) be valid. 11
Petitioner has failed to discharge this burden.
Section 4 (a) (6) of the Cybercrime Law
Section 4 (a) (6) provides: CHTcSE

Section 4. Cybercrime Offenses. The following acts constitute the

offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxx xxx xxx
(6) Cyber-squatting. The acquisition of domain name over
the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if
such a domain name is:
(i) Similar, identical, or confusingly similar to an
existing trademark registered with the
appropriate government agency at the time of
the domain name registration;
(ii) Identical or in any way similar with the name
of a person other than the registrant, in case of
a personal name; and CEcaTH

(iii) Acquired without right or with intellectual

property interests in it.
Petitioners claim that Section 4 (a) (6) or cyber-squatting violates the equal
protection clause 12 in that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his pseudo-name
and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the
two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-
motivated of the rightful opportunity of registering the same. The challenge
to the constitutionality of Section 4 (a) (6) on ground of denial of equal
protection is baseless.
Section 4 (b) (3) of the Cybercrime Law
Section 4 (b) (3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
b) Computer-related Offenses: CTSDAI

xxx xxx xxx

(3) Computer-related Identity Theft. The intentional
acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be
one (1) degree lower.
Petitioners claim that Section 4 (b) (3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom
of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures. 13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the relevance
of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless excused
by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to
the Universal Declaration of Human Rights which mandates that, "no
one shall be subjected to arbitrary interference with his privacy" and
"everyone has the right to the protection of the law against such
interference or attacks."AaECSH

Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches 16 and seizures, which is the basis of the right
to be let alone, and (b) the right to privacy of communication and
correspondence. 17
In assessing the challenge that the State has impermissibly intruded into
these zones of privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data. 19 The
law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how
government effort to curb computer-related identity theft violates the right
to privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to
acquire another's personal data.
Further, petitioners fear that Section 4 (b) (3) violates the freedom of the
press in that journalists would be hindered from accessing the unrestricted
user account of a person in the news to secure information about him that
could be published. But this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of identity information must
be intended for an illegitimate purpose. Moreover, acquiring and
disseminating information made public by the user himself cannot be
regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the part of the perpetrator.
20 As such, the press, whether in quest of news reporting or social
investigation, has nothing to fear since a special circumstance is present to
negate intent to gain which is required by this Section.
Section 4 (c) (1) of the Cybercrime Law
Section 4 (c) (1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control,
or operation, directly or indirectly, of any lascivious exhibition
 of sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.EHTISC

Petitioners claim that the above violates the freedom of expression clause of
the Constitution. 21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn conspicuously." 22
This meaning given to the term "favor" embraces socially tolerated trysts.
The law as written would invite law enforcement agencies into the bedrooms
of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section
of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing . . .
between and among two private persons . . . although that may be a form of
obscenity to some." 23 The understanding of those who drew up the
cybercrime law is that the element of "engaging in a business" is necessary to
constitute the illegal cybersex. 24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam. 25
The subject of Section 4 (c) (1) lascivious exhibition of sexual organs or
sexual activity is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography." 26 The law defines prostitution as
any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for money,
profit, or any other consideration. 27
The case of Nogales v. People 28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography. 29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging
in sexual acts privately through Internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity. 30 The Court will not declare Section 4 (c)
(1) unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as Congress has intended.
Section 4 (c) (2) of the Cybercrime Law
Section 4 (c) (2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
cTCaEA

xxx xxx xxx

(c) Content-related Offenses:
xxx xxx xxx
(2) Child Pornography. The unlawful or prohibited acts
defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that
provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 2009 31 (ACPA) to cover identical activities in cyberspace.
In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer
system. Actually, ACPA's definition of child pornography already embraces
the use of "electronic, mechanical, digital, optical, magnetic or any other
means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty. 32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
incalculable. AacCHD

Petitioners point out that the provision of ACPA that makes it unlawful for
any person to "produce, direct, manufacture or create any form of child
pornography" 33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary that
a person who merely doodles on paper and imagines a sexual abuse of a 16-
year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces
off his ideas on Twitter, anyone who replies to the tweet could be considered
aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it
will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4 (c) (2) is not successfully challenged.
Section 4 (c) (3) of the Cybercrime Law
Section 4 (c) (3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses:
xxx xxx xxx
(3) Unsolicited Commercial Communications. The transmission of
commercial electronic communication with the use of computer
system which seeks to advertise, sell, or offer for sale products and
services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or CaASIc

(ii) The primary intent of the communication is for service

and/or administrative announcements from the sender to its
existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains
a simple, valid, and reliable way for the recipient to
 reject receipt of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic communication does not
purposely disguise the source of the electronic
message; and
(cc) The commercial electronic communication does not
purposely include misleading information in any part of
the message in order to induce the recipients to read
the message.

The above penalizes the transmission of unsolicited commercial

communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a "spam." The term
referred to a Monty Python's Flying Circus scene in which actors would keep
saying "Spam, Spam, Spam, and Spam" when reading options from a menu.
35 SEACTH

The Government, represented by the Solicitor General, points out that

unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner's
peaceful enjoyment of his property. Transmitting spams amounts to trespass
to one's privacy since the person sending out spams enters the recipient's
domain without prior permission. The OSG contends that commercial speech
enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient
has the option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to read them.
cSCTEH

To prohibit the transmission of unsolicited ads would deny a person the right
to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless entitled to protection. 36
The State cannot rob him of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4 (c) (4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4 (c) (4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in
the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings,
or of any other act performed by public officers in the exercise
of their functions.
Art. 355. Libel means by writings or similar means. A libel committed
by means of writing, printing, lithography, engraving, radio,
phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prision
correccional in its minimum and medium periods or a fine ranging
from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus
Section 4 (c) (4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses: EaDATc

xxx xxx xxx

(4) Libel. The unlawful or prohibited acts of libel as defined
in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar
means which may be devised in the future.
Petitioners lament that libel provisions of the penal code 37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it
with the higher standard of "actual malice" as a basis for conviction. 38
Petitioners argue that inferring "presumed malice" from the accused's
defamatory statement by virtue of Article 354 of the penal code infringes on
his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be overturned as the Court has done in
Fermin v. People 39 even where the offended parties happened to be public
figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact 41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not. 42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he published.
Gross or even extreme negligence is not sufficient to establish actual malice.
43

The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement where the offended party is a
public figure. Society's interest and the maintenance of good government
demand a full discussion of public affairs. 44CSAcTa

Parenthetically, the Court cannot accept the proposition that its ruling in
Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the
presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive
to make defamatory imputations against complainants. Thus,
petitioner cannot, by simply making a general denial, convince us
that there was no malice on her part. Verily, not only was there
malice in law, the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours) SIaHTD

Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
P6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement. 45
For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true. 46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country's obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines, 47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel,
the truth may be given in evidence to the court and if it appears that
the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants
shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with respect
to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of expression. 48
Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free
speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law. 49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4 (c) (4) above merely affirms that online
defamation constitutes "similar means" for committing libel.
But the Court's acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings
with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from
that of print.
DaScCH

The internet is characterized as encouraging a freewheeling, anything-goes

writing style. 50 In a sense, they are a world apart in terms of quickness of the
reader's reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement posted on
the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally

liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of
the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement
agencies in enforcing the law. 51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a forest, 52
smuggling merchandise into the country, 53 or interfering in the peaceful
picketing of laborers, 54 his action is essentially physical and so is susceptible
to easy assessment as criminal in character. These forms of aiding or
abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use. ScaHDT

According to the 2011 Southeast Asia Digital Consumer Report, 33% of

Filipinos have accessed the internet within a year, translating to about 31
million users. 55 Based on a recent survey, the Philippines ranks 6th in the
top 10 most engaged countries for social networking. 56 Social networking
sites build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections. 57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in touch. 58
Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile. 59 A user can post a
statement, a photo, or a video on Facebook, which can be made visible to
anyone, depending on the user's privacy settings. acIHDA

If the post is made available to the public, meaning to everyone and not only
to his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the program's screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it
visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read short text-
based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital content
which could be in the form of text, pictures, links, short videos, or other
media on the internet. Instead of friends, a Twitter user has "Followers,"
those who subscribe to this particular user's posts, enabling them to read the
same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his
tweets available only to his Followers, or to the general public. If a post is
available to the public, any Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing another person's tweet without
the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet cafe that may
have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link
to the blog site. 60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider). THEDcS

One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Maria's friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Maria's original post is then multiplied by her friends
and the latter's friends, and down the line to friends of friends almost ad
infinitum. Nena, who is a stranger to both Maria and Linda, comes across this
blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena's "Followers" then "Retweet" the link to
that blog site.
Pamela, a Twitter user, stumbles upon a random person's "Retweet" of
Nena's original tweet and posts this on her Facebook account. Immediately,
Pamela's Facebook Friends start Liking and making Comments on the
assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting
libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be guilty
of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union, 61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of "obscene or
indecent" communications to any recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to send to a specific person
or persons under 18 years of age or to display in a manner available to a
person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment's guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled: SIAEHC

The vagueness of the Communications Decency Act of 1996 (CDA), 47

U.S.C.S. 223, is a matter of special concern for two reasons. First,
the CDA is a content-based regulation of speech. The vagueness of
such a regulation raises special U.S. Const. amend. I concerns
because of its obvious chilling effect on free speech. Second, the
CDA is a criminal statute. In addition to the opprobrium and stigma
of a criminal conviction, the CDA threatens violators with penalties
including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful
words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than
those implicated by certain civil regulations.
xxx xxx xxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223,
presents a great threat of censoring speech that, in fact, falls
outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that
 the statute not be overly broad. The CDA's burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person's image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which seeks
to regulate the use of this cyberspace communication technology to protect
a person's reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected freedoms.
62 ICTDEa

If such means are adopted, self-inhibition borne of fear of what sinister

predicaments await internet users will suppress otherwise robust discussion
of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement. 63
The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts,
comments, and other messages. 64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65
"we must view these statements of the Court on the inapplicability of the
overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount 'facial' challenges to penal
statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition
against third-party standing. 66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute. The rationale
for this exception is to counter the "chilling effect" on protected speech that
comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to avoid being charged of
a crime. The overbroad or vague law thus chills him into silence. 67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that
use it. In this case, the particularly complex web of interaction on social
media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
HCTDIS

Who is to decide when to prosecute persons who boost the visibility of a

posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizen's
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel
destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child
pornography," does this make Google and its users ciders and abettors in the
commission of child pornography crimes? 68 Byars highlights a feature in the
American law on child pornography that the Cybercrimes law lacks the
exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider and cannot be held civilly
liable for any action voluntarily taken in good faith to restrict access
to or availability of material that the provider or user considers to be
obscene . . . whether or not such material is constitutionally
protected. 69

When a person replies to a Tweet containing child pornography, he

effectively republishes it whether wittingly or unwittingly. Does this make him
a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is
forwarded to third parties and unsolicited commercial communication could
be disseminated on the basis of this information. 70 As the source of this
information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4 (c) (4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated. 71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4 (c) (4) on Libel, Section 4 (c)
(3) on Unsolicited Commercial Communications, and Section 4 (c) (2) on Child
Pornography, cannot stand scrutiny. EDISTc

But the crime of aiding or abetting the commission of cybercrimes under

Section 5 should be permitted to apply to Section 4 (a) (1) on Illegal Access,
Section 4 (a) (2) on Illegal Interception, Section 4 (a) (3) on Data Interference,
Section 4 (a) (4) on System Interference, Section 4 (a) (5) on Misuse of
Devices, Section 4 (a) (6) on Cyber-squatting, Section 4 (b) (1) on Computer-
related Forgery, Section 4 (b) (2) on Computer-related Fraud, Section 4 (b) (3)
on Computer-related Identity Theft, and Section 4 (c) (1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that
is necessary to illegally access another party's computer system but the
security employed by the system's lawful owner could frustrate his effort.
Another hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is alerted. 72 If
Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not
right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover
the innocent. 73 While this may be true with respect to cybercrimes that tend
to sneak past the area of free expression, any attempt to commit the other
acts specified in Section 4 (a) (1), Section 4 (a) (2), Section 4 (a) (3), Section 4
(a) (4), Section 4 (a) (5), Section 4 (a) (6), Section 4 (b) (1), Section 4 (b) (2),
Section 4 (b) (3), and Section 4 (c) (1) as well as the actors aiding and abetting
the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code,
as amended, and special laws, if committed by, through and with the
use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the
penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special
laws, as the case may be.TcSAaH
Section 6 merely makes commission of existing crimes through the Internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall
be without prejudice to any liability for violation of any provision of
the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same
fact, if each crime involves some important act which is not an essential
element of the other. 74 With the exception of the crimes of online libel and
online child pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases. SCIAaT

Online libel is different. There should be no question that if the published

material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4 (c) (4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4 (c) (4) is not a new crime but is one
already punished under Article 353. Section 4 (c) (4) merely establishes the
computer system as another means of publication. 75 Charging the offender
under both laws would be a blatant violation of the proscription against
double jeopardy. 76
The same is true with child pornography committed online. Section 4 (c) (2)
merely expands the ACPA's scope so as to include identical activities in
cyberspace. As previously discussed, ACPA's definition of child pornography
in fact already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under both
Section 4 (c) (2) and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable
acts enumerated in Sections 4(a) and 4(b) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (PhP200,000.00) up to a maximum
amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5)
shall be punished with imprisonment of prision mayor or a fine of not
more than Five hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at least
Five hundred thousand pesos (PhP500,000.00) up to maximum
amount commensurate to the damage incurred or both, shall be
imposed. aESIDH

Any person found guilty of any of the punishable acts enumerated in

Section 4(c)(1) of this Act shall be punished with imprisonment of
prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in
Section 4(c)(2) of this Act shall be punished with the penalties as
enumerated in Republic Act No. 9775 or the "Anti-Child Pornography
Act of 2009:" Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in
Section 4(c)(3) shall be punished with imprisonment of arresto mayor
 or a fine of at least Fifty thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos (PhP250,000.00) or
both.
Any person found guilty of any of the punishable acts enumerated in
Section 5 shall be punished with imprisonment one (1) degree lower
than that of the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos (PhP100,000.00) but not
exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4 (a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer
Data and Systems; 4 (b) on Computer-related Offenses; 4 (a) (5) on Misuse of
Devices; when the crime punishable under 4 (a) is committed against critical
infrastructure; 4 (c) (1) on Cybersex; 4 (c) (2) on Child Pornography; 4 (c) (3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense
or might just have been connected with another crime. 77 Judges and
magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides: cACDaH

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement

authorities, with due cause, shall be authorized to collect or record
by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer
system.
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but not
content, nor identities.
 All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or
is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or
to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to

collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they
are to be protected. Petitioners invoke the right of every individual to privacy
and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a
rational relation to the purpose of the law, 79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn. 80 In
assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees. 81 DEICHc

Undoubtedly, the State has a compelling interest in enacting the cybercrime

law for there is a need to put order to the tremendous activities in
cyberspace for public good. 82 To do this, it is within the realm of reason that
the government should be able to monitor traffic data to enhance its ability
to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of
traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes
committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires
signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with
specified communications." 83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterday's traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and,
therefore, real-time data is superfluous for that purpose? Evidently, it is not.
Those who commit the crimes of accessing a computer system without right,
84 transmitting viruses, 85 lasciviously exhibiting sexual organs or sexual
activity for favor or consideration; 86 and producing child pornography 87
could easily evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafs,
from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under
pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways
the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement
authorities regarding their places of operations. Evidently, it is only real-time
traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too
broad and do not provide ample safeguards against crossing legal
boundaries and invading the people's right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain
constitutional guarantees work together to create zones of privacy wherein
governmental powers may not intrude, and that there exists an independent
constitutional right of privacy. Such right to be left alone has been regarded
as the beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe, 90 the United States
Supreme Court classified privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence
in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right
the right to informational privacy that those who oppose government
collection or recording of traffic data in real-time seek to protect.DECcAS

Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion. 91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation
of privacy over a certain matter. The second is an objective test, where his or
her expectation of privacy must be one society is prepared to accept as
objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in relation to
its application to a particular person or group, petitioners' challenge to
Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general public's point of
view. Without reasonable expectation of privacy, the right to it would have no
basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient, accompanying
the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal
service. Those who post letters have no expectations that no one will read
the information appearing outside the envelope.
Computer data messages of all kinds travel across the internet in
packets and in a way that may be likened to parcels of letters or things that
are sent through the posts. When data is sent from any one source, the
content is broken up into packets and around each of these packets is a
wrapper or header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data is in the
packet (SMS, voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits together with
other packets. 93 The difference is that traffic data sent through the internet
at times across the ocean do not disclose the actual names and addresses
(residential or office) of the sender and the recipient, only their coded
internet protocol (IP) addresses. The packets travel from one computer
system to another where their contents are pieced back together. Section 12
does not permit law enforcement authorities to look into the contents of the
messages and uncover the identities of the sender and the recipient. ACSaHc

For example, when one calls to speak to another through his cellphone, the
service provider's communication's system will put his voice message into
packets and send them to the other person's cellphone where they are
refitted together and heard. The latter's spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals
his cellphone number to the service provider when he puts his call through.
He also reveals the cellphone number to the person he calls. The other ways
of communicating electronically follow the same basic pattern.
In Smith v. Maryland, 94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the '70s must realize that
they necessarily convey phone numbers to the telephone company in order
to complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate
or exchange data with one another over cyberspace except through some
service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to recognize as
reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data,
analysts may be able to determine a person's close associations, religious
views, political affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has the procedure that Section
12 of the law provides been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in
drafting the law.ATcaEH

Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning
since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will
be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping
and lacks restraint. While it says that traffic data collection should not
disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these
data in their hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in
these agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation
at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection
of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer's determination of
probable cause that a crime has been committed, that there is no
opportunity for getting a warrant, and that unless the search is immediately
carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12. cDTIAC

The Solicitor General is honest enough to admit that Section 12 provides

minimal protection to internet users and that the procedure envisioned by
the law could be better served by providing for more robust safeguards. His
bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their sources
and destinations must be narrowly drawn to preclude abuses. 95
Petitioners also ask that the Court strike down Section 12 for being violative
of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only to
free speech cases. But Section 12 on its own neither regulates nor punishes
any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance
in ways that have previously been impractical or even impossible. "All the
forces of a technological age . . . operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society." 96 The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity
and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data
and subscriber information relating to communication services
provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content
data shall be similarly preserved for six (6) months from the date of
receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider of
the transmittal document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance. DcCEHI

Petitioners in G.R. 203391 97 claim that Section 13 constitutes an undue

deprivation of the right to property. They liken the data preservation order
that law enforcement authorities are to issue as a form of garnishment of
personal property in civil forfeiture proceedings. Such order prevents
Internet users from accessing and disposing of traffic data that essentially
belong to them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation
to indefinitely keep a copy of the same as they pass its system for the benefit
of users. By virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities,
upon securing a court warrant, shall issue an order requiring any
person or service provider to disclose or submit subscriber's
information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in
relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the
purpose of investigation.ISaCTE

The process envisioned in Section 14 is being likened to the issuance of a

subpoena. Petitioners' objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the power to issue subpoenas is
not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement of a duly
issued court warrant, a function usually lodged in the hands of law enforcers
to enable them to carry out their executive functions. The prescribed
procedure for disclosure would not constitute an unlawful search or seizure
nor would it violate the privacy of communications and correspondence.
Disclosure can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a
search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
CHcESa

(a) To secure a computer system or a computer data storage

medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer
data;
(d) To conduct forensic analysis or examination of the
computer data storage medium; and
(e) To render inaccessible or remove those computer data in
the accessed computer or computer and communications
network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to
enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium
and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would
ensure the proper collection, preservation, and use of computer system or
data that have been seized by virtue of a court warrant. The exercise of these
duties do not pose any threat on the rights of the person from whom they
were taken. Section 15 does not appear to supersede existing search and
seizure rules but merely supplements them. IcHTAa

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the
periods as provided in Sections 13 and 15, service providers and law
enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and
examination.

Section 17 would have the computer data, previous subject of preservation

or examination, destroyed or deleted upon the lapse of the prescribed
period. The Solicitor General justifies this as necessary to clear up the service
provider's storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the user's right against deprivation of
property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider
for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data: aITECA

Sec. 19. Restricting or Blocking Access to Computer Data. When a

computer data is prima facie found to be in violation of the
 provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and

violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data 99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy discussion of property rights
in the digital space, it is indisputable that computer data, produced or
created by their writers or authors may constitute personal property.
Consequently, they are protected from unreasonable searches and seizures,
whether while stored in their personal computers or in the service provider's
systems. aEcADH

Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one's papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further,
it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial
search warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected
without any judicial warrant, it is not enough for him to be of the opinion that
such content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one. 100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule. 101 Section
19, however, merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests
mentioned above. EHSIcT

The Court is therefore compelled to strike down Section 19 for being violative
of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of
Chapter IV hereof specifically the orders from law enforcement
authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correccional in its maximum
period or a fine of One hundred thousand pesos (Php100,000.00) or
both, for each and every noncompliance with an order issued by law
enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The

argument is that the mere failure to comply constitutes a legislative finding
of guilt, without regard to situations where non-compliance would be
reasonable or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829, 102 Section 20 necessarily incorporates
elements of the offense which are defined therein. If Congress had intended
for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period,
or a fine ranging from 1,000 to 6,000 pesos, or both, shall be
imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the
 investigation and prosecution of criminal cases by committing any of
the following acts:
xxx xxx xxx

Thus, the act of non-compliance, for it to be punishable, must still be done

"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies
to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26 (a) of the Cybercrime Law
Sections 24 and 26 (a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is
hereby created, within thirty (30) days from the effectivity of this Act,
an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision
of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the
national cybersecurity plan. cEHSTC

Sec. 26. Powers and Functions. The CICC shall have the following
powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team
(CERT); . . . .
Petitioners mainly contend that Congress invalidly delegated its power when
it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms
and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test
mandates adequate guidelines or limitations in the law to determine the
boundaries of the delegate's authority and prevent the delegation from
running riot. 103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity. CEaDAc

Cybersecurity refers to the collection of tools, policies, risk management

approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and user's
assets. 104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the
policy of the law to "prevent and combat such [cyber] offenses by facilitating
their detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable
international cooperation." 105 This policy is clearly adopted in the interest of
law and order, which has been considered as sufficient standard. 106 Hence,
Sections 24 and 26 (a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4 (c) (3) of Republic Act 10175 that penalizes
posting of unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of
traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4 (a) (1) that penalizes accessing a computer
system without right;
b. Section 4 (a) (3) that penalizes data interference,
including transmission of viruses;
c. Section 4 (a) (6) that penalizes cyber-squatting or
acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4 (b) (3) that penalizes identity theft or the use
or misuse of identifying information belonging to
another;
e. Section 4 (c) (1) that penalizes cybersex or the lascivious
exhibition of sexual organs or sexual activity for
favor or consideration;
f. Section 4 (c) (2) that penalizes the production of child
pornography;
g. Section 6 that imposes penalties one degree higher
when crimes defined under the Revised Penal Code
are committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to
require service providers to preserve traffic data
and subscriber information as well as specified
content data for six months;
j. Section 14 that authorizes the disclosure of computer
data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and
examination of computer data under a court-issued
warrant;
l. Section 17 that authorizes the destruction of previously
preserved computer data after the expiration of the
prescribed holding periods; aATCDI
 m. Section 20 that penalizes obstruction of justice in
relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation
and Coordinating Center (CICC);
o. Section 26 (a) that defines the CICC's Powers and
Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal
Code that penalizes libel.
Further, the Court DECLARES: aDHCEA

1. Section 4 (c) (4) that penalizes online libel as VALID and CONSTITUTIONAL
with respect to the original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission
of cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4
(a) (1) on Illegal Access, Section 4 (a) (2) on Illegal Interception, Section 4 (a) (3)
on Data Interference, Section 4 (a) (4) on System Interference, Section 4 (a) (5)
on Misuse of Devices, Section 4 (a) (6) on Cyber-squatting, Section 4 (b) (1) on
Computer-related Forgery, Section 4 (b) (2) on Computer-related Fraud,
Section 4 (b) (3) on Computer-related Identity Theft, and Section 4 (c) (1) on
Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4 (c)
(2) on Child Pornography, 4 (c) (3) on Unsolicited Commercial
Communications, and 4 (c) (4) on online Libel.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under
both the Revised Penal Code and Republic Act 10175 to actual cases, WITH
THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4 (c) (4)
of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a
violation of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender
under both Section 4 (c) (2) of Republic Act 10175 and Republic Act 9775 or
the Anti-Child Pornography Act of 2009 also constitutes a violation of the
same proscription,
and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED. SAcCIH

Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez and
Reyes, JJ., concur.
Sereno, C.J. and Carpio, J., see concurring & dissenting opinion.
Velasco, Jr., J., took no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., I join Justice Brion in all his positions.
Perlas-Bernabe, J., took no part.
Leonen, J., see separate dissenting and concurring opinion.

Separate Opinions

SERENO, C.J., concurring and dissenting:

The true role of Constitutional Law is to

effect an equilibrium between authority
and liberty so that rights are exercised
within the framework of the law and the
laws are enacted with due deference to
rights.
Justice Isagani A. Cruz 1
When the two other branches of government transgress their inherent
powers, often out of a well-intentioned zeal that causes an imbalance
between authority and liberty, it is the Court's solemn duty to restore the
delicate balance that has been upset. This is the difficult task before us now,
involving as it does our power of judicial review over acts of a coequal
branch.
The task is complicated by the context in which this task is to be discharged:
a rapidly evolving information and communications technology, which has
been an enormous force for good as well as for evil. Moreover, the Court is
forced to grapple with the challenge of applying, to the illimitable cyberspace,
legal doctrines that have heretofore been applied only to finite physical
space. Fortunately, we have the Constitution as our North Star as we try to
navigate carefully the uncharted terrain of cyberspace as the arena of the
conflict between fundamental rights and law enforcement.
I concur with the ponencia in finding unconstitutional Section 12 of
Cybercrime Prevention Act on the real-time collection of traffic data and
Section 19 on the restriction or blocking of access to computer data. I
also adopt the ponencia's discussion of Sections 12 and 19. I write this
Separate Opinion, however, to explain further why real-time collection
of traffic data may be indispensable in certain cases, as well as to
explain how the nature of traffic data per se undercuts any expectation
of privacy in them.
I also concur with the ponencia's partial invalidation of Section 4 (c) (4)
on libel insofar as it purports to create criminal liability on the part of
persons who receive a libelous post and merely react to it; and of Section 7,
in so far as it applies to libel.
TSEAaD

However, I dissent from the ponencia's upholding of Section 6 as not

unconstitutional in all its applications. I find Section 6 to be
unconstitutional insofar as it applies to cyberlibel because of its "chilling
effect." Hence, I am writing this Separate Opinion also to explain my dissent
on this issue.
I find the rest of the constitutional challenges not proper for a pre-
enforcement judicial review and therefore dismissible.
I.
THIS COURT MAY EMPLOY A PRE-ENFORCEMENT
JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.
As distinguished from the general notion of judicial power, the power of
judicial review especially refers to both the authority and the duty of this
Court to determine whether a branch or an instrumentality of government
has acted beyond the scope of the latter's constitutional powers. 2 It includes
the power to resolve cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question. 3
This power, first verbalized in the seminal case Marbury v. Madison, 4 has
been exercised by the Philippine Supreme Court since 1902. 5 The 1936 case
Angara v. Electoral Commission exhaustively discussed the concept as follows:
6 ISCcAT

The separation of powers is a fundamental principle in our system of

government. It obtains not through express provision but by actual
division in our Constitution. Each department of the government
has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that
the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination
in the workings of the various departments of the government. .
. . . And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise
of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the
Constitution.
xxx xxx xxx
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power
of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
 constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution.
In the United States where no express constitutional grant is found in
their constitution, the possession of this moderating power of the
courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more
than one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of
article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is
to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. (Emphases supplied) ETDSAc

The power of judicial review has since been strengthened in the 1987
Constitution, extending its coverage to the determination of whether there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. 7
The expansion made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from
judicial inquiry or review." 8 Thus, aside from the test of constitutionality, this
Court has been expressly granted the power and the duty to examine
whether the exercise of discretion in those areas that are considered political
questions was attended with grave abuse. 9 IHEaAc
This moderating power of the Court, however, must be exercised carefully,
and only if it cannot be feasibly avoided, as it involves the delicate exercise
of pronouncing an act of a branch or an instrumentality of government
unconstitutional, at the risk of supplanting the wisdom of the
constitutionally appointed actor with that of the judiciary. 10 It cannot be
overemphasized that our Constitution was so incisively designed that the
different branches of government were made the respective experts in their
constitutionally assigned spheres. 11 Hence, even as the Court dutifully
exercises its power of judicial review to check in this case, the legislature
it must abide by the strict requirements of its exercise under the
Constitution. Indeed, "[a] ruling of unconstitutionality frustrates the intent of
the elected representatives of the people." 12
Demetria v. Alba 13 and Francisco v. House of Representatives 14 cite the "seven
pillars" of the limitations of the power of judicial review, enunciated in the
concurring opinion of U.S. Supreme Court Justice Louis Brandeis in
Ashwander v. Tennessee Valley Authority 15 as follows:
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary, proceeding,
declining because to decide such questions "is legitimate
only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy
between individuals. It never was the thought that, by means
of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of
the legislative act." . . . .
2. The Court will not "anticipate a question of constitutional law
in advance of the necessity of deciding it." . . . . "It is not the
habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case."
3. The Court will not "formulate a rule of constitutional law
broader than is required by the precise facts to which it is
to be applied." . . . .
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of. This rule has found most varied application.
 Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide
only the latter. . . . .
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. . . . . Among the many applications of this rule,
none is more striking than the denial of the right of challenge
to one who lacks a personal or property right. Thus, the
challenge by a public official interested only in the
performance of his official duty will not be entertained. . . . .
ADEacC

6. The Court will not pass upon the constitutionality of a statute

at the instance of one who has availed himself of its
benefits. . . . .
7. "When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which
the question may be avoided." (Citations omitted, emphases
supplied)
These are specific safeguards laid down by the Court when it exercises its
power of judicial review. Thus, as a threshold condition, the power of judicial
review may be invoked only when the following four stringent requirements
are satisfied: (a) there must be an actual case or controversy; (b) petitioners
must possess locus standi; (c) the question of constitutionality must be raised
at the earliest opportunity; and (d) the issue of constitutionality must be the
lis mota of the case. 16
Specifically focusing on the first requisite, it necessitates that there be an
existing case or controversy that is appropriate or ripe for determination as
opposed to a case that is merely conjectural or anticipatory. 17 The case must
involve a definite and concrete issue concerning real parties with conflicting
legal rights and opposing legal claims, admitting of a specific relief through a
decree conclusive in nature. 18 The "ripeness" for adjudication of the
controversy is generally treated in terms of actual injury to the plaintiff. 19
Hence, a question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. The case should
not equate with a mere request for an opinion or an advice on what the law
would be upon an abstract, hypothetical, or contingent state of facts. 20 As
explained in Angara v. Electoral Commission: 21 HICEca

[The] power of judicial review is limited to actual cases and

controversies to be exercised after full opportunity of argument
by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to
sterile conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and
legislative departments of the government. (Emphases supplied)

According to one of the most respected authorities in American

constitutional law, Professor Paul A. Freund, the actual case or controversy
requirement is a crucial restraint on the power of unelected judges to set
aside the acts of the people's representative to Congress. 22 Furthermore, he
explains: 23
The rules of "case and controversy" can be seen as the necessary
corollary of this vast power necessary for its wise exercise and its
popular acceptance. By declining to give advisory opinions, the
Court refrains from intrusion into the lawmaking process. By
requiring a concrete case with litigants adversely affected, the
Court helps itself to avoid premature, abstract, ill-informed
judgments. By placing a decision on a non-constitutional ground
whenever possible, the Court gives the legislature an opportunity
for sober second thought, an opportunity to amend the statue
to obviate the constitutional question, a chance to exercise that
spirit of self-scrutiny and self-correction which is the essence of a
successful democratic system. (Emphases supplied) HTScEI

While the actual controversy requirement has been largely interpreted in the
light of the implications of the assailed law vis- -vis the legally demandable
rights of real parties and the direct injury caused by the assailed law, we
have also exceptionally recognized the possibility of lodging a
constitutional challenge sans a pending case involving a directly injured
party. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, 24 we conceded the possibility of a pre-enforcement judicial review
of a penal statute, so long as there is a real and credible threat of
prosecution involving the exercise of a constitutionally protected
conduct or activity. 25 We noted that the petitioners therein should not be
required to expose themselves to criminal prosecution before they
could assail the constitutionality of a statute, especially in the face of
an imminent and credible threat of prosecution. 26
On 5 February 2013, this Court extended indefinitely the temporary
restraining order enjoining the government from implementing and
enforcing the Cybercrime Prevention Act of 2012. As the assailed law is yet to
be enforced, I believe that in order to give due course to the Petitions, we
would have to test their qualification for pre-enforcement judicial review of
the assailed law and its provisions.
In discussing the requirements of a pre-enforcement judicial review, we refer
to our ruling in Southern Hemisphere. We declined to perform a pre-
enforcement judicial review of the assailed provisions of the Human Security
Act of 2007, because petitioners failed to show that the law forbade them
from exercising or performing a constitutionally protected conduct or activity
that they sought to do. We also explained that the obscure and speculative
claims of the petitioners therein that they were being subjected to sporadic
"surveillance" and tagged as "communist fronts" were insufficient to reach
the level of a credible threat of prosecution that would satisfy the actual-
controversy requirement. Thus, from the facts they had shown, we ruled that
the Court was merely "being lured to render an advisory opinion, which [was]
not its function." 27
We then drew a distinction between the facts in Southern Hemisphere and
those in Holder v. Humanitarian Law Project, a case decided by the United
States Supreme Court. We noted that in Holder, a pre-enforcement judicial
review of the assailed criminal statue was entertained because the plaintiffs
therein had successfully established that there was a genuine threat of
imminent prosecution against them, thereby satisfying the actual-
controversy requirement. The case concerned a new law prohibiting the
grant of material support or resources to certain foreign organizations
engaged in terrorist activities. Plaintiffs showed that they had been providing
material support to those declared as foreign terrorist organizations; and
that, should they continue to provide support, there would be a credible
threat of prosecution against them pursuant to the new law. The plaintiffs
therein insisted that they only sought to facilitate the lawful, nonviolent
purposes of those groups such as the latter's political and humanitarian
activities and that the material-support law would prevent the plaintiffs
from carrying out their rights to free speech and to association. Based on the
foregoing considerations, the U.S. Supreme Court concluded that the claims
of the plaintiffs were suitable for judicial review, as there was a justiciable
case or controversy. STECDc

We may thus cull from the foregoing cases that an anticipatory petition
assailing the constitutionality of a criminal statute that is yet to be enforced
may be exceptionally given due course by this Court when the following
circumstances are shown: (a) the challenged law or provision forbids a
constitutionally protected conduct or activity that a petitioner seeks to
do; (b) a realistic, imminent, and credible threat or danger of sustaining
a direct injury or facing prosecution awaits the petitioner should the
prohibited conduct or activity be carried out; and (c) the factual
circumstances surrounding the prohibited conduct or activity sought to be
carried out are real, not hypothetical and speculative, and are
sufficiently alleged and proven. 28 It is only when these minimum
conditions are satisfied can there be a finding of a justiciable case or actual
controversy worthy of this Court's dutiful attention and exercise of pre-
enforcement judicial review. Furthermore, since the issue of the propriety of
resorting to a pre-enforcement judicial review is subsumed under the
threshold requirement of actual case or controversy, we need not go through
the merits at this stage. Instead, the determination of whether or not to
exercise this power must hinge solely on the allegations in the petition,
regardless of the petitioner's entitlement to the claims asserted.
A review of the petitions before us shows that, save for the Disini Petition, 29
all petitions herein have failed to establish that their claims call for this
Court's exercise of its power of pre-enforcement judicial review.
Petitioners allege that they are users of various information and
communications technologies (ICT) as media practitioners, journalists,
lawyers, businesspersons, writers, students, Internet and social media users,
and duly elected legislators. However, except for the Petition of Disini,
none of the other petitioners have been able to show that they are
facing an imminent and credible threat of prosecution or danger of
sustaining a direct injury. Neither have they established any real, factual
circumstances in which they are at risk of direct injury or prosecution, should
those acts continue to be carried out. aEAcHI

They have simply posed hypothetical doomsday scenarios and speculative

situations, such as round-the-clock, Big-Brother-like surveillance; covert
collection of digital and personal information by the government; or a
wanton taking down of legitimate websites. 30 Others have made outright
legal queries on how the law would be implemented in various
circumstances, such as when a person disseminates, shares, affirms, "likes,"
"retweets," or comments on a potentially libelous article. 31 A considerable
number of them have merely raised legal conclusions on the implication of
the new law, positing that the law would per se prevent them from freely
expressing their views or comments on intense national issues involving
public officials and their official acts. 32 While these are legitimate
concerns of the public, giving in to these requests for advisory opinion
would amount to an exercise of the very same function withheld from
this Court by the actual controversy requirement entrenched in Section
1, Article III of our Constitution.
The Petition of Disini is the only pleading before the Court that seems to
come close to the actual-controversy requirement under the Constitution.
What sets the Petition apart is that it does not merely allege that petitioners
therein are ICT users who have posted articles and blogs on the Internet. The
Petition also cites particular blogs or online articles of one of the petitioners
who was critical of a particular legislator. 33 Furthermore, it refers to a
newspaper article that reported the legislator's intent to sue under the new
law, once it takes effect. The pertinent portion of the Petition reads: 34
5. Petitioners are all users of the Internet and social media.
Petitioner Ernesto Sonido, Jr. ("Petitioner Sonido"), in
 particular, maintains the blog "Baratillo Pamphlet" over
the Internet.DTAHSI

6. On August 22, 2012 and September 7, 2012, Petitioner Sonido

posted 2 blogs entitled "Sotto Voce: Speaking with
Emphasis" and "Sotto and Lessons on Social Media" in
which he expressed his opinions regarding Senator
Vicente "Tito" Sotto III's ("Senator Sotto") alleged
plagiarism of online materials for use in his speech against
the Reproductive Health Bill.
7. On August 30, 2012, Senator Sotto disclosed that the
Cybercrime Bill was already approved by the Senate and
the House of Representatives and was merely awaiting the
President's signature. He then warned his critics that once
signed into law, the Cybercrime Bill will penalize
defamatory statements made online. To quote Senator
Sotto:
"Walang ginawa yan [internet users] umaga,
hapon, nakaharap sa computer, target nuon
anything about the [Reproductive Health] Bill.
Ganun ang strategy nunand unfortunately, di
panapipirmahan ang Cybercrime bill. Pwede
na sana sila tanungin sa pagmumura at
pagsasabi ng di maganda. Sa Cybercrime bill,
magkakaroon ng accountability sa kanilang
pinagsasabi, penalties na haharapin, same
penalties as legitimate journalists, anything
that involves the internet," he said.
8. The threat of criminal prosecution that was issued by Senator
Sotto affected not only bloggers like Petitioner Sonido but all
users of the Internet and social media as the other Petitioners
herein who utilize online resources to post comments and
express their opinions about social issues.ECTIcS

9. The President finally signed the Cybercrime Act into law on

September 12, 2012.
10. With the passage of the Cybercrime Act, the threat that was
issued by Senator Sotto against his online critics has
become real. (Emphases and italics supplied) CAIaHS
The Petition of Disini appears to allege sufficient facts to show a realistic,
imminent, and credible danger that at least one of its petitioners may sustain
a direct injury should respondents proceed to carry out the prohibited
conduct or activity. First, there was a citation not only of a particular blog, but
also of two potentially libelous entries in the blog. Second, the plausibly
libelous nature of the articles was specifically described. Third, the subject of
the articles, Senator Vicente Sotto III, was alleged to have made threats of
using the assailed statute to sue those who had written unfavorably about
him; a verbatim quote of the legislator's threat was reproduced in the
Petition. Fourth, the person potentially libeled is a nationally elected
legislator.
This combination of factual allegations seems to successfully paint a realistic
possibility of criminal prosecution under Section 4 (c) (4) of a specific person
under the assailed law. Consequently, there is now also a possibility of the
writer being penalized under Section 6, which raises the penalty for crimes
such as libel by one degree when committed through ICT. The alleged facts
would also open the possibility of his being charged twice under Section 4 (c)
(4) and Article 353 of the Revised Penal Code by virtue of Section 7.
Furthermore, since he might become a suspect in the crime of libel, his
online activities might be in danger of being investigated online by virtue of
Section 12 or his access to computer data might be restricted under Section
19.
Therefore, it is submitted that the Court must limit its discussion of the
substantive merits of the cases to the Petition of Disini, at the most and only
on the provisions questioned therein.
II.
PARTICULAR PROVISIONS OF THE
CYBERCRIME PREVENTION ACT
MAY BE FACIALY INVALIDATED.
A facial challenge refers to the call for the scrutiny of an entire law or
provision by identifying its flaws or defects, not only on the basis of its actual
operation on the attendant facts raised by the parties, but also on the
assumption or prediction that the very existence of the law or provision is
repugnant to the Constitution. 35 This kind of challenge has the effect of
totally annulling the assailed law or provision, which is deemed to be
unconstitutional per se. The challenge is resorted to by courts, especially
when there is no instance to which the law or provision can be validly
applied. 36TADCSE

In a way, a facial challenge is a deviation from the general rule that Courts
should only decide the invalidity of a law "as applied" to the actual, attending
circumstances before it. 37 An as-applied challenge refers to the localized
invalidation of a law or provision, limited by the factual milieu established in
a case involving real litigants who are actually before the Court. 38 This kind
of challenge is more in keeping with the established canon of adjudication
that "the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied." 39 Should the petition
prosper, the unconstitutional aspects of the law will be carved away by
invalidating its improper applications on a case-to-case basis. 40 For
example, in Ebralinag v. Division of Superintendent of Schools of Cebu, 41 the
Court exempted petitioner-members of the religious group Jehovah's
Witness from the application of the Compulsory Flag Ceremony in Educational
Institutions Act on account of their religious beliefs. The Court ruled that the
law requiring them to salute the flag, sing the national anthem, and recite the
patriotic pledge cannot be enforced against them at the risk of expulsion,
because the law violated their freedom of religious expression. In effect, the
law was deemed unconstitutional insofar as their religious beliefs were
concerned.
Because of its effect as a total nullification, the facial invalidation of laws is
deemed to be a "manifestly strong medicine" that must be used sparingly
and only as a last resort. 42 The general disfavor towards it is primarily due to
the "combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes." 43 Claims of facial invalidity "raise the risk of 'premature
interpretation of statutes on the basis of factually barebones records.'" 44
A. Section 6 Increase of Penalty by
One Degree
Section 6 was worded to apply to all existing penal laws in this jurisdiction.
Due to the sheer extensiveness of the applicability of this provision, I believe
it unwise to issue a wholesale facial invalidation thereof, especially because
of the insufficiency of the facts that would allow the Court to make a
conclusion that the provision has no valid application. DHEaTS

Alternatively, the discussion can be limited to the allegations raised in the

Petition of Disini concerning the right to free speech. The Petition asserts that
Section 6 (on the increase of penalty by one degree), in conjunction with the
provision on cyberlibel, has the combined chilling effect of curtailing the right
to free speech. The Petition posits that the law "imposes heavier penalties for
online libel than paper-based libel" in that the imposable penalty for online
libel is now increased from prisin correccional in its minimum and medium
periods (6 months and 1 day to 4 years and 2 months) to prisin mayor in its
minimum and medium periods (6 years and 1 day to 10 years). 45
The ponencia correctly holds that libel is not a constitutionally protected
conduct. It is also correct in holding that, generally, penal statutes cannot be
invalidated on the ground that they produce a "chilling effect," since by their
very nature, they are intended to have an in terrorem effect (benign chilling
effect) 46 to prevent a repetition of the offense and to deter criminality. 47 The
"chilling effect" is therefore equated with and justified by the intended in
terrorem effect of penal provisions. cEaACD

This does not mean, however, that the Constitution gives Congress the carte
blanche power to indiscriminately impose and increase penalties. While the
determination of the severity of a penalty is a prerogative of the legislature,
when laws and penalties affect free speech, it is beyond question that the
Court may exercise its power of judicial review to determine whether there
has been a grave abuse of discretion in imposing or increasing the penalty.
The Constitution's command is clear: "No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of
grievances." Thus, when Congress enacts a penal law affecting free
speech and accordingly imposes a penalty that is so discouraging that it
effectively creates an invidious chilling effect, thus impeding the
exercise of speech and expression altogether, then there is a ground to
invalidate the law. In this instance, it will be seen that the penalty
provided has gone beyond the in terroremeffect needed to deter crimes
and has thus reached the point of encroachment upon a preferred
constitutional right. I thus vote to facially invalidate Section 6 insofar as it
applies to the crime of libel.
As will be demonstrated below, the confluence of the effects of the increase
in penalty under this seemingly innocuous provision, insofar as it is applied
to libel, will practically result in chilling the right of the people to free speech
and expression.
Section 6 creates an additional in
terrorem effect on top of that
already created by Article 355 of
the Revised Penal Code
The basic postulate of the classical penal system on which our Revised Penal
Code is based is that humans are rational and calculating beings who guide
their actions by the principles of pleasure and pain. 48 They refrain from
criminal acts if threatened with punishment sufficient to cancel the hope of
possible gain or advantage in committing the crime. 49 This consequence is
what is referred to as the in terrorem effect sought to be created by the
Revised Penal Code in order to deter the commission of a crime. 50 Hence, in
the exercise of the people's freedom of speech, they carefully decide
whether to risk publishing materials that are potentially libelous by weighing
the severity of the punishment if and when the speech turns out to be
libelous against the fulfillment and the benefits to be gained by them. cEAHSC

Our Revised Penal Code increases the imposable penalty when there are
attending circumstances showing a greater perversity or an unusual criminality
in the commission of a felony. 51 The intensified punishment for these so-
called aggravating circumstances is grounded on various reasons, which may
be categorized into (1) the motivating power itself, (2) the place of
commission, (3) the means and ways employed, (4) the time, or (5) the
personal circumstances of the offender or of the offended parry. 52 Based on
the aforementioned basic postulate of the classical penal system, this is an
additional in terrorem effect created by the Revised Penal Code, which targets
the deterrence of a resort to greater perversity or to an unusual criminality in
the commission of a felony.
Section 4 (c) (4) of the Cybercrime Prevention Act expressly amended Article
355 of the Revised Penal Code, thereby clarifying that the use of a "computer
system or any other similar means" is a way of committing libel. On the other
hand, Section 6 of the Cybercrime Prevention Act introduces a qualifying
aggravating circumstance, which reads:
SEC. 6. All crimes defined and penalized by the Revised Penal Code,
as amended, and special laws, if committed by, through and with
the use of information and communications technologies shall
be covered by the relevant provisions of this Act: Provided, That the
penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special
laws, as the case may be. (Emphases supplied) DTAHEC

A perfunctory application of the aforementioned sections would thus suggest

the amendment of the provision on libel in the Revised Penal Code, which now
appears to contain a graduated scale of penalties as follows:
ARTICLE 355. Libel by Means Writings or Similar Means. A libel
committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prisin
correccional in its minimum and medium periods or a fine ranging
from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
[Libel committed by, through and with the use of a computer
system or any other similar means which may be devised in the
future shall be punished by 53 prisin correccional in its maximum
period to prisin mayor in its minimum period]. (Emphases
supplied)

Section 6 effectively creates an additional in terrorem effect by

introducing a qualifying aggravating circumstance: the use of ICT. This
additional burden is on top of that already placed on the crimes themselves,
since the in terrorem effect of the latter is already achieved through the
original penalties imposed by the Revised Penal Code. Consequently, another
consideration is added to the calculation of penalties by the public. It will
now have to weigh not only whether to exercise freedom of speech, but also
whether to exercise this freedom through ICT.
One begins to see at this point how the exercise of freedom of speech is
clearly burdened. The Court can take judicial notice of the fact that ICTs are
fast becoming the most widely used and accessible means of communication
and of expression. Educational institutions encourage the study of ICT and
the acquisition of the corresponding skills. Businesses, government
institutions and civil society organizations rely so heavily on ICT that it is no
exaggeration to say that, without it, their operations may grind to a halt.
News organizations are increasingly shifting to online publications, too. The
introduction of social networking sites has increased public participation in
socially and politically relevant issues. In a way, the Internet has been
transformed into "freedom parks." Because of the inextricability of ICT from
modern life and the exercise of free speech and expression, I am of the
opinion that the increase in penalty per se effectively chills a significant
amount of the exercise of this preferred constitutional right.
The chill does not stop there. As will be discussed below, this increase in
penalty has a domino effect on other provisions in the Revised Penal
Code thereby further affecting the public's calculation of whether or not
to exercise freedom of speech. It is certainly disconcerting that these
effects, in combination with the increase in penalty per se, clearly operate to
tilt the scale heavily against the exercise of freedom of speech.
The increase in penalty also
results in the imposition
of harsher accessory
penalties.
Under the Revised Penal Code, there are accessory penalties that are
inherent in certain principal penalties. Article 42 thereof provides that the
principal (afflictive) penalty of prisin mayor carries with it the accessory
penalty of temporary absolute disqualification. According to Article 30, this
accessory penalty shall produce the following effects:
1. The deprivation of the public offices and employments
which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for any
popular elective office or to be elected to such office.
 3. The disqualification for the offices or public
employments and for the exercise of any of the rights
mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this article shall
last during the term of the sentence. DCATHS

4. The loss of all right to retirement pay or other pension

for any office formerly held. (Emphases supplied)
Furthermore, the accessory penalty of perpetual special disqualification
from the right of suffrage shall be meted out to the offender. Pursuant to
Article 32, this penalty means that the offender shall be perpetually
deprived of the right (a) to vote in any popular election for any public office;
(b) to be elected to that office; and (c) to hold any public office. 54 This
perpetual special disqualification will only be wiped out if expressly remitted
in a pardon.
On the other hand, Article 43 provides that when the principal (correctional)
penalty of prisin correccional is meted out, the offender shall also suffer
the accessory penalty of suspension from public office and from the right
to follow a profession or calling during the term of the sentence. While
the aforementioned principal penalty may carry with it the accessory penalty
of perpetual special disqualification from the right of suffrage, it will only be
imposed upon the offender if the duration of imprisonment exceeds 18
months.
Before the Cybercrime Prevention Act, the imposable penalty for libel under
Art. 355 of the Revised Penal Code, even if committed by means of ICT, is
prisin correccional in its minimum and medium periods. Under Section 6 of
the Cybercrime Prevention Act, the imposable penalty for libel qualified by ICT
is now increased to prisin correccional in its maximum period to prisin
mayor in its minimum period. 55 Consequently, it is now possible for the
above-enumerated harsher accessory penalties for prisin mayor to attach
depending on the presence of mitigating circumstances. EcTCAD

Hence, the public will now have to factor this change into their calculations,
which will further burden the exercise of freedom of speech through ICT.
 The increase in penalty neutralizes
the full benefits of the law on
probation, effectively threatening
the public with the guaranteed
imposition of imprisonment and
the accessory penalties thereof.
Probation 56 is a special privilege granted by the State to penitent, qualified
offenders who immediately admit to their liability and thus renounce the
right to appeal. In view of their acceptance of their fate and willingness to be
reformed, the State affords them a chance to avoid the stigma of an
incarceration record by making them undergo rehabilitation outside prison.
Section 9 of Presidential Decree No. (P.D.) 968, as amended otherwise
known as the Probation Law provides as follows:
Sec. 9. Disqualified Offenders. The benefits of this Decree shall not
be extended to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of subversion or any crime against the national security
or the public order;
(c) who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month
and one day and/or a fine of not less than Two Hundred
Pesos;
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to
Section 33 hereof. (Emphasis supplied) HAISEa

Pursuant to Article 355 of the Revised Penal Code, libel is punishable by

prisin correccional in its minimum (from 6 months and 1 day to 2 years and 4
months) and medium (from 2 years, 4 months, and 1 day to 4 years and 2
months) periods. However, in the light of the increase in penalty by one
degree under the Cybercrime Prevention Act, libel qualified by the use of ICT is
now punishable by prisin correccional in its maximum period (from 4 years,
2 months and 1 day to 6 years) to prisin mayor in its minimum period (from
6 years and 1 day to 8 years). 57 This increased penalty means that if libel is
committed through the now commonly and widely used means of
communication, ICT, libel becomes a non-probationable offense.
One of the features of the Probation Law is that it suspends the execution of
the sentence imposed on the offender. 58 In Moreno v. Commission on
Elections, 59 we reiterated our discussion in Baclayon v. Mutia 60 and explained
the effect of the suspension as follows:
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the
principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to
follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that
petitioner refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties
of suspension from public office, from the right to follow a
profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the
penalty of arresto mayor in its maximum period to prisin
correccional in its minimum period imposed upon Moreno were
similarly suspended upon the grant of probation.
It appears then that during the period of probation, the
probationer is not even disqualified from running for a public
office because the accessory penalty of suspension from public
office is put on hold for the duration of the probation. (Emphases
supplied) STIHaE

It is not unthinkable that some people may risk a conviction for libel,
considering that they may avail themselves of the privilege of probation for
the sake of exercising their cherished freedom to speak and to express
themselves. But when this seemingly neutral technology is made a
qualifying aggravating circumstance to a point that a guaranteed
imprisonment would ensue, it is clear that the in terrorem effect of libel
is further magnified, reaching the level of an invidious chilling effect.
The public may be forced to forego their prized constitutional right to free
speech and expression in the face of as much as eight years of
imprisonment, like the sword of Damocles hanging over their heads.
Furthermore, it should be noted that one of the effects of probation is the
suspension not only of the penalty of imprisonment, but also of the
accessory penalties attached thereto. Hence, in addition to the in terrorem
effect supplied by the criminalization of a socially intolerable conduct and the
in terrorem effect of an increase in the duration of imprisonment in case of
the presence of an aggravating circumstance, the Revised Penal Code
threatens further 61 by attaching accessory penalties to the principal
penalties.
Section 6 increases the
prescription periods for the crime
of cyberlibel and its penalty to 15
years.
Crimes and their penalties prescribe. The prescription of a crime refers to the
loss or waiver by the State of its right to prosecute an act prohibited and
punished by law. 62 It commences from the day on which the crime is
discovered by the offended party, the authorities or their agents. 63 On the
other hand, the prescription of the penalty is the loss or waiver by the State of
its right to punish the convict. 64 It commences from the date of evasion of
service after final sentence. Hence, in the prescription of crimes, it is the
penalty prescribed by law that is considered; in the prescription of penalties, it
is the penalty imposed. 65 IDCcEa

By setting a prescription period for crimes, the State by an act of grace

surrenders its right to prosecute and declares the offense as no longer
subject to prosecution after a certain period. 66 It is an amnesty that casts the
offense into oblivion and declares that the offenders are now at liberty to
return home and freely resume their activities as citizens. 67 They may now
rest from having to preserve the proofs of their innocence, because the
proofs of their guilt have been blotted out. 68
The Revised Penal Code sets prescription periods for crimes according to the
following classification of their penalties:
 ARTICLE 90. Prescription of Crimes. Crimes punishable by death,
reclusin perpetua or reclusin temporal shall prescribe in twenty
years.
Crimes punishable by other afflictive penalties shall prescribe in
fifteen years.
Those punishable by a correctional penalty shall prescribe in ten
years; with the exception of those punishable by arresto mayor,
which shall prescribe in five years.
TCEaDI

The crime of libel or other similar offenses shall prescribe in one

year.
The offenses of oral defamation and slander by deed shall prescribe
in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one the highest
penalty shall be made the basis of the application of the rules
contained in the first, second and third paragraphs of this article.
(Emphases supplied)

On the other hand, Article 92 on the prescription of penalties states:

ARTICLE 92. When and How Penalties Prescribe. The penalties
imposed by final sentence prescribe as follows:
1. Death and reclusin perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of
the penalty of arresto mayor, which prescribes in five
years;
4. Light penalties, in one year. (Emphases supplied)
As seen above, before the passage of the Cybercrime Prevention Act, the state
effectively waives its right to prosecute crimes involving libel. Notably, the
prescription period for libel used to be two years, but was reduced to one
year through Republic Act No. 4661 on 18 June 1966. 69 Although the law
itself does not state the reason behind the reduction, we can surmise that it
was made in recognition of the harshness of the previous period, another act
of grace by the State.
With the increase of penalty by one degree pursuant to Section 6 of the
Cybercrime Prevention Act, however, the penalty for libel through ICT becomes
afflictive under Article 25 of the Revised Penal Code. Accordingly, under the
above-quoted provision, the crime of libel through ICT shall now possibly
prescribe in 15 years a 15-fold increase in the prescription period. 70 In
effect, the State's grant of amnesty to the offender will now be delayed by 14
years more. Until a definite ruling from this Court in a proper case is made,
there is uncertainty as to whether the one-year prescription period for
ordinary libel will also apply to libel through ICT.
Similarly, under Article 92, the prescription period for the penalty of libel
through ICT is also increased from 10 years the prescription period for
correctional penalties to 15 years, the prescription for afflictive penalties
other than reclusin perpetua.
These twin increases in both the prescription period for the crime of libel
through ICT and in that for its penalty are additional factors in the public's
rational calculation of whether or not to exercise their freedom of speech
and whether to exercise that freedom through ICT. Obviously, the increased
prescription periods yet again tilt the scales, heavily against the exercise
of this freedom.
Regrettably, the records of the Bicameral Conference Committee
deliberation do not show that the legislators took into careful consideration
this domino effect that, when taken as a whole, clearly discourages the
exercise of free speech. This, despite the fact that the records of the
committee deliberations show that the legislators became aware of the need
to carefully craft the application of the one-degree increase in penalty and
"to review again the Revised Penal Code and see what ought to be punished,
if committed through the computer." But against their better judgment, they
proceeded to make an all-encompassing application of the increased penalty
sans any careful study, as the proceedings show: HDAaIc

THE CHAIRMAN (REP. TINGA).

With regard to some of these offenses, the reason why they were not
included in the House version initially is that, the assumption that
the acts committed that would make it illegal in the real world
would also be illegal in the cyberworld, 'no.
For example, libel po. When we discussed this again with the Department
of Justice, it was their suggestion to include an all-encompassing
paragraph. . . aHcDEC

THE CHAIRMAN (SEN. ANGARA). (Off-mike)

A catch all
THE CHAIRMAN (SEN. TINGA).
. . . a catch all, wherein all crimes defined and penalized by the Revised
Penal Code as amended and special criminal laws committed by,
through, and with the use of information and communications
technology shall be covered by the relevant provisions of this act.
By so doing, Mr. Chairman, we are saying that if we missed out on
any of these crimes we did not specify them, point by point
they would still be covered by this act, 'no.
So it would be up to you, Mr. Chairman. . .
THE CHAIRMAN (SEN. ANGARA).
Yeah.
xxx xxx xxx
THE CHAIRMAN (REP. TINGA).
. . . do we specify this and then or do we just use an all-encompassing
paragraph to cover them. AHEDaI

THE CHAIRMAN (SEN. ANGARA).

Well, as you know, the Penal Code is really a very, very old code. In fact, it
dates back to the Spanish time and we amend it through several
Congresses. So like child pornography, this is a new crime, cybersex
is a new crime. Libel through the use of computer system is a novel
way of slandering and maligning people. So we thought that we
must describe it with more details and specificity as required by the
rules of the Criminal Law. We've got to be specific and not
general in indicting a person so that he will know in advance
what he is answering for. But we can still include and let-
anyway, we have a separability clause, a catch all provision that
you just suggested and make it number five. Any and all crimes
punishable under the Revised Penal Code not heretofore
enumerated above but are committed through the use of
 computer or computer system shall also be punishable but we
should match it with a penalty schedule as well.
So we've got to review. Mukhang mahirap gawin yun, huh. We have to
review again the Revised Penal Code and see what ought to be
punished, if committed through the computer. Then we've got
to review the penalty, huh.
THE CHAIRMAN (REP. TINGA).
I agree, Mr. Chairman, that you are defining the newer crimes. But I also
agree as was suggested earlier that there should be an all-
encompassing phrase to cover these crimes in the Penal Code,
'no. Can that not be matched with a penalty clause that would
cover it as well? Instead of us going line by line through the
THE CHAIRMAN (SEN. ANGARA).
So you may just have to do that by a reference. The same penalty
imposed under the Revised Penal Code shall be imposed on
these crimes committed through computer or computer
systems. aDcTHE

xxx xxx xxx

THE CHAIRMAN (REP. TINGA).
Okay.
And may we recommend, Mr. Chairman, that your definition of the
penalty be added as well where it will be one degree higher. . .
THE CHAIRMAN (SEN. ANGARA).
Okay.
THE CHAIRMAN (REP. TINGA).
. . . than the relevant penalty as prescribed in the Revised Penal
Code.
So, we agree with your recommendation, Mr. Chairman.
xxx xxx xxx
THE CHAIRMAN (SEN. ANGARA).
 Okay, provided that the penalty shall be one degree higher than that
imposed under the Revised Penal Code. HSCATc

Okay, so
xxx xxx xxx
REP. C. SARMIENTO.
Going by that ruling, if one commits libel by email, then the penalty
is going to be one degree higher. . .
THE CHAIRMAN (SEN. ANGARA).
One degree higher.
REP. C. SARMIENTO.
. . . using email?
THE CHAIRMAN (SEN. ANGARA).
Yes.
REP. C. SARMIENTO.
As compared with libel through media or distributing letters or
faxes.
THE CHAIRMAN (SEN. ANGARA).
I think so, under our formulation. Thank you. (Emphases supplied) 71
DCcAIS

ICT as a qualifying aggravating

circumstance cannot be offset by
any mitigating circumstance.
A qualifying aggravating circumstance has the effect not only of giving the
crime its proper and exclusive name, but also of placing the offender in such
a situation as to deserve no other penalty than that especially prescribed for
the crime. 72 Hence, a qualifying aggravating circumstance increases the
penalty by degrees. For instance, homicide would become murder if
attended by the qualifying circumstance of treachery, thereby increasing the
penalty from reclusin temporal to reclusin perpetua. 73 It is unlike a generic
aggravating circumstance, which increases the penalty only to the maximum
period of the penalty prescribed by law, and not to an entirely higher degree.
74 For instance, if the generic aggravating circumstance of dwelling or
nighttime attends the killing of a person, the penalty will remain the same as
that for homicide (reclusin temporal), but applied to its maximum period.
Also, a generic aggravating circumstance may be offset by a generic
mitigating circumstance, while a qualifying aggravating circumstance cannot
be. 75
Hence, before the Cybercrime Prevention Act, libel even if committed
through ICT was punishable only by prisin correccional from its minimum
(6 months and 1 day to 2 years and 4 months) to its medium period (2 years,
4 months, and 1 day to 4 years and 2 months).
Under Section 6 however, the offender is now punished with a new range of
penalty prisin correccional in its maximum period (from 4 years, 2 months
and 1 day to 6 years) to prisin mayor in its minimum period (from 6 years
and 1 day to 8 years). And since the use of ICT as a qualifying aggravating
circumstance cannot be offset by any mitigating circumstance, such as
voluntary surrender, the penalty will remain within the new range of
penalties.cIaHDA

As previously discussed, qualifying aggravating circumstances, by

themselves, produce an in terrorem effect. A twofold increase in the
maximum penalty from 4 years and 2 months to 8 years for the use of
an otherwise beneficial and commonly used means of communication
undeniably creates a heavier invidious chilling effect.
The Court has the duty to restore
the balance and protect the
exercise of freedom of speech.
Undeniably, there may be substantial distinctions between ICT and other
means of committing libel that make ICT a more efficient and accessible
means of committing libel. However, it is that same efficiency and
accessibility that has made ICT an inextricable part of people's lives and an
effective and widely used tool for the exercise of freedom of speech, a
freedom that the Constitution protects and that this Court has a duty to
uphold.
Facial challenges have been entertained when, in the judgment of the Court,
the possibility that the freedom of speech may be muted and perceived
grievances left to fester outweighs the harm to society that may be brought
about by allowing some unprotected speech or conduct to go unpunished. 76
In the present case, it is not difficult to see how the increase of the penalty
under Section 6 mutes freedom of speech. It creates a domino effect that
effectively subjugates the exercise of the freedom longer prison terms,
harsher accessory penalties, loss of benefits under the Probation Law,
extended prescription periods, and ineligibility of these penalties to be offset
by mitigating circumstances. What this Court said in People v. Godoy, 77 about
"mankind's age-old observation" on capital punishment, is appropriate to the
penalty in the present case: "If it is justified, it serves as a deterrent; if
injudiciously imposed, it generates resentment." 78 Thus, I am of the opinion
that Section 6, as far as libel is concerned, is facially invalid.
B. Section 12 Real-Time Collection
of Traffic Data.
Real-time collection of traffic data may be indispensable to law enforcement
in certain instances. Also, traffic data per se may be examined by law
enforcers, since there is no privacy expectation in them. However, the
authority given to law enforcers must be circumscribed carefully so as to
safeguard the privacy of users of electronic communications. Hence, I
support the ponencia in finding the first paragraph of Section 12
unconstitutional because of its failure to provide for strong safeguards
against intrusive real-time collection of traffic data. I clarify, however,
that this declaration should not be interpreted to mean that Congress
is now prevented from going back to the drawing board in order to fix
the first paragraph of Section 12. Real-time collection of traffic data is
not invalid per se. There may be instances in which a warrantless real-
time collection of traffic data may be allowed when robust safeguards
against possible threats to privacy are provided. Nevertheless, I am of the
opinion that there is a need to explain why real-time collection of traffic data
may be vital at times, as well as to explain the nature of traffic data.
DAEaTS

Indispensability of Real-time
Collection of Traffic Data
In order to gain a contextual understanding of the provision under the
Cybercrime Prevention Act on the real-time collection of traffic data, it is
necessary to refer to the Budapest Convention on Cybercrime, which the
Philippine Government requested 79 to be invited to accede to in 2007. The
Cybercrime Prevention Act was patterned after this convention. 80
The Budapest Convention on Cybercrime is an important treaty, because it is
the first and only multinational agreement on cybercrime. 81 It came into
force on 1 July 2004 82 and, to date, has been signed by 45 member states of
the Council of Europe (COE), 36 of which have ratified the agreement. 83
Significantly, the COE is the leading human rights organization of Europe. 84
Moreover, two important non-member states or "partner countries" 85 have
likewise ratified it the United States on 29 September 2006 and Japan on 3
July 2012. Australia and the Dominican Republic have also joined by
accession. 86
The Convention "represents a comprehensive international response to the
problems of cybercrime" 87 and is the product of a long process of careful
expert studies and international consensus. From 1985 to 1989, the COE's
Select Committee of Experts on Computer-Related Crime debated issues
before drafting Recommendation 89(9). This Recommendation stressed the
need for a quick and adequate response to the cybercrime problems
emerging then and noted the need for an international consensus on
criminalizing specific computer-related offenses. 88 In 1995, the COE adopted
Recommendation No. R (95)13, which detailed principles addressing search
and seizure, technical surveillance, obligations to cooperate with the
investigating authorities, electronic evidence, and international cooperation.
89 In 1997, the new Committee of Experts on Crime in Cyberspace was
created to examine, "in light of Recommendations No R (89)9 and No R
(95)13," the problems of "cyberspace offenses and other substantive criminal
law issues where a common approach may be necessary for international
cooperation." It was also tasked with the drafting of "a binding legal
instrument" to deal with these issues. The preparation leading up to the
Convention entailed 27 drafts over four years. 90
As mentioned earlier, the Philippines was one of the countries that
requested to be invited to accede to this very important treaty in 2007, and
the Cybercrime Prevention Act was patterned after the convention. 91
Article 1 of the Budapest Convention on Cybercrime defines "traffic data" as
follows:
d. "traffic data" means any computer data relating to a
communication by means of a computer system, generated by
a computer system that formed a part in the chain of
communication, indicating the communication's origin,
destination, route, time, date, size, duration, or type of
underlying service.
Section 3 of the Cybercrime Prevention Act has a starkly similar definition of
"traffic data":
(p) Traffic data or non-content data refers to any computer data other
than the content of the communication including, but not limited
to, the communication's origin, destination, route, time, date, size,
duration, or type of underlying service.STIEHc

However, the definition in the Cybercrime Prevention Act improves on that of

the Convention by clearly restricting traffic data to those that are non-content
in nature. On top of that, Section 12 further restricts traffic data to exclude
those that refer to the identity of persons. The provision states:
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities. (Emphasis supplied)

Undoubtedly, these restrictions were made because Congress wanted to

ensure the protection of the privacy of users of electronic communication.
Congress must have also had in mind the 1965 Anti-Wiretapping Act, as well as
the Data Privacy Act which was passed only a month before the Cybercrime
Prevention Act. However, as will be shown later, the restrictive definition is not
coupled with an equally restrictive procedural safeguard. This deficiency is
the Achilles' heel of the provision.
One of the obligations under the Budapest Convention on Cybercrime is for
state parties to enact laws and adopt measures concerning the real-time
collection of traffic data, viz.:
Article 20. Real-time collection of traffic data.
1. Each Party shall adopt such legislative and other measures as may
be necessary to empower its competent authorities to:
 a. collect or record through the application of technical
means on the territory of that Party, and
b. compel a service provider, within its existing technical
capability: EcHTDI

i. to collect or record through the application of

technical means on the territory of that Party; or
ii. to co-operate and assist the competent
authorities in the collection or recording of,
traffic data, in real-time, associated with
specified communications in its territory
transmitted by means of a computer system.
2. Where a Party, due to the established principles of its
domestic legal system, cannot adopt the measures
referred to in paragraph 1.a, it may instead adopt
legislative and other measures as may be necessary to
ensure the real-time collection or recording of traffic data
associated with specified communications transmitted in
its territory, through the application of technical means on
that territory. aCTcDH

3. Each Party shall adopt such legislative and other measures as may
be necessary to oblige a service provider to keep
confidential the fact of the execution of any power
provided for in this article and any information relating to
it.
4. The powers and procedures referred to in this article shall be
subject to Articles 14 and 15. (Emphases supplied)
The Explanatory Report on the Budapest Convention on Cybercrime explains
the ephemeral and volatile nature of traffic data, which is the reason why it
has to be collected in real-time if it is to be useful in providing a crucial lead
to investigations of criminality online as follows: 92ITESAc

29. In case of an investigation of a criminal offence committed in

relation to a computer system, traffic data is needed to trace the
source of a communication as a starting point for collecting
further evidence or as part of the evidence of the offence.
Traffic data might last only ephemerally, which makes it
necessary to order its expeditious preservation. Consequently,
its rapid disclosure may be necessary to discern the
communication's route in order to collect further evidence
before it is deleted or to identify a suspect. The ordinary
procedure for the collection and disclosure of computer data
might therefore be insufficient. Moreover, the collection of this
data is regarded in principle to be less intrusive since as such it
doesn't reveal the content of the communication which is
regarded to be more sensitive.
xxx xxx xxx
133. One of the major challenges in combating crime in the
networked environment is the difficulty in identifying the
perpetrator and assessing the extent and impact of the
criminal act. A further problem is caused by the volatility of
electronic data, which may be altered, moved or deleted in
seconds. For example, a user who is in control of the data may
use the computer system to erase the data that is the subject
of a criminal investigation, thereby destroying the evidence.
Speed and, sometimes, secrecy are often vital for the success
of an investigation.
134. The Convention adapts traditional procedural measures, such
as search and seizure, to the new technological environment.
Additionally, new measures have been created, such as expedited
preservation of data, in order to ensure that traditional measures
of collection, such as search and seizure, remain effective in the
volatile technological environment. As data in the new
technological environment is not always static, but may be
flowing in the process of communication, other traditional
collection procedures relevant to telecommunications, such as
real-time collection of traffic data and interception of content
data, have also been adapted in order to permit the collection
of electronic data that is in the process of communication.
Some of these measures are set out in Council of Europe
Recommendation No. R (95) 13 on problems of criminal procedural
law connected with information technology. IHaSED

xxx xxx xxx

214. For some States, the offences established in the Convention
would normally not be considered serious enough to permit
interception of content data or, in some cases, even the collection
of traffic data. Nevertheless, such techniques are often crucial
for the investigation of some of the offences established in the
Convention, such as those involving illegal access to computer
systems, and distribution of viruses and child pornography.
The source of the intrusion or distribution, for example,
cannot be determined in some cases without real-time
collection of traffic data. In some cases, the nature of the
communication cannot be discovered without real-time
interception of content data. These offences, by their nature
or the means of transmission, involve the use of computer
technologies. The use of technological means should,
therefore, be permitted to investigate these offences. . . . .
xxx xxx xxx
216. Often, historical traffic data may no longer be available or
it may not be relevant as the intruder has changed the route
of communication. Therefore, the real-time collection of traffic
data is an important investigative measure. Article 20 addresses
the subject of real-time collection and recording of traffic data for
the purpose of specific criminal investigations or proceedings.SEcITC

xxx xxx xxx

218. . . . . When an illegal distribution of child pornography,
illegal access to a computer system or interference with the
proper functioning of the computer system or the integrity of
data, is committed, particularly from a distance such as
through the Internet, it is necessary and crucial to trace the
route of the communications back from the victim to the
perpetrator. Therefore, the ability to collect traffic data in
respect of computer communications is just as, if not more,
important as it is in respect of purely traditional
telecommunications. This investigative technique can correlate
the time, date and source and destination of the suspect's
communications with the time of the intrusions into the systems of
victims, identify other victims or show links with associates.
219. Under this article, the traffic data concerned must be
associated with specified communications in the territory of the
Party. The specified 'communications' are in the plural, as traffic
 data in respect of several communications may need to be
collected in order to determine the human source or destination
(for example, in a household where several different persons have
the use of the same telecommunications facilities, it may be
necessary to correlate several communications with the individuals'
opportunity to use the computer system). The communications in
respect of which the traffic data may be collected or recorded,
however, must be specified. Thus, the Convention does not
require or authorise the general or indiscriminate surveillance
and collection of large amounts of traffic data. It does not
authorise the situation of 'fishing expeditions' where criminal
activities are hopefully sought to be discovered, as opposed to
specific instances of criminality being investigated. The judicial
or other order authorising the collection must specify the
communications to which the collection of traffic data relates.
xxx xxx xxx
225. Like real-time interception of content data, real-time
collection of traffic data is only effective if undertaken without
the knowledge of the persons being investigated. Interception
is surreptitious and must be carried out in such a manner that
the communicating parties will not perceive the operation.
Service providers and their employees knowing about the
interception must, therefore, be under an obligation of secrecy
in order for the procedure to be undertaken effectively.
(Emphases supplied) SIcTAC

We can gather from the Explanatory Note that there are two seemingly
conflicting ideas before us that require careful balancing the fundamental
rights of individuals, on the one hand, and the interests of justice (which may
also involve the fundamental rights of another person) on the other. There is
no doubt that privacy is vital to the existence of a democratic society and
government such as ours. It is also critical to the operation of our economy.
Citizens, governments, and businesses should be able to deliberate and
make decisions in private, away from the inhibiting spotlight. 93 Certainly, this
privacy should be maintained in the electronic context as social,
governmental and economic transactions are made in this setting. 94 At the
same time however, law enforcers must be equipped with up-to-date tools
necessary to protect society and the economy from criminals who have also
taken advantage of electronic technology. These enforcers must be supplied
with investigative instruments to solve crimes and punish the criminals. 95
What is beyond debate, however, is that real-time collection of traffic
data may be absolutely necessary in criminal investigations such that,
without it, authorities may not be able to probe certain crimes at all. In
fact, it has been found that crucial electronic evidence may never be
stored at all, as it may exist only in transient communications. 96 The UN
Office on Drugs and Crime requires real-time collection of data because of
the urgency, sensitivity, or complexity of a law enforcement investigation. 97
Hence, it is imprudent to precipitately make (1) an absolute declaration
that all kinds of traffic data from all types of sources are protected by
the constitutional right to privacy; and (2) a blanket pronouncement
that the real-time collection thereof may only be conducted upon a
prior lawful order of the court to constitute a valid search and seizure.
Rather, the Court should impose a strict interpretation of Section 12 in
the light of existing constitutional, jurisprudential and statutory
guarantees and safeguards.
The Constitutional guarantee
against unreasonable search and
seizure is inviolable.
The inviolable right against unreasonable search and seizure is enshrined in
Article III of the Constitution, which states:
aTcSID

Section 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.

It is clear from the above that the constitutional guarantee does not prohibit
all searches and seizures, but only unreasonable ones. 98 As a general rule, a
search and seizure is reasonable when probable cause has been established.
Probable cause is the most restrictive of all thresholds. It has been broadly
defined as those facts and circumstances that would lead a reasonably
discreet and prudent man to believe that an offense has been committed,
and that the objects sought in connection with the offense are in the place
sought to be searched. 99 It has been characterized as referring to "factual
and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." 100 Furthermore, probable cause is to be
determined by a judge prior to allowing a search and seizure. The judge's
determination shall be contained in a warrant, which shall particularly
describe the place to be searched and the things to be seized. Thus, when no
warrant is issued, it is assumed that there is no probable cause to conduct
the search, making that act unreasonable. ISaTCD

For the constitutional guarantee to apply, however, there must first be a

search in the constitutional sense. 101 It is only when there is a search that a
determination of probable cause is required. In Valmonte v. De Villa, the Court
said that the constitutional rule cannot be applied when mere routine checks
consisting of "a brief question or two" are involved. 102 The Court said that if
neither the vehicle nor its occupants are subjected to a search the
inspection of the vehicle being limited to a visual search there is no
violation of an individual's right against unreasonable searches and seizures.
Hence, for as long as there is no physical intrusion upon a constitutionally
protected area, there is no search. 103 EHTSCD

In recent years, the Court has had occasion to rule 104 that a search occurs
when the government violates a person's "reasonable expectation of
privacy," a doctrine first enunciated in Katz v. United States. 105 Katz signalled a
paradigm shift, as the inquiry into the application of the constitutional
guarantee was now expanded beyond "the presence or absence of a physical
intrusion into any given enclosure" and deemed to "[protect] people, not
places." 106 Under this expanded paradigm, the "reasonable expectation of
privacy" can be established if the person claiming it can show that (1) by his
conduct, he exhibited an expectation of privacy and (2) his expectation is one
that society recognizes as reasonable. In People v. Johnson, 107 which cited
Katz, the seizure and admissibility of the dangerous drugs found during a
routine airport inspection were upheld by the Court, which explained that
"[p]ersons may lose the protection of the search and seizure clause by
exposure of their persons or property to the public in a manner reflecting a
lack of subjective expectation of privacy, which expectation society is
prepared to recognize as reasonable." 108 EScAID

Traffic data per se do not enjoy

privacy protection; hence, no
determination of probable cause
is needed for the real-time
collection thereof.
The very public structure of the Internet and the nature of traffic data per se
undermine any reasonable expectation of privacy in the latter. The Internet is
custom-designed to frustrate claims of reasonable expectation of privacy in
traffic data per se, since the latter are necessarily disclosed to the public in
the process of communication. DTEAHI

Individuals have no legitimate expectation of privacy in the data they disclose

to the public and should take the risks for that disclosure. This is the holding
of the U.S. Supreme Court in Smith v. Maryland. 109 The 1979 case, which has
stood the test of time and has been consistently applied by American courts
in various communications cases including recent ones in the electronic
setting arose from a police investigation of robbery. The woman who was
robbed gave the police a description of the robber and of a car she had
observed near the scene of the crime. After the robbery, she began receiving
threatening phone calls from a man identifying himself as the robber. The
car was later found to be registered in the name of the petitioner, Smith. The
next day, the telephone company, upon police request, installed a pen
register at its central offices to record the numbers dialled from the
telephone at the home of Smith. The register showed that he had indeed
been calling the victim's house. However, since the installation of the pen
register was done without a warrant, he moved to suppress the evidence
culled from the device. In affirming the warrantless collection and
recording of phone numbers dialled by Smith, the U.S. Supreme Court
said:
This claim must be rejected. First, we doubt that people in general
entertain any actual expectation of privacy in the numbers they dial.
All telephone users realize that they must "convey" phone
numbers to the telephone company, since it is through
telephone company switching equipment that their calls are
 completed. All subscribers realize, moreover, that the phone
company has facilities for making permanent records of the
numbers they dial, for they see a list of their long-distance (toll)
calls on their monthly bills. . . . .
xxx xxx xxx
Second, even if petitioner did harbor some subjective
expectation that the phone numbers he dialed would remain
private, this expectation is not "one that society is prepared to
recognize as 'reasonable.'" Katz v. United States, 389 U.S., at 361.
This Court consistently has held that a person has no legitimate
expectation of privacy in information he voluntarily turns over
to third parties. E.g., United States v. Miller, 425 U.S., at 442-444; . . . .
110 (Emphases supplied) cSATEH

I am of the opinion that this Court may find the ruling in United States v.
Forrester, 111 persuasive. In that case, the U.S. 9th Circuit Court of Appeals
applied the doctrine in Smith to electronic communications, and ruled that
Internet users have no expectation of privacy in the to/from addresses of
their messages or in the IP addresses of the websites they visit. According to
the decision, users should know that these bits of information are provided
to and used by Internet service providers for the specific purpose of directing
the routing of information. It then emphasized that this examination of
traffic data is "conceptually indistinguishable from government
surveillance of physical mail," and that the warrantless search of
envelope or routing information has been deemed valid as early as the
19th century. The court therein held: TICaEc

We conclude that the [electronic] surveillance techniques the

government employed here are constitutionally
indistinguishable from the use of a pen register that the Court
approved in Smith. First, e-mail and Internet users, like the
telephone users in Smith, rely on third-party equipment in order to
engage in communication. Smith based its holding that telephone
users have no expectation of privacy in the numbers they dial on the
users' imputed knowledge that their calls are completed through
telephone company switching equipment. . . . . Analogously, e-mail
and Internet users have no expectation of privacy in the to/from
addresses of their messages or the IP addresses of the websites
they visit because they should know that this information is
provided to and used by Internet service providers for the
specific purpose of directing the routing of information. Like
telephone numbers, which provide instructions to the
"switching equipment that processed those numbers," e-mail
to/from addresses and IP addresses are not merely passively
conveyed through third party equipment, but rather are
voluntarily turned over in order to direct the third party's
servers. . . . .
Second, e-mail to/from addresses and IP addresses constitute
addressing information and do not necessarily reveal any more
about the underlying contents of communication than do phone
numbers. When the government obtains the to/from addresses
of a person's e-mails or the IP addresses of websites visited, it
does not find out the contents of the messages or know the
particular pages on the websites the person viewed. At best, the
government may make educated guesses about what was said in the
messages or viewed on the websites based on its knowledge of the
e-mail to/from addresses and IP addresses but this is no different
from speculation about the contents of a phone conversation on the
basis of the identity of the person or entity that was dialed. . . . .
Nonetheless, the Court in Smith and Katz drew a clear line
between unprotected addressing information and protected
content information that the government did not cross here. DHcSIT

The government's surveillance of e-mail addresses also may be

technologically sophisticated, but it is conceptually
indistinguishable from government surveillance of physical
mail. In a line of cases dating back to the nineteenth century,
the Supreme Court has held that the government cannot engage
in a warrantless search of the contents of sealed mail, but can
observe whatever information people put on the outside of
mail, because that information is voluntarily transmitted to
third parties. . . . . E-mail, like physical mail, has an outside address
"visible" to the third-party carriers that transmit it to its intended
location, and also a package of content that the sender presumes will
be read only by the intended recipient. The privacy interests in
these two forms of communication are identical. The contents
may deserve Fourth Amendment protection, but the address
 and size of the package do not. 112 (Emphases and underscoring
supplied)

Based on the cogent logic explained above, I share the view that Internet
users have no reasonable expectation of privacy in traffic data per se or in
those pieces of information that users necessarily provide to the ISP, a third
party, in order for their communication to be transmitted. This position is
further bolstered by the fact that such communication passes through as
many ISPs as needed in order to reach its intended destination. Thus, the
collection and recording of these data do not constitute a search in the
constitutional sense. As such, the collection thereof may be done without the
necessity of a warrant.EHaDIC

Indeed, Professor Orin Kerr, 113 a prominent authority on electronic privacy,

observes that in the U.S., statutory rather than constitutional protections
provide the essential rules governing Internet surveillance law. He
explains that the very nature of the Internet requires the disclosure of
non-content information, not only to the ISP contracted by the user, but
also to other computers in order for the communication to reach the
intended recipient. Professor Kerr explains thus:
Recall that the Fourth Amendment effectively carves out private
spaces where law enforcement can't ordinarily go without a
warrant and separates them from public spaces where it can.
One important corollary of this structure is that when a person
sends out property or information from her private space into a
public space, the exposure to the public space generally
eliminates the Fourth Amendment protection. If you put your
trash bags out on the public street, or leave your private documents
in a public park, the police can inspect them without any Fourth
Amendment restrictions.
The Supreme Court's cases interpreting this so-called "disclosure
principle" have indicated that the principle is surprisingly broad.
For example, the exposure need not be to the public. Merely
sharing the information or property with another person allows
the government to go to that person to obtain it without Fourth
Amendment protection. . . . . DTcACa

Why does this matter to Internet surveillance? It matters because the

basic design of the Internet harnesses the disclosure, sharing,
 and exposure of information to many machines connected to
the network. The Internet seems almost custom-designed to
frustrate claims of broad Fourth Amendment protection: the
Fourth Amendment does not protect information that has been
disclosed to third-parties, and the Internet works by disclosing
information to third-parties. Consider what happens when an
Internet user sends an e-mail. By pressing "send" on the user's e-
mail program, the user sends the message to her ISP, disclosing it to
the ISP, with instructions to deliver it to the destination. The ISP
computer looks at the e-mail, copies it, and then sends a copy
across the Internet where it is seen by many other computers
before it reaches the recipient's ISP. The copy sits on the ISP's
server until the recipient requests the e-mail; at that point, the ISP
runs off a copy and sends it to the recipient. While the e-mail may
seem like a postal mail, it is sent more like a post card, exposed
during the course of delivery. 114 (Emphases and underscoring
supplied.)DAEIHT

Clearly, considering that the Internet highway is so public, and that non-
content traffic data, unlike content data, are necessarily exposed as they
pass through the Internet before reaching the recipient, there cannot be any
reasonable expectation of privacy in non-content traffic data per se.
Traffic data to be collected are
explicitly limited to non-content
and non-identifying public
information which, unlike content
data, are not constitutionally
protected.
The U.S. Supreme Court and Court of Appeals in the above cases emphasized
the distinction between content and non-content data, with only content
data enjoying privacy protection. In Smith the Court approved of the use of
pen registers, pointing out that "a pen register differs significantly from [a]
listening device . . . for pen registers do not acquire the contents of
communications." 115 Hence, the information derived from the pen register,
being non-content, is not covered by the constitutional protection. In
Forrester, it was held that while the content of both e-mail and traditional
mail are constitutionally protected, the non-content or envelope
information is not. On the other hand, in the 2007 case Warshak v. United
States, 116 the Sixth Circuit Court of Appeals held that the contents of emails
are protected. It employed the content/non-content distinction in saying that
the "combined precedents of Katz and Smith" required a "heightened
protection for the content of the communications." 117 Consequently, it found
a strong "content-based privacy interest" in e-mails. 118 aCITEH

Traffic data are of course explicitly restricted to non-content and non-

identifying data as defined in Section 12 of the Cybercrime Prevention
Act itself. As such, it is plain that traffic data per se are not
constitutionally protected.
The distinction between content and non-content data, such as traffic
data, is important because it keeps the balance between protecting
privacy and maintaining public order through effective law
enforcement. That is why our Congress made sure to specify that the traffic
data to be collected are limited to non-content data. For good measure, it
additionally mandated that traffic data be non-identifying.
Kerr explains how the distinction between content and non-content
information in electronic communication mirrors perfectly and logically the
established inside and outside distinction in physical space, as far as
delineating the investigative limitations of law enforcers is concerned. Inside
space is constitutionally protected, and intrusion upon it requires a court
warrant; in contrast, surveillance of outside space does not require a warrant
because it is not a constitutionally cognizable search. He explains thus:
Whereas the inside/outside distinction is basic to physical world
investigations, the content/non-content distinction is basic to
investigations occurring over communications networks.
Communications networks are tools that allow their users to send
and receive communications from other users and services that are
also connected to the network. This role requires a distinction
between addressing information and contents. The addressing (or
"envelope") information is the data that the network uses to deliver
the communications to or from the user; the content information is
the payload that the user sends or receives.
CHDAaS

xxx xxx xxx

We can see the same distinctions at work with the telephone
network. The telephone network permits users to send and receive
live phone calls. The addressing information is the number dialed
("to"), the originating number ("from"), the time of the call, and its
duration. Unlike the case of letters, this calling information is not
visible in the same way that the envelope of a letter is. At the same
time, it is similar to the information derived from the envelope of a
letter. In contrast, the contents are the call itself, the sound sent from
the caller's microphone to the receiver's speaker and from the
receiver's microphone back to the caller's speaker.
Drawing the content/non-content distinction is somewhat more
complicated because the Internet is multifunctional. . . . . Still, the
content/non-content distinction holds in the Internet context as well.
The easiest cases are human-to-human communications like e-mail
and instant messages. The addressing information is the "to" and
"from" e-mail address, the instant message to and from account
names, and the other administrative information the computers
generate in the course of delivery. As in the case of letters and phone
calls, the addressing information is the information that the network
uses to deliver the message. In contrast, the actual message itself is
the content of the communication. SCHIcT

xxx xxx xxx

The content/non-content distinction provides a natural
replacement for the inside/outside distinction. To apply the
Fourth Amendment to the Internet in a technologically neutral
way, access to the contents of communications should be
treated like access to evidence located inside. Accessing the
contents of communications should ordinarily be a search. In
contrast, access to non-content information should be treated
like access to evidence found outside. Collection of this
information should presumptively not be a search.
This translation is accurate because the distinction between
content and non-content information serves the same function
online that the inside/outside distinction serves in the physical
world. Non-content information is analogous to outside
information; it concerns where a person is and where a person
is going. Consider what the police can learn by watching a suspect in
public. Investigating officers can watch the suspect leave home and
go to different places. They can watch him go to lunch, go to work,
and go to the park; they can watch him drive home; and they can
watch him park the car and go inside. In effect, this is to/from
information about the person's own whereabouts.
On the other hand, content information is analogous to inside
information. The contents of communications reveal the
substance of our thinking when we assume no one else is
around. It is the space for reflection and self-expression when
we take steps to limit the audience to a specific person or even
just to ourselves. The contents of Internet communications are
designed to be hidden from those other than the recipients,
much like property stored inside a home is hidden from those
who do not live with us. . . . .
The connection between content/non-content on the Internet
and inside/outside in the physical world is not a coincidence.
Addressing information is itself a network substitute for outside
information, and contents are a network substitute for inside
information. Recall the basic function of communications
networks: they are systems that send and receive
communications remotely so that its users do not have to
deliver or pick up the communications themselves. The non-
content information is the information the network uses to
deliver communications, consisting of where the
communication originated, where it must be delivered, and in
some cases the path of delivery. This information is generated
in lieu of what would occur in public; it is information about the
path and timing of delivery. In contrast, the contents are the
private communications themselves that would have been
inside in a physical network. cTDECH

xxx xxx xxx

In light of this, a technologically neutral way to translate the
Fourth Amendment from the physical world to the Internet
would be to treat government collection of the contents of
communications as analogous to the government collection of
information inside and the collection of non-content
 information as analogous to the collection of information
outside. . . . .
HSTAcI

This approach would mirror the line that the Fourth

Amendment imposes in the physical world. In the physical
world, the inside/outside distinction strikes a sensible balance.
It generally lets the government observe where people go, when
they go, and to whom they are communicating while protecting
the actual substance of their speech from government
observation without a warrant unless the speech is made in a
setting open to the public. The content/non-content distinction
preserves that function. It generally lets the government
observe where people go in a virtual sense, and to observe when
and with whom communications occur. The essentially
transactional information that would occur in public in a physical
world has been replaced by non-content information in a network
environment, and the content/non-content line preserves that
treatment. At the same time, the distinction permits individuals to
communicate with others in ways that keep the government at bay.
The Fourth Amendment ends up respecting private areas where
people can share their most private thoughts without government
interference both in physical space and cyberspace alike. 119
(Emphases supplied.)

Indeed, there is a clear distinction between content and non-content data.

The distinction presents a reasonable conciliation between privacy
guarantees and law enforcement needs, since the distinction proceeds from
logical differences between the two in their nature and privacy expectations.
According to a comprehensive UN study on six international or regional
cybercrime instruments, 120 which include provisions on real-time collection
of computer data, these instruments "make a distinction between real-time
collection of traffic data and of content data" to account for the "differences
in the level of intrusiveness into the private life of persons subject to each of
the measures." 121 TAcDHS

From the above jurisprudence and scholarly analysis, there is enough basis
to conclude that, given the very public nature of the Internet and the nature
of traffic data as non-content and non-identifying information, individuals
cannot have legitimate expectations of privacy in traffic data per se.
 Section 12, however, suffers from
lack of procedural safeguards to
ensure that the traffic data to be
obtained are limited to non-
content and non-identifying data,
and that they are obtained only
for the limited purpose of
investigating specific instances of
criminality.
Thus far, it has been shown that real-time collection of traffic data may be
indispensable in providing a crucial first lead in the investigation of
criminality. Also, it has been explained that there is clearly no legitimate
expectation of privacy in traffic data per se because of the nature of the
Internet it requires disclosure of traffic data which, unlike content data,
will then travel exposed as it passes through a very public communications
highway. It has also been shown that the definition of traffic data under the
law is sufficiently circumscribed to cover only non-content and non-
identifying data and to explicitly exclude content data. This distinction is
important in protecting privacy guarantees while supporting law
enforcement needs. ASIETa

However, Section 12 suffers from a serious deficiency. The narrow definition

of traffic data per se as non-content and non-identifying data is not
supported by equally narrow procedural criteria for the exercise of the
authority to obtain them. The government asserts that Section 12 provides
for some protection against abuse. While this may be true, the safeguards
provided are not sufficient to protect constitutional guarantees.
Firstly, the provision does not indicate what the purpose of the collection
would be, since it only provides for "due cause" as a trigger for undertaking
the activity. While the government has explained the limited purpose of the
collection of traffic data, which purportedly can only go as far as providing an
initial lead to an ongoing criminal investigation primarily in the form of an IP
address, this limited purpose is not explicit in the assailed provision.
Moreover, there is no assurance that the collected traffic data would not be
used for preventive purposes as well. Notably, the Solicitor-General defines
"due cause" as "good faith law enforcement reason" 122 or "when there's a
complaint from a citizen that cybercrime has been committed." According to
the Solicitor General this situation is "enough to trigger" a collection of traffic
data. 123 However, during the oral arguments, the Solicitor General
prevaricated on whether Section 12 could also be used for preventive
monitoring. He said that there might be that possibility, although the
purpose would "largely" be for the investigation of an existing criminal act.
124 This vagueness is disconcerting, since a preventive monitoring would
necessarily entail casting a wider net than an investigation of a specific
instance of criminality would. Preventive monitoring would correspondingly
need more restrictive procedural safeguards. This failure to provide an
unequivocally specified purpose is fatal because it would give the
government the roving authority to obtain traffic data for any purpose. 125
Secondly, Section 12 does not indicate who will determine "due cause." This
failure to assign the determination of due cause to a specific and
independent entity opens the floodgates to possible abuse of the authority
to collect traffic data in real-time, since the measure will be undertaken
virtually unchecked. Also, while Section 12 contemplates the collection only
of data "associated with specified communications," it does not indicate who
will make the specification and how specific it will be.
Finally, the collection of traffic data under Section 12 is not time-bound. This
lack of limitation on the period of collection undoubtedly raises concerns
about the possibility of unlimited collection of traffic data in bulk for
purposes beyond the simple investigation of specific instances of criminality.
CcaDHT

Existing approaches in other

jurisdictions for collection of
traffic data
To foreclose an Orwellian collection of traffic data in bulk that may lead to
the invasion of privacy, the relevant law must be canalized to accommodate
only an acceptable degree of discretion to law enforcers. It must provide for
clear parameters and robust safeguards for the exercise of the authority.
Notably, the Solicitor General himself has observed that stronger safeguards
against abuse by law enforcers may have to be put in place. 126 There are
also indications that the legislature is willing to modify the law to provide for
stronger safeguards, as shown in the bills filed in both chambers of
Congress. 127
In fashioning procedural safeguards against invasion of privacy, the rule of
thumb should be: the more intrusive the activity, the stricter the procedural
safeguards. Other countries have put in place some restrictions on the real-
time collection of traffic data in their jurisdictions. In the United States, the
following are the requirements for the exercise of this authority:
(1) relevance of the collected information to an ongoing criminal
investigation;
(2) court order issued by a judicial officer based upon the
certification of a government attorney; and
(3) limitation of the period of collection to sixty days (with the
possibility of extension).

In the United Kingdom, the following requirements must be complied with:

DcSTaC

(1) necessity of the information to be collected for the

investigation of crime, protection of public safety, or a similar goal;
(2) approval of a high-level government official;
(3) proportionality of the collection to what is sought to be
achieved; and
(4) limitation of the period of collection to thirty days. 128

The above requirements laid down by two different jurisdictions offer

different but similar formulations. As to what the triggering threshold or
purpose would be, it could be the necessity threshold (for the investigation of
crime, protection of public safety, or a similar goal) used in the United
Kingdom or the relevance threshold (to an ongoing criminal investigation) in
the United States. Note that these thresholds do not amount to probable
cause. IcDCaS

As to who determines compliance with the legal threshold that triggers the
exercise of the authority to collect traffic data in real time, the laws of the
United States suggest that special judicial intervention is required. This
intervention would be a very strong measure against the violation of privacy
even if the judicial order does not require determination of probable cause.
At the same time, however, the general concern of Justice Brion that "time is
of the utmost essence in cyber crime law enforcement" needs to be
considered. Hence, procedural rules of court will have to be adjusted so as
not to unduly slow down law enforcement response to criminality
considering how ephemeral some information could be. We must ensure
that these rules are not out of step with the needs of law enforcement, given
current technology. It may be noted that Justice Carpio has broached the
idea of creating 24-hour courts to address the need for speedy law
enforcement response. 129
In the United Kingdom, the mechanism suggests that the authorizing entity
need not be a judge, as it could be a high-ranking government official.
Perhaps this non-judicial authorization proceeds from the consideration that
since the triggering threshold is not probable cause, but only necessity to an
ongoing criminal investigation, there is no need for a judicial determination
of compliance with the aforesaid threshold. cSATEH

The above requirements also provide limits on the period of collection of

traffic data. In the United States, the limit is 60 days with a possibility of
extension. This period and the possibility of extension are similar to those
provided under our Anti-Wiretapping Law. Note, however, that the Anti-
Wiretapping Law concerns the content of communications whereas the
traffic data to be collected under Section 12 of the Cybercrime Prevention Act
is limited to non-content and non-identifying data. Hence, the restriction on
the period of collection could perhaps be eased by extending it to a longer
period in the case of the latter type of data. In the United Kingdom, the limit
is 30 days.
From the above observation of the deficiencies of Section 12, as well as the
samples from other jurisdictions, the following general guidelines could be
considered to strengthen the safeguards against possible abuse.
First, the relevance or necessity of the collection of traffic data to an
ongoing criminal investigation must be established. This requirement to
specify the purpose of the collection (to aid ongoing criminal investigation)
will have the effect of limiting the usage of the collected traffic data to
exclude dossier building, profiling and other purposes not explicitly
sanctioned by the law. It will clarify that the intention for the collection of
traffic data is not to create a historical data base for a comprehensive
analysis of the personal life of an individual whose traffic data is collected,
but only for investigation of specific instances of criminality. More important,
it is not enough that there be an ongoing criminal investigation; the real-time
collection must be shown to be necessary or at least relevant to the
investigation. Finally, it should be explicitly stated that the examination of
traffic data will not be for the purpose of preventive monitoring which, as
observed earlier, would necessarily entail a greater scope than that involved
in a targeted collection of traffic data for the investigation of a specific
criminal act.
Second, there must be an independent authority judicial or
otherwise who shall review compliance with the relevance and
necessity threshold. The designation of this authority will provide additional
assurance that the activity will be employed only in specific instances of
criminal investigation and will be necessary or relevant. The designation of
an authorizing entity will also inhibit the unjustified use of real-time
collection of traffic data. The position of this person should be sufficiently
high to ensure greater accountability. For instance, it was suggested during
the oral arguments that the authorizing person be a lawyer of the national
government in order to additionally strengthen that person's accountability,
proceeding as it would from his being an officer of the court. 130
Third, there must be a limitation on the period of collection. The
restriction on the time period will further prevent the indiscriminate and bulk
collection of traffic data beyond what is necessary for a regular criminal
investigation.TIHDAa

As to the type of technology to be used for collection, it seems that this

cannot be specified beforehand. Certainly, only a general restriction can be
made that the technology should be capable of collecting only non-
content and non-identifying traffic data. It should not be able to directly point
to the location of the users of the Internet, the websites visited, the search
words used, or any other data that reveal the thoughts of the user.
In the end, whatever mechanism is to be set in place must satisfy the
Constitution's requirements for the safeguard of the people's right to privacy
and against undue incursions on their liberties. CacTSI
 Final Words
Laws and jurisprudence should be able to keep current with the exponential
growth in information technology. 131 The challenge is acute, because the
rapid progress of technology has opened up new avenues of criminality.
Understandably, governments try to keep pace and pursue criminal
elements that use new technological avenues. It is precisely during these
times of zeal that the Court must be ever ready to perform its duty to uphold
fundamental rights when a proper case is brought before it.
The Court has carefully trod through the issues that have been heard in
these Petitions, especially since they involve the exercise of our power of
judicial review over acts of the legislature. I believe that we have tried to
exercise utmost judicial restraint and approached the case as narrowly as we
could so as to avoid setting sweeping and overreaching precedents. 132 We
have thus prudently resolved the present Petitions with the view in mind that
a future re-examination of the law is still possible, 133 especially when the
constitutional challenges set forth become truly ripe for adjudication. This is
also so that we do not unduly tie the hands of the government when it
regulates socially harmful conduct in the light of sudden changes in
technology, especially since the regulation is meant to protect the very same
fundamental rights that petitioners are asking this Court to uphold.
However, we have also not hesitated to strike down as unconstitutional
those regulatory provisions that clearly transgress the Constitution and upset
the balance between the State's inherent police power and the citizen's
fundamental rights. After all, the lofty purpose of police power is to be at the
loyal service of personal freedom.
WHEREFORE, I join theponencia in resolving to leave the determination of the
correct application of Section 7 to actual cases, except as it is applied to libel.
Charging an offender both under Section 4 (c) (4) of the Cybercrime Prevention
Act and under Article 353 of the Revised Penal Code violates the guarantee
against double jeopardy and is VOID and UNCONSTITUTIONAL for that
reason.
Moreover, I join in declaring the following as UNCONSTITUTIONAL: aEHADT
 1. Section 4 (c) (4), insofar as it creates criminal liability on the
part of persons who receive a libelous post and merely
react to it;
2. Section 12, insofar as it fails to provide proper safeguards for
the exercise of the authority to collect traffic data in real
time;
3. Section 19, also insofar as it fails to provide proper standards
for the exercise of the authority to restrict or block access
to computer data.
However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it
applies to Section 4 (c) (4), for unduly curtailing freedom of speech.
As regards the remaining assailed provisions, I vote to DISMISS the Petitions
for failure to establish that a pre-enforcement judicial review is warranted at
this time.

CARPIO, J., concurring and dissenting:

[C]orporations of all shapes and sizes track what you buy, store and
analyze our data, and use it for commercial purposes; that's how those
targeted ads pop up on your computer or smartphone. But all of us
understand that the standards for government surveillance must be
higher. Given the unique power of the state, it is not enough for leaders
to say: trust us, we won't abuse the data we collect. For history has too
many examples when that trust has been breached. Our system of
government is built on the premise that our liberty cannot depend
on the good intentions of those in power; it depends upon the law
to constrain those in power. 1
President Barack Obama
17 January 2014, on National
Security Agency Reforms

I concur in striking down as unconstitutional Section 4 (c) (3), Section 7,

Section 12, and Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing
unsolicited commercial speech; (2) allowing multiple prosecutions post-
conviction under RA 10175; (3) authorizing the warrantless collection in bulk
of traffic data; and (4) authorizing the extrajudicial restriction or blocking of
access to computer data, respectively, for being violative of the Free Speech,
Search and Seizure, Privacy of Communication, and Double Jeopardy Clauses.
I dissent, however, from the conclusion that (1) Article 354 of the Revised
Penal Code (Code) creating the presumption of malice in defamatory
imputations, and (2) Section 4 (c) (1) of RA 10175 penalizing "cybersex," are
not equally violative of the constitutional guarantees of freedom of speech
and expression. I therefore vote to declare Article 354 of the Code, as far as it
applies to public officers and public figures, and Section 4 (c) (1) of RA 10175,
unconstitutional for violating Section 4, Article III of the Constitution. ESCTIA

Article 354 of the Code Repugnant to

the Free Speech Clause
Article 354's Presumption of Malice
Irreconcilable with Free Speech Jurisprudence
On Libel of Public Officers and Public
Figures
Article 4 (c) (4) of RA 10175 impliedly re-adopts Article 354 of the Code
without any qualification. Article 354 took effect three years 2 before the
ratification of the 1935 Constitution that embodied the Free Speech Clause. 3
Unlike most of the provisions of the Code which are derived from the
Spanish Penal Code of 1870, Article 354 is based on legislation 4 passed by
the Philippine Commission during the American occupation. Nevertheless,
Article 354 is inconsistent with norms on free speech and free expression
now prevailing in both American and Philippine constitutional jurisprudence.
Article 354 provides as follows:
Requirement for publicity. Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by
 public officers in the exercise of their functions. (Italicization
supplied)

While the text of Article 354 has remained intact since the Code's
enactment in 1930, constitutional rights have rapidly expanded since the
latter half of the last century, owing to expansive judicial interpretations of
broadly worded constitutional guarantees such as the Free Speech Clause.
Inevitably, judicial doctrines crafted by the U.S. Supreme Court protective
of the rights to free speech, free expression and free press found their
way into local jurisprudence, adopted by this Court as authoritative
interpretation of the Free Speech Clause in the Philippine Bill of Rights.
One such doctrine is the New York Times actual malice rule, named after
the 1964 case in which it was crafted, New York Times v. Sullivan. 5
New York Times broadened the mantle of protection accorded to
communicative freedoms by holding that the "central meaning" of the Free
Speech Clause is the protection of citizens who criticize official conduct even
if such criticism is defamatory and false. True, the defamed public official may
still recover damages for libel. However, as precondition for such recovery,
New York Times laid down a formidable evidentiary burden 6 the public
official must prove that the false defamatory statement was made "with
actual malice that is, with knowledge that it was false or with reckless
disregard of whether it was false or not." 7CDScaT

The broad protection New York Times extended to communicative rights of

citizens and the press vis- -vis the conduct of public officials was grounded
on the theory that "unfettered interchange of ideas for the bringing about of
political and social changes desired by the people" 8 is indispensable in
perfecting the experiment of self-governance. As for erroneous statements,
the ruling considered them "inevitable in free debate, and that [they] must
be protected if the freedoms of expression are to have the 'breathing space'
that they need . . . to survive." 9 The actual malice doctrine was later made
applicable to public figures. 10
Six years after New York Times became U.S. federal law in 1964, this Court
took note of the actual malice doctrine as part of a trend of local and foreign
jurisprudence enlarging the protection of the press under the Free Speech
Clause. 11 Since then, the Court has issued a steady stream of decisions
applying New York Times as controlling doctrine to dismiss civil 12 and criminal
13 libel complaints filed by public officers or public figures. As Justice
Teehankee aptly noted:
The Court has long adopted the criterion set forth in the U.S.
benchmark case of New York Times Co. vs. Sullivan that "libel can claim
no talismanic immunity from constitutional limitations" that protect
the preferred freedoms of speech and press. Sullivan laid down the
test of actual malice, viz. "(T)he constitutional guaranty of freedom of
speech and press prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice' that is, with
knowledge that it was false or with reckless disregard of whether it
was false or not." . . . . 14
cIaHDA

Indeed, just as the actual malice doctrine is enshrined in the U.S. First
Amendment jurisprudence, it too has become interwoven into our own
understanding of the Free Speech Clause of the Philippine Bill of Rights of
the 1973 and 1987 Constitutions. 15
The actual malice rule enunciates three principles, namely:
1) Malice is not presumed even in factually false and defamatory
statements against public officers and public figures; it
must be proven as a fact for civil and criminal liability to
lie;
2) Report on official proceedings or conduct of an officer may
contain fair comment, including factually erroneous and
libelous criticism; and
3) Truth or lack of reckless disregard for the truth or falsity of a
defamatory statement is an absolute defense against
public officers and public figures.
In contrast, Article 354, in relation to Article 361 and Article 362 of the
Code, operates on the following principles:
1) Malice is presumed in every defamatory imputation, even if
true (unless good intention and justifiable motives are
shown);
 2) Report on official proceedings or conduct of an officer must
be made without comment or remarks, or, alternatively,
must be made without malice; 16 and SDATEc

3) In defamatory allegations made against a public official, truth

is a defense only if the imputed act or omission constitutes a
crime or if the imputed act or omission relates to official
duties. 17
The actual malice rule and Article 354 of the Code impose contradictory
rules on (1) the necessity of proof of malice in defamatory imputations
involving public proceedings or conduct of a public officer or public figure;
and (2) the availability of truth as a defense in defamatory imputations
against public officials or public figures. The former requires proof of
malice and allows truth as a defense unqualifiedly, while the latter
presumes malice and allows truth as a defense selectively. The
repugnancy between the actual malice rule and Article 354 is clear,
direct and absolute.
Nonetheless, the Office of the Solicitor General (OSG) argues for the
retention of Article 354 in the Code, suggesting that the Court can employ a
"limiting construction" of the provision to reconcile it with the actual malice
rule. 18 The ponencia appears to agree, holding that the actual malice rule
"impl[ies] a stricter standard of 'malice' . . . where the offended party is a
[public officer or] public figure," the "penal code and, implicitly, the
cybercrime law mainly target libel against private persons." 19
Allowing a criminal statutory provision clearly repugnant to the Constitution,
and directly attacked for such repugnancy, to nevertheless remain in the
statute books is a gross constitutional anomaly which, if tolerated, weakens
the foundation of constitutionalism in this country. "The Constitution is either
a superior, paramount law, . . . or it is on a level with ordinary legislative
acts," 20 and if it is superior, as we have professed ever since the Philippines
operated under a Constitution, then "a law repugnant to the Constitution is
void." 21cACEHI

Neither does the ponencia's claim that Article 354 (and the other provisions in
the Code penalizing libel) "mainly target libel against private persons" furnish
justification to let Article 354 stand. First, it is grossly incorrect to say that
Article 354 "mainly target[s] libel against private persons." Article 354
expressly makes reference to news reports of "any judicial, legislative or
other official proceedings" which necessarily involve public officers as
principal targets of libel. Second, the proposition that this Court ought to
refrain from exercising its power of judicial review because a law is
constitutional when applied to one class of persons but unconstitutional
when applied to another class is fraught with mischief. It stops this Court
from performing its duty, 22 as the highest court of the land, to "say what the
law is" whenever a law is attacked as repugnant to the Constitution. Indeed,
it is not only the power but also the duty of the Court to declare such law
unconstitutional as to one class, and constitutional as to another, if valid and
substantial class distinctions are present. HEASaC

Undoubtedly, there is a direct and absolute repugnancy between Article 354,

on one hand, and the actual malice rule under the Free Speech Clause, on
the other hand. Section 4 (c) (4) of RA 10175 impliedly re-adopts Article 354
without qualification, giving rise to a clear and direct conflict between the re-
adopted Article 354 and the Free Speech Clause based on prevailing
jurisprudence. It now becomes imperative for this Court to strike down
Article 354, insofar as it applies to public officers and public figures.
The ramifications of thus striking down Article 354 are: (1) for cases filed by
public officers or public figures, civil or criminal liability will lie only if the
complainants prove, through the relevant quantum of proof, that the
respondent made the false defamatory imputation with actual malice, that is,
with knowledge that it was false or with reckless disregard of whether it was
false or not; and (2) for cases filed by private individuals, the respondent
cannot raise truth as a defense to avoid liability if there is no good intention
and justifiable motive.
Section 4 (c) (1) Fails Strict Scrutiny
Section 4 (c) (1) which provides:
Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses:
 (1) Cybersex. The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system,
for favor or consideration.

is attacked by petitioners as unconstitutionally overbroad. Petitioners in

G.R. No. 203378 contend that Section 4 (c) (1) sweeps in protected online
speech such as "works of art that depict sexual activities" which museums
make accessible to the public for a fee. 23 Similarly, the petitioner in G.R.
No. 203359, joining causes with the petitioner in G.R. No. 203518, adopts
the latter's argument that the crime penalized by Section 4 (c) (1)
"encompasses even commercially available cinematic films which feature
adult subject matter and artistic, literary or scientific material and
instructional material for married couples." 24 IaHAcT

The OSG counters that Section 4 (c) (1) does not run afoul with the Free
Speech Clause because it merely "seeks to punish online exhibition of sexual
organs and activities or cyber prostitution and white slave trade for favor or
consideration." 25 It adds that "publication of pornographic materials in the
internet [is] punishable under Article 201 of the Revised Penal Code . . . which
has not yet been declared unconstitutional." 26 The ponencia agrees, noting
that the "subject" of Section 4 (c) (1) is "not novel" as it is allegedly covered by
two other penal laws, Article 201 of the Code and Republic Act No. 9208 (The
Anti-Trafficking in Persons Act of 2003 [RA 9208]). The ponencia rejects the
argument that Section 4 (c) (1) is overbroad because "it stands a construction
that makes it apply only to persons engaged in the business of maintaining,
controlling, or operating . . . the lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system." 27
The government and the ponencia's position cannot withstand analysis.
As Section 4 (c) of RA 10175 itself states, the crimes defined under that part
of RA 10175, including Section 4 (c) (1), are "Content-related Offenses,"
penalizing the content of categories of online speech or expression. As a
content-based regulation, Section 4 (c) (1) triggers the most stringent
standard of review for speech restrictive laws strict scrutiny to test its
validity. 28 Under this heightened scrutiny, a regulation will pass muster only
if the government shows (1) a compelling state interest justifying the
suppression of speech; and (2) that the law is narrowly-tailored to further
such state interest. On both counts, the government in this case failed to
discharge its burden.
The state interests the OSG appears to advance as bases for Section 4 (c) (1)
are: (1) the protection of children "as cybersex operations . . . are most often
committed against children," and (2) the cleansing of cyber traffic by
penalizing the online publication of pornographic images. 29 Although
legitimate or even substantial, these interests fail to rise to the level of
compelling interests because Section 4 (c) (1) is both (1) overinclusive in its
reach of the persons exploited to commit the offense of cybersex, and (2)
underinclusive in its mode of commission. These defects expose a legislative
failure to narrowly tailor Section 4 (c) (1) to tightly fit its purposes.
As worded, Section 4 (c) (1) penalizes the "willful engagement, maintenance,
control, or operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system, for favor
or consideration." On the first interest identified by the government, the
overinclusivity of this provision rests on the lack of a narrowing clause
limiting its application to minors. As a result, Section 4 (c) (1) penalizes the
"lascivious exhibition of sexual organs of, or sexual activity" involving minors
and adults, betraying a loose fit between the state interest and the means to
achieve it.
Indeed, the proffered state interest of protecting minors is narrowly
advanced not by Section 4 (c) (1) but by the provision immediately following
it, Section 4 (c) (2), which penalizes online child pornography. Section 4 (c) (2)
provides:
(2) Child Pornography. The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer
system . . . .

Republic Act No. 9775 defines "Child pornography" as referring to

any representation, whether visual, audio, or written combination
thereof, by electronic, mechanical, digital, optical, magnetic or any
other means, of child engaged or involved in real or simulated
explicit sexual activities. 30 (Emphasis supplied)
 Under Section 3 of that law, the term "explicit sexual activities" is defined
as follows:
Section 3. Definition of terms.
xxx xxx xxx
(c) "Explicit Sexual Activity" includes actual or simulated
(1) As to form: ESCcaT

(i) sexual intercourse or lascivious act including, but not

limited to, contact involving genital to genital, oral to
genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
xxx xxx xxx
(5) lascivious exhibition of the genitals, buttocks, breasts,
pubic area and/or anus[.] (Emphasis supplied)
Clearly then, it is Section 4 (c) (2), not Section 4 (c) (1), that narrowly furthers
the state interest of protecting minors by punishing the "representation . . .
by electronic means" of sexually explicit conduct including the exhibition of
sexual organs of, or sexual acts, involving minors. Section 4 (c) (1) does not
advance such state interest narrowly because it is broadly drawn to cover
both minors and adults. Section 4 (c) (2) is constitutional because it narrowly
prohibits cybersex acts involving minors only, while Section 4 (c) (1) is
unconstitutional because it expands the prohibition to cybersex acts
involving both minors and adults when the justification for the prohibition is
to protect minors only.
The overinclusivity of Section 4 (c) (1) vis-a-vis the second state interest the
government invokes results from the broad language Congress employed to
define "cybersex." As the petitioners in G.R. No. 203378, G.R. No. 203359 and
G.R. No. 203518 correctly point out, the crime of "lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system, for favor
or consideration" embraces within its ambit "works of art that depict sexual
activities" made accessible to the public for a fee or "commercially available
cinematic films which feature adult subject matter and artistic, literary or
scientific material and instructional material for married couples." 31
Congress could have narrowly tailored Section 4 (c) (1) to cover only online
pornography by hewing closely to the Miller test the prevailing standard
for such category of unprotected speech, namely, "an average person,
applying contemporary standards would find [that] the work, taken as a
whole, appeals to the prurient interest by depict[ing] or describ[ing] in a
patently offensive way, sexual conduct specifically defined by the
applicable . . . law and . . ., taken as a whole, lacks serious literary, artistic,
political, or scientific value." 32
Moreover, Section 4 (c) (1) penalizes "any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer system, for favor or
consideration." There are many fee-based online medical publications that
illustrate sexual organs and even sexual acts. Section 4 (c) (1) will now outlaw
all these online medical publications which are needed by doctors in
practicing their profession. This again shows the overinclusiveness of Section
4 (c) (1) in violation of the Free Speech Clause.
The loose fit between the government interests of cleansing the Internet
channels of immoral content and of protecting minors, on the one hand, and
the means employed to further such interests, on the other hand, is
highlighted by the underincluvisity of Section 4 (c) (1) insofar as the manner
by which it regulates content of online speech. Section 4 (c) (1) limits the
ambit of its prohibition to fee-based websites exhibiting sexual organs or
sexual activity. In doing so, it leaves outside its scope and unpunished
under Section 4 (c) (1) non-fee based porn websites, such as those
generating income through display advertisements. The absence of
regulation under Section 4 (c) (1) of undeniably unprotected online speech in
free and open porn websites defeats the advancement of the state interests
behind the enactment of Section 4 (c) (1) because unlike fee-based online
porn websites where the pool of viewers is narrowed down to credit
cardowning subscribers who affirm they are adults, free and open porn
websites are accessible to all, minors and adults alike. Instead of purging the
Internet of pornographic content, Section 4 (c) (1) will trigger the proliferation
of free and open porn websites which, unlike their fee-based counterparts,
are not subject to criminal regulation under Section 4 (c) (1). What Section 4
(c) (1) should have prohibited and penalized are free and open porn websites
which are accessible by minors, and not fee-based porn websites which are
accessible only by credit card-owning adults, unless such fee-based websites
cater to child pornography, in which case they should also be prohibited and
penalized. ESITcH

It is doubtful whether Congress, in failing to tailor Section 4 (c) (1) to narrowly

advance state interests, foresaw this worrisome and absurd effect. It is,
unfortunately, an altogether common by-product of loosely crafted
legislations.
Contrary to the ponencia's conclusion, Section 4 (c) (1) does not cover "the
same subject" as Article 201 of the Code and RA 9208. Article 201 penalizes
"Immoral doctrines, obscene publications and exhibitions and indecent shows"
as understood under the Miller test. 33 On the other hand, RA 9208 penalizes
trafficking in persons (or its promotion) for illicit purposes (Section 4 [a]). The
fact that these statutory provisions remain valid in the statute books has no
bearing on the question whether a statutory provision penalizing the
"lascivious exhibition of sexual organs or sexual activity, with the aid of a
computer system, for favor or consideration" offends the Free Speech
Clause.
The majority's decision to uphold the validity of Section 4 (c) (1) reverses,
without explanation, the well-entrenched jurisprudence in this jurisdiction
applying the obscenity test of Miller. Just five years ago in 2009, this Court
unanimously applied Miller in Soriano v. Laguardia 34 to test whether the
statements aired on late night TV qualified for protection under the Free
Speech Clause. Much earlier in 2006, the Court also applied Miller to review a
conviction for violation of Article 201 of the Code on obscene publications in
Fernando v. Court of Appeals. 35 It was in Pita v. Court of Appeals, 36 however,
decided in 1989 over a decade after Miller, where the Court had first occasion
to describe Miller as "the latest word" in the evolution of the obscenity test in
the U.S. jurisdiction. Indeed, as I noted in my separate opinion in Soriano,
Miller is an "expansion" of previous tests on pornography developed in the
U.S. and English jurisdictions, liberalizing the elements of previous tests
(Hicklin and Roth):
The leading test for determining what material could be considered
obscene was the famous Regina v. Hicklin case wherein Lord
Cockburn enunciated thus:
 I think the test of obscenity is this, whether the tendency of
the matter charged as obscenity is to deprave and corrupt
those whose minds are open to such immoral influences, and
into whose hands a publication of this sort may fall.
Judge Learned Hand, in United States v. Kennerly, opposed the
strictness of the Hicklin test even as he was obliged to follow the
rule. He wrote: cTaDHS

I hope it is not improper for me to say that the rule as laid

down, however consonant it may be with mid-Victorian
morals, does not seem to me to answer to the understanding
and morality of the present time.
Roth v. United States laid down the more reasonable and thus, more
acceptable test for obscenity: "whether to the average person,
applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest." Such
material is defined as that which has "a tendency to excite lustful
thoughts," and "prurient interest" as "a shameful or morbid interest
in nudity, sex, or excretion."
Miller v. California merely expanded the Roth test to include two
additional criteria: "the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law; and the work, taken as whole, lacks serious literary, artistic,
political, or scientific value." The basic test, as applied in our
jurisprudence, extracts the essence of both Roth and Miller that is,
whether the material appeals to prurient interest. 37 (Italicization
supplied; internal citations omitted)

Miller is the modern obscenity test most protective of speech uniformly

followed in this jurisdiction for over two decades. The majority, in upholding
Section 4 (c) (1) and rejecting Miller, regresses to less protective frameworks
of speech analysis. Because neither the ponencia nor the concurring opinions
devote discussion on this doctrinal shift, one is left guessing whether the
Philippine jurisdiction's test on pornography has reverted only up to Roth or
reaches as far back as the discredited Hicklin test. Either way, the lowered
protection afforded to works claimed as obscene turns back the clock of free
expression protection to the late 1960s and beyond when prevailing mores
of morality are incongruous to 21st century realities. DHcEAa
 Section 4 (c) (3) Repugnant to the Free Speech Clause
Section 4 (c) (3) of RA 10175 makes criminal the transmission through a
computer system of "electronic communication . . . which seek to advertise,
sell, or offer for sale products and services" unless they fall under three
categories of exceptions. These categories are: (1) the recipient of the
commercial message "gave prior affirmative consent" to do so; (2) the
"primary intent" of the commercial message "is for service and/or
administrative announcements from the sender" to its "users, subscribers or
customers"; and (3) the commercial message (a) has an "opt-out" feature; (b)
has a source which is "not purposely disguise[d]"; and (c) "does not purposely
include misleading information . . . to induce the recipient to read the
message." According to the OSG, Congress enacted Section 4 (c) (3) to
improve the "efficiency of commerce and technology" and prevent
interference with "the owner's peaceful enjoyment of his property [computer
device]." 38
Section 4 (c) (3) fails scrutiny. Section 4 (c) (3) impermissibly restricts the flow
of truthful and non-misleading commercial speech in cyberspace that does
not fall under any of the exceptions in Section 4 (c) (3), lowering the
protection it enjoys under the Free Speech Clause. 39 Section 4 (c) (3) would
be constitutional if it allowed the free transmission of truthful and non-
misleading commercial speech, even though not falling under any of the
exceptions in Section 4 (c) (3). There is no legitimate government interest in
criminalizing per se the transmission in cyberspace of truthful and non-
misleading commercial speech. SEIacA

Under the exception clauses of Section 4 (c) (3), commercial speech may be
transmitted online only when (1) the recipient has subscribed to receive it
("opted-in"); or (2) the commercial speech, directed to its "users, subscribers
or customers," contains announcements; or (3) the undisguised, non-
misleading commercial speech has an "opt-out" feature. The combination of
these exceptions results in penalizing the transmission online (1) of
commercial speech with no "opt-out" feature to non-subscribers, even if
truthful and non-misleading; and (2) of commercial speech which does not
relay "announcements" to subscribers, even if truthful and non-
misleading. Penalizing the transmission of these protected categories of
commercial speech is devoid of any legitimate government interest and thus
violates the Free Speech Clause.
Indeed, the free flow of truthful and non-misleading commercial speech
online should remain unhampered to assure freedom of expression of
protected speech. In cyberspace, the free flow of truthful and non-misleading
commercial speech does not obstruct the public view or degrade the
aesthetics of public space in the way that billboards and poster
advertisements mar the streets, highways, parks and other public places.
True, commercial speech does not enjoy the same protection as political
speech in the hierarchy of our constitutional values. However, any regulation
of truthful and non-misleading commercial speech must still have a
legitimate government purpose. Regulating truthful and non-misleading
commercial speech does not result in "efficiency of commerce and
technology" in cyberspace. aETDIc

In fact, the free flow of truthful and non-misleading commercial speech

should be encouraged in cyberspace for the enlightenment of the consuming
public, considering that it is cost-free to the public and almost cost-free to
merchants. Instead of using paper to print and mail truthful and non-
misleading commercial speech, online transmission of the same commercial
message will save the earth's dwindling forests and be more economical,
reducing marketing costs and bringing down consumer prices. If any
regulation of truthful and non-misleading commercial speech is to take place,
its terms are best fixed through the interplay of market forces in cyberspace.
This is evident, in fact, in the menu of options currently offered by email
service providers to deal with unwanted or spam email, allowing their
account holders to customize preferences in receiving and rejecting them.
Unwanted or spam emails automatically go to a separate spam folder where
all the contents can be deleted by simply checking the "delete all" box and
clicking the delete icon. Here, the account holders are given the freedom to
read, ignore or delete the unwanted or spam email with hardly any
interference to the account holders' peaceful enjoyment of their computer
device. Unless the commercial speech transmitted online is misleading or
untruthful, as determined by courts, government should step aside and let
this efficient self-regulatory market system run its course.
SCIcTD
 Section 7 of RA 10175 Repugnant to the
Double Jeopardy and Free Speech Clauses
The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the
constitutionality of Section 7, which makes conviction under RA 10175 non-
prejudicial to "any liability for violation of any provision of the Revised Penal
Code, as amended, or special laws," for being repugnant to the Double
Jeopardy Clause. The OSG sees no merit in the claim, citing the rule that "a
single set of acts may be prosecuted and penalized under two laws." 40
The OSG misapprehends the import of Section 7. Although RA 10175 defines
and punishes a number of offenses to which Section 7 applies, its application
to the offense of online libel under Section 4 (c) (4) of RA 10175, in relation to
the offense of libel under Article 353 of the Code, suffices to illustrate its
unconstitutionality for trenching the Double Jeopardy and Free Speech
Clauses.
RA 10175 does not define libel. Its definition is found in the Code (Article 353)
which provides:
Definition of libel A libel is a public and malicious imputation of a
crime or of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead. ACaEcH

As defined, the medium through which libel is committed is not an element

of such offense. What is required of the prosecution are proof of the (1)
statement of a discreditable act or condition of another person; (2)
publication of the charge; (3) identity of the person defamed; and (4)
existence of malice. 41 The irrelevance of the medium of libel in the
definition of the crime is evident in Article 355 of the Code which punishes
libel with a uniform penalty 42 whether it is committed "by means of
writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means."
CSaITD

RA 10175 adopts the Code's definition of libel by describing online libel under
Section 4 (c) (4) as "[t]he unlawful or prohibited acts as defined in Article 355 of
the Revised Penal Code, as amended, committed through a computer system
or any other similar means which may be devised in the future." By adopting
the Code's definition of libel, Section 4 (c) (4) also adopts the elements of libel
as defined in Article 353 in relation to Article 355 of the Code. Section 4 (c) (4)
merely adds the media of "computer system or any other similar means
which may be devised in the future" to the list of media enumerated in
Article 355. This is understandable because at the time the Code was enacted
in 1930, the Internet was non-existent. In the words of the OSG itself (in
contradiction to its position on the constitutionality of Section 7), Congress
enacted Section 4 (c) (4) not to create a new crime, but merely to "ma[ke]
express an avenue already covered by the term 'similar means' under Article
355, to keep up with the times":
Online libel is not a new crime. Online libel is a crime punishable
under . . . Article 353, in relation to Article 355 of the Revised Penal
Code. Section 4(c)(4) just made express an avenue already covered by
the term "similar means" under Article 355, to keep up with the times. 43
(Emphasis supplied)

For purposes of double jeopardy analysis, therefore, Section 4 (c) (4) of

RA 10175 and Article 353 in relation to Article 355 of the Code define and
penalize the same offense of libel. Under the Double Jeopardy Clause,
conviction or acquittal under either Section 4 (c) (4) or Article 353 in relation
to Article 355 constitutes a bar to another prosecution for the same offense of
libel.
AcICHD

The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in
G.R. No. 203378 provides a perfect example for applying the rules on print
and online libel in relation to the Double Jeopardy Clause. These petitioners
write columns which are published online and in print by national and local
papers. 44 They allege, and respondents do not disprove, that "their columns
see publication in both print and online versions of the papers they write
for." 45 Should these petitioners write columns for which they are prosecuted
and found liable under Section 4 (c) (4) of RA 10175 for online libel the
Double Jeopardy Clause bars their second prosecution for print libel for the
same columns upon which their first conviction rested, under Article 353 in
relation to Article 355 of the Code. Such constitutional guarantee shields
them from being twice put in jeopardy of punishment for the same offense
of libel.
The foregoing analysis applies to all other offenses defined and penalized
under the Code or special laws which (1) are penalized as the same offense
under RA 10175 committed through the use of a computer system; or (2) are
considered aggravated offenses under RA 10175. Conviction or acquittal
under the Code or such special laws constitutes a bar to the prosecution for
the commission of any of the offenses defined under RA 10175. Thus, for
instance, conviction or acquittal under Section 4 (a) of RA 9775 (use of a child
to create child pornography) 46 constitutes a bar to the prosecution for
violation of Section 4 (c) (2) of RA 19175 (online child pornography) and vice
versa. This is because the offense of child pornography under RA 9775 is the
same offense of child pornography under RA 10175 committed through the
use of a computer system. ESaITA

Section 7 of RA 10175 also offends the Free Speech Clause by assuring

multiple prosecutions of those who fall under the ambit of Section 4 (c) (4).
The specter of multiple trials and sentencing, even after conviction under RA
10175, creates a significant and not merely incidental chill on online speech.
Section 7 stifles speech in much the same way that excessive prison terms
for libel, subpoenas to identify anonymous online users or high costs of libel
litigation do. It has the effect of making Internet users "steer far wide of the
unlawful zone" 47 by practicing self-censorship, putting to naught the
democratic and inclusive culture of the Internet where anyone can be a
publisher and everyone can weigh policies and events from anywhere in the
world in real time. Although Section 7, as applied to Section 4 (c) (4), purports
to strengthen the protection to private reputation that libel affords, its
sweeping ambit deters not only the online publication of defamatory speech
against private individuals but also the online dissemination of scathing,
false, and defamatory statements against public officials and public figures
which, under the actual malice rule, are conditionally protected. This chilling
effect on online communication stifles robust and uninhibited debate on
public issues, the constitutional value lying at the core of the guarantees of
free speech, free expression and free press. ESAHca

Section 12 of RA 10175 Violative

of the Search and Seizure and
Privacy of Communication Clauses
Section 12 of RA 10175 grants authority to the government to record in bulk
and in real time electronic data transmitted by means of a computer system,
48 such as through mobile phones and Internet-linked devices. The extent of
the power granted depends on the type of electronic data sought to be
recorded, that is, whether traffic data or non-traffic data ("all other data"). For
traffic data, which RA 10175 defines as "the communication's origin,
destination, route, time, date, size, duration, or type of underlying service,"
the government, for "due cause" can record them on its own or with the aid
of service providers, without need of a court order. For non-traffic data
collection, a "court warrant" is required based on reasonable grounds that
the data to be collected is "essential" for the prosecution or prevention of
violation of any of the crimes defined under RA 10175. The full text of Section
12 provides: ATaDHC

Real-Time Collection of Traffic Data. Law enforcement authorities,

with due cause, shall be authorized to collect or record by technical
or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but not
content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or
is being committed, or is about to be committed: (2) that there are
reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or
to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence. TDEASC
 Section 12 of RA 10175 is the statutory basis for intelligence agencies of
the government to undertake warrantless electronic data surveillance and
collection in bulk to investigate and prosecute violations of RA 10175.
Section 12 fails constitutional scrutiny. Collection in bulk of private and
personal electronic data transmitted through telephone and the Internet
allows the government to create profiles of the surveilled individuals' close
social associations, personal activities and habits, political and religious
interests, and lifestyle choices expressed through these media. The intrusion
into their private lives is as extensive and thorough as if their houses, papers
and effects are physically searched. As such, collection in bulk of such
electronic data rises to the level of a search and seizure within the
meaning of the Search and Seizure Clause, triggering the requirement
for a judicial warrant grounded on probable cause. By vesting the
government with authority to undertake such highly intrusive search and
collection in bulk of personal digital data without benefit of a judicial warrant,
Section 12 is unquestionably repugnant to the guarantee under the Search
and Seizure Clause against warrantless searches and seizures. HScaCT

Further, Section 12 allows the use of advanced technology to impermissibly

narrow the right to privacy of communication guaranteed under the Privacy
of Communications Clause. Although such clause exempts from its coverage
searches undertaken "when public safety or order requires otherwise, as
prescribed by law," Section 12 is not a "law" within the contemplation of such
exception because it does not advance the interest of "public safety or
order." Nor does it comply with the warrant requirement which applies to all
searches of communication and correspondence not falling under
recognized exceptions to the Search and Seizure Clause, such as the search
of non-legal communication sent and received by detainees 49 search of
electronic data stored in government issued computers, 50 or security
searches at airports. 51DISTcH

Scope of Information Subject of Real-Time

Extrajudicial Collection and Analysis
by Government
Section 12's definition of traffic data the communication's origin,
destination, route, time, date, size, duration, or type of underlying service
encompasses the following information for mobile phone, Internet and email
communications:
Mobile phone:
telephone number of the caller
telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same
information are available save for the duration of the
communication.)
Email:
date
time
source
destination and size
attachment/s
country of sender and recipient
city of sender and recipient
Internet:
search keywords
public IP (Internet Protocol) of user
geolocation of user
client's name (for smartphone, PC or desktop)
browser
OS (Operating System)
URL (Universal Source Locator)
date and time of use

Unlike personal information which form part of the public domain (hence,
readily accessible) because their owners have either disclosed them to the
government as a result of employment in that sector or are part of
transactions made with regulatory agencies (such as the land transportation,
passport and taxing agencies), the information indicated above are personal
and private. They reveal data on the social associations, personal activities
and habits, political and religious interests, and lifestyle choices of individuals
that are not freely accessible to the public. Because Section 12 contains no
limitation on the quantity of traffic data the government can collect,
state intelligence agencies are free to accumulate and analyze as much
data as they want, anytime they want them.
Randomly considered, traffic data do not reveal much about a person's
relationships, habits, interests or lifestyle expressed online or through
phone. After all, they are mere bits of electronic footprint tracking a person's
electronic communicative or expressive activities. When compiled in massive
amounts, however, traffic data, analyzed over time, allows the state to create
a virtual profile of the surveilled individuals, revealing their close
relationships, mental habits, political and religious interests, as well as
lifestyle choices as detailed as if the government had access to the content
of their letters or conversations. Or put differently
When [traffic] information . . . is combined, it can identify all of our
surreptitious connections with the world, providing powerful
evidence of our activities and beliefs. [L]aw enforcement can
construct a "complete mosaic of a person's characteristics" through
this type of . . . surveillance. Under these circumstances, the
information the government accumulates is more akin to content
than mere cataloguing. 52 (Emphasis supplied) AcSEHT

The profiling of individuals is not hampered merely because the bulk data,
relate to telephone communication. As pointed out in a Report, dated 12
December 2013, by a government panel of experts 53 which reviewed the U.S.
government's electronic surveillance policy (Panel's Report)
[t]he record of every telephone call an individual makes or receives
over the course of several years can reveal an enormous amount
about that individual's private life. . . . . [T]elephone calling data can
reveal . . . an individual's "familial, political, professional, religious,
and sexual associations." It can reveal calls "to the psychiatrist, the
plastic surgeon, . . . the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour-motel, the union
meeting, the mosque, synagogue or church, the gay bar, and on
and on." 54 aEcDTC

This virtual profiling is possible not only because of software 55 which sifts
through telephone and Internet data to locate common patterns but also
because, for Internet "Universal Resource Locators . . ., they are [both]
addresses (e.g., www.amazon.com/kidneydisease) and [links] . . . allowing
access to the website and thus permit government to ascertain what the user
has viewed." 56 The identities of users of mobile phone numbers can easily
be found through Internet search or in public and private mobile phone
directories, calling cards, letterheads and similar documents. AECDHS

Bulk Data Surveillance Rises to the

Level of a "Search and Seizure" Within
the Meaning of the Search and Seizure
Clause
There is no quarrel that not all state access to personal information amount
to a "search" within the contemplation of the Search and Seizure Clause.
Government collection of data readily available (or exposed) to the public,
even when obtained using devices facilitating access to the information, does
not implicate constitutional concerns of privacy infringement. 57 It is when
government, to obtain private information, intrudes into domains over which
an individual holds legitimate privacy expectation that a "search" takes place
within the meaning of the Search and Seizure Clause. 58 To determine
whether the collection of bulk traffic data of telephone and online
communication amounts to a constitutional search, the relevant inquiry,
therefore, is whether individuals using such media hold legitimate
expectation that the traffic data they generate will remain private.
Unlike this Court, the U.S. Supreme Court had weighed such question and
answered in the negative. In Smith v. Maryland, 59 promulgated in 1979, that
court was confronted with the issue whether the warrantless monitoring of
telephone numbers dialed from a private home and stored by the telephone
company, amounted to a search within the meaning of the Fourth
Amendment. The U.S. High Court's analysis centered on the reasoning that a
caller has no legitimate privacy expectation over telephone numbers stored
with telephone companies because he "assumed the risk that the company
would reveal to police the numbers he dialed." 60acCTIS

Several reasons undercut not only the persuasive worth of Smith in this
jurisdiction but also the cogency of its holding. First, all three modern
Philippine Constitutions, unlike the U.S. Constitution, explicitly guarantee
"privacy of communications and correspondence." 61 This is a constitutional
recognition, no less, of the legitimacy of the expectation of surveilled
individuals that their communication and correspondence will remain private
and can be searched by the government only upon compliance with the
warrant requirement under the Search and Seizure Clause. Although such
guarantee readily protects the content of private communication and
correspondence, the guarantee also protects traffic data collected in bulk
which enables the government to construct profiles of individuals' close
social associations, personal activities and habits, political and religious
interests, and lifestyle choices, enabling intrusion into their lives as
extensively as if the government was physically searching their "houses,
papers and effects." 62 CSEHIa

Second, at the time the U.S. Supreme Court decided Smith in 1979, there
were no cellular phones, no Internet and no emails as we know and use
them today. Over the last 30 years, technological innovations in mass media
and electronic surveillance have radically transformed the way people
communicate with each other and government surveils individuals. These
radical changes undergirded the refusal of the District Court of Columbia to
follow Smith in its ruling promulgated last 16 December 2013, striking down
portions of the spying program of the U.S. National Security Agency (NSA). 63
The District Court observed:
[T]he relationship between the police and the phone company in
Smith is nothing compared to the relationship that has apparently
evolved over the last seven years between the Government and
telecom companies. . . . In Smith, the Court considered a one-time,
targeted request for data regarding an individual suspect in a criminal
investigation, . . . which in no way resembles the daily, all-
encompassing, indiscriminate dump of phone metadata that the
(NSA) now receives as part of its Bulk Telephony Metadata Program.
It's one thing to say that people expect phone companies to occasionally
provide information to law enforcement; it is quite another to suggest
that our citizens expect all phone companies to operate what is
effectively a joint intelligence-gathering operation with the
Government. . . . . 64 (Emphasis supplied)

Third, individuals using the telephone and Internet do not freely disclose
private information to the service providers and the latter do not store such
information in trust for the government. Telephone and Internet users
divulge private information to service providers as a matter of necessity to
access the telephone and Internet services, and the service providers store
such information (within certain periods) also as a matter of necessity to
enable them to operate their businesses. In what can only be described as an
outright rejection of Smith's analysis, the Panel's Report, in arriving at a
similar conclusion, states: 65 CHDaAE

In modern society, individuals, for practical reasons, have to use

banks, credit cards, e-mail, telephones, the Internet, medical
services, and the like. Their decision to reveal otherwise private
information to such third parties does not reflect a lack of concern for
the privacy of the information, but a necessary accommodation to
the realities of modern life. What they want and reasonably
expect is both the ability to use such services and the right to
maintain their privacy when they do so. 66 (Emphasis supplied)

Clearly then, bulk data surveillance and collection is a "search and seizure"
within the meaning of the Search and Seizure Clause not only because it
enables maximum intrusion into the private lives of the surveilled individuals
but also because such individuals do not forfeit their privacy expectations
over the traffic data they generate by transacting with service providers. Bulk
data and content-based surveillance and collection are functionally identical
in their access to personal and private information. It follows that the
distinction Section 12 of RA 10175 draws between content-based and bulk
traffic data surveillance and collection, requiring judicial warrant for the
former and a mere administrative "due cause" for the latter, is
unconstitutional. As "searches and seizures" within the contemplation of
Search and Seizure Clause, bulk data and content-based surveillance and
collection are uniformly subject to the constitutional requirement of a judicial
warrant grounded on probable cause. ESCDHA

Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence
The grant under Section 12 of authority to the government to undertake bulk
data surveillance and collection without benefit of a judicial warrant enables
the government to access private and personal details on the surveilled
individuals' close social associations, personal activities and habits, political
and religious interests, and lifestyle choices. This impermissibly narrows the
sphere of privacy afforded by the Privacy of Communication Clause. It opens
a backdoor for government to pry into their private lives as if it obtained
access to their phones, computers, letters, books, and other papers and
effects. Since Section 12 does not require a court warrant for government to
undertake such surveillance and data collection, law enforcement agents can
access these information anytime they want to, for whatever purpose they
may deem as amounting to "due cause."
The erosion of the right to privacy of communication that Section 12
sanctions is pernicious because the telephone and Internet are indispensable
tools for communication and research in this millennium. People use the
telephone and go online to perform tasks, run businesses, close transactions,
read the news, search for information, communicate with friends, relatives
and business contacts, and in general go about their daily lives in the most
efficient and convenient manner. Section 12 forces individuals to make the
difficult choice of preserving their communicative privacy but reverting to
non-electronic media, on the one hand, or availing of electronic media while
surrendering their privacy, on the other hand. These choices are inconsistent
with the Constitution's guarantee to privacy of communication. CDAHaE

Section 12 of RA 10175 not a "law"

Within the Contemplation of the
Exception Clause in Section 3 (1),
Article III of the 1987 Constitution
Undoubtedly, the protection afforded by the Constitution under the Privacy
of Communication Clause is not absolute. It exempts from the guarantee
intrusions "upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law." Does Section 12 of RA 10175
constitute a "law" within the contemplation of the Privacy of Communication
Clause? acHTIC

When the members of the 1971 Constitutional Convention deliberated on

Article III, Section 4 (1) of the 1973 Constitution, the counterpart provision of
Article III, Section 3 (1) of the 1987 Constitution, the phrase "public safety or
order" was understood by the convention members to encompass "the
security of human lives, liberty and property against the activities of invaders,
insurrectionists and rebels." 67 This narrow understanding of the public safety
exception to the guarantee of communicative privacy is consistent with
Congress' own interpretation of the same exception as provided in Article III,
Section 1 (5) of the 1935 Constitution. Thus, when Congress passed the Anti-
Wiretapping Act 68 (enacted in 1965), it exempted from the ban on
wiretapping "cases involving the crimes of treason, espionage, provoking war
and disloyalty in case of war, piracy, mutiny in the high seas, rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, inciting to sedition, kidnapping as defined by
the Revised Penal Code, and violations of Commonwealth Act No. 616,
punishing espionage and other offenses against national security" (Section 3).
In these specific and limited cases where wiretapping has been allowed, a
court warrant is required before the government can record the
conversations of individuals.
Under RA 10175, the categories of crimes defined and penalized relate to (1)
offenses against the confidentiality, integrity and availability of computer
data and systems (Section 4 [a]); (2) computer-related offenses (Section 4 [b]);
(3) content-related offenses (Section 4 [c]); and (4) other offenses (Section 5).
None of these categories of crimes are limited to public safety or public
order interests (akin to the crimes exempted from the coverage of the Anti-
Wiretapping Law). They relate to crimes committed in the cyberspace which
have no stated public safety or even national security dimensions. Such fact
takes Section 12 outside of the ambit of the Privacy of Communication
Clause.
In any event, even assuming that Section 12 of RA 10175 is such a "law," such
"law" can never negate the constitutional requirement under the Search and
Seizure Clause that when the intrusion into the privacy of communication
and correspondence rises to the level of a search and seizure of personal
effects, then a warrant issued by a judge becomes mandatory for such
search and seizure. Fully cognizant of this fact, Congress, in enacting
exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made
sure that law enforcement authorities obtain a warrant from a court based
on probable cause to undertake wiretapping. Section 3 of the Anti-
Wiretapping Act provides: HSacEI
 Nothing contained in this Act, however, shall render it unlawful or
punishable for any peace officer, who is authorized by a written order
of the Court, to execute any of the acts declared to be unlawful in the
two preceding Sections in cases involving the crimes of treason,
espionage, provoking war and disloyalty in case of war, piracy,
mutiny in the high seas, rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy to commit
sedition, inciting to sedition, kidnapping as defined by the Revised
Penal Code, and violations of Commonwealth Act No. 616, punishing
espionage and other offenses against national security: Provided,
That such written order shall only be issued or granted upon written
application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and a showing: (1) that
there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, That in
cases involving the offenses of rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy to commit
sedition, and inciting to sedition, such authority shall be granted only
upon prior proof that a rebellion or acts of sedition, as the case may be,
have actually been or are being committed; (2) that there are
reasonable grounds to believe that evidence will be obtained essential
to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means
readily available for obtaining such evidence. (Emphasis supplied)

Section 12 of RA 10175 More

Expansive than U.S. Federal Electronic
Surveillance Laws
Under U.S. federal law, authorities are required to obtain a court order to
install "a pen register or trap and trace device" to record in real time or
decode electronic communications. 69 Although initially referring to
technology to record telephone numbers only, the term "pen register or trap
and trace device" was enlarged by the Patriot Act to cover devices which
record "dialing, routing, addressing, and signaling information utilized in the
processing and transmitting of wire or electronic communications," including
Internet traffic data. 70 The court of competent jurisdiction may issue ex parte
the order for the installation of the device "if [it] finds that the State law
enforcement or investigative officer has certified to the court that the
information likely to be obtained by such installation and use is relevant to an
ongoing criminal investigation." 71
ICTHDE

For electronic surveillance relating to foreign intelligence, U.S. federal law

requires the government to obtain ex parte orders from the Foreign
Intelligence Surveillance Court (FISC) 72 upon showing that "the target of
surveillance was a foreign power or an agent of a foreign power." 73 Under an
amendment introduced by the Patriot Act, the government was further
authorized to obtain an ex parte order from the FISC for the release by third
parties of "tangible things" such as books, papers, records, documents and
other items "upon showing that the tangible things sought are relevant to an
authorized investigation . . . to obtain foreign intelligence information not
concerning a United States person or to protect against international
terrorism or clandestine intelligence activities." 74 The investigation is further
subjected to administrative oversight by the Attorney General whose prior
authorization to undertake such investigation is required. 75
In contrast, Section 12 of R.A 10175 authorizes law enforcement officials "to
collect or record by technical or electronic means traffic data in real-time" if,
in their judgment, such is for "due cause." 76 Unlike in the Patriot Act, there is
no need for a court order to collect traffic data. RA 10175 does not provide a
definition of "due cause" although the OSG suggests that it is synonymous
with "just reason or motive" or "adherence to a lawful procedure." 77 The
presence of "due cause" is to be determined solely by law enforcers.
In comparing the U.S. and Philippine law, what is immediately apparent is
that the U.S. federal law requires judicial oversight for bulk electronic data
collection and analysis while Philippine law leaves such process to the
exclusive discretion of law enforcement officials. The absence of judicial
participation under Philippine law precludes independent neutral
assessment by a court on the necessity of the surveillance and collection of
data. 78 Because the executive's assessment of such necessity is unilateral,
Philippine intelligence officials can give the standard of "due cause" in
Section 12 of RA 10175 as broad or as narrow an interpretation as they want.
The world by now is aware of the fallout from the spying scandal in the
United States arising from the disclosure by one of its intelligence computer
specialists that the U.S. government embarked on bulk data mining, in real
time or otherwise, of Internet and telephone communication not only of its
citizens but also of foreigners, including heads of governments of 35
countries. 79 The District Court's observation in Klayman on the bulk data
collection and mining undertaken by the NSA of telephone traffic data is
instructive:
I cannot imagine a more "indiscriminate" and "arbitrary invasion"
than this systematic and high-tech collection and retention of
personal data on virtually every single citizen for purposes of
querying and analyzing it without prior judicial approval. Surely, such
a program infringes on "that degree of privacy" that the Founders
enshrined in the Fourth Amendment. Indeed, I have little doubt that
the author of our Constitution, James Madison, who cautioned us to
beware "the abridgment of freedom of the people by gradual and
silent encroachments by those in power," would be aghast. 80 cSICHD

Equally important was that court's finding on the efficacy of the bulk
surveillance program of the U.S. government: "the Government does not
cite a single instance in which analysis of the NSA's bulk metadata
collection actually stopped an imminent attack, or otherwise aided the
Government in achieving any objective that was time-sensitive in nature."
81

To stem the ensuing backlash, legislative and executive leaders of the U.S.
government committed to re-writing current legislation to curb the power of
its surveillance agencies. 82 The pressure for reforms increased with the
recent release of an unprecedented statement by the eight largest Internet
service providers in America calling on the U.S. government to "limit
surveillance to specific, known users for lawful purposes, and . . . not
undertake bulk data collection of Internet communications." 83 Along the
same lines, the Panel's Report recommended, among others that, "the
government should not be permitted to collect and store all mass,
undigested, non-public personal information about individuals to enable
future queries and data-mining for foreign intelligence purposes" 84 as such
poses a threat to privacy rights, individual liberty and public trust. The Panel's
Report elaborated:
Because international terrorists inevitably leave footprints when they
recruit, train, finance, and plan their operations, government
acquisition and analysis of such personal information might provide
useful clues about their transactions, movements, behavior,
identities and plans. It might, in other words, help the government
find the proverbial needles in the haystack. But because such
information overwhelmingly concerns the behavior of ordinary, law-
abiding individuals, there is a substantial risk of serious invasions of
privacy.
As a report of the National Academy of Sciences (NAS) has observed,
the mass collection of such personal information by the government
would raise serious "concerns about the misuse and abuse of data,
about the accuracy of the data and the manner in which the data are
aggregated, and about the possibility that the government could,
through its collection and analysis of data, inappropriately influence
individuals' conduct."
According to the NAS report, "data and communication streams" are
ubiquitous:
[They] concern financial transactions, medical records, travel,
communications, legal proceedings, consumer preferences,
Web searches, and, increasingly, behavior and biological
information. This is the essence of the information age . . .
everyone leaves personal digital tracks in these systems whenever
he or she makes a purchase, takes a trip, uses a bank account,
makes a phone call, walks past a security camera, obtains a
prescription, sends or receives a package, files income tax forms,
applies for a loan, e-mails a friend, sends a fax, rents a video, or
engages in just about any other activity . . . . Gathering and
analyzing [such data] can play major roles in the prevention,
detection, and mitigation of terrorist attacks . . . . [But even]
under the pressures of threats as serious as terrorism, the
privacy rights and civil liberties that are cherished core values
of our nation must not be destroyed . . . . One . . . concern is
that law-abiding citizens who come to believe that their
behavior is watched too closely by government agencies . . .
may be unduly inhibited from participating in the democratic
process, may be inhibited from contributing fully to the social and
cultural life of their communities, and may even alter their purely
private and perfectly legal behavior for fear that discovery of
 intimate details of their lives will be revealed and used against
them in some manner. 85 (Emphasis supplied) aCcADT

In lieu of data collection in bulk and data mining, the Panel's Report
recommended that such data be held by "private providers or by a private
third party," 86 accessible by American intelligence officials only by order of
the FISC, upon showing that the requested information is "relevant to an
authorized investigation intended to protect 'against international terrorism
or clandestine intelligence activities,'" 87 a more stringent standard than what
is required under current federal law.
Finding merit in the core of the Panel's Report's proposal, President Obama
ordered a two-step "transition away from the existing program" of telephone
data collection in bulk and analysis, first, by increasing the threshold for
querying the data and requiring judicial oversight to do so (save in
emergency cases), and second, by relinquishing government's possession of
the bulk data:
[I]'ve ordered that the transition away from the existing program
will proceed in two steps.
Effective immediately, we will only pursue phone calls that are two
steps removed from a number associated with a terrorist
organization, instead of the current three, and I have directed the
attorney general to work with the Foreign Intelligence Surveillance
Court so that during this transition period, the database can be
queried only after a judicial finding or in the case of a true emergency.
Next, step two: I have instructed the intelligence community and the
attorney general to use this transition period to develop options for a
new approach that can match the capabilities and fill the gaps that
the Section 215 program was designed to address, without the
government holding this metadata itself . . . . 88 (Emphasis supplied)
AcHaTE

The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of
communication caused by the grant of broad powers to the state to place
anyone under electronic surveillance without or with minimal judicial
oversight. If judicial intervention under U.S. law for real time surveillance of
electronic communication did not rein in U.S. spies, the total absence of such
intervention under Section 12 of RA 10175 is a blanket legislative
authorization for data surveillance and collection in bulk to take place in this
country.
Section 12 Tilts the Balance in Favor
of Broad State Surveillance Over
Privacy of Communications Data
As large parts of the world become increasingly connected, with
communications carried on wired or wirelessly and stored electronically, the
need to balance the state's national security and public safety interest, on the
one hand, with the protection of the privacy of communication, on the other
hand, has never been more acute. Allowing the state to undertake
extrajudicial, unilateral surveillance and collection of electronic data in bulk
which, in the aggregate, is just as revealing of a person's mind as the content
of his communication, impermissibly tilts the balance in favor of state
surveillance at the expense of communicative and expressive privacy. More
than an imbalance in the treatment of equally important societal values,
however, such government policy gives rise to fundamental questions on the
place of human dignity in civilized society. This concern was succinctly
articulated by writers from all over the world protesting the policy of mass
surveillance and collection of data in bulk:ScaCEH

With a few clicks of the mouse, the state can access your mobile
device, your email, your social networking and Internet searches. It
can follow your political leanings and activities and, in partnership
with Internet corporations, it collects and stores your data.
The basic pillar of democracy is the inviolable integrity of the
individual. . . . [A]ll humans have a right to remain unobserved and
unmolested. . . . .
A person under surveillance is no longer free; a society under
surveillance is no longer a democracy. [O]ur democratic rights must
apply in virtual as in real space. 89

The Government must maintain fidelity to the 1987 Constitution's guarantee

against warrantless searches and seizures, as well as the guarantee of
privacy of communication and correspondence. Thus, the Government,
consistent with its national security needs, may enact legislation allowing
surveillance and data collection in bulk only if based on individualized
suspicion and subject to meaningful judicial oversight.
Section 19 of RA 10175 Violative of the
Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses
The OSG concedes the unconstitutionality of Section 19 which authorizes the
Department of Justice (DOJ) to "issue an order to restrict or block access" to
computer data, that is, "any representation of facts, information, or concepts
in a form suitable for processing in a computer system," 90 whenever the DOJ
finds such data prima facie violative of RA 10175. The OSG's stance on this
"take down" clause is unavoidable. Section 19 allows the government to
search without warrant the content of private electronic data and
administratively censor all categories of speech. Although censorship or prior
restraint is permitted on speech which is pornographic, commercially
misleading or dangerous to national security, 91 only pornographic speech is
covered by RA 10175 (under Section 4 (c) (2) on online child pornography).
Moreover, a court order is required to censor or effect prior restraint on
protected speech. 92 By allowing the government to electronically search
without warrant and administratively censor all categories of speech,
specifically speech which is non-pornographic, not commercially misleading
and not a danger to national security, which cannot be subjected to
censorship or prior restraint, Section 19 is unquestionably repugnant to the
guarantees of free speech, free expression and free press and the rights to
privacy of communication and against unreasonable searches and seizures.
Indeed, as a system of prior restraint on all categories of speech, Section 19 is
glaringly unconstitutional.
ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the
Revised Penal Code, insofar as it applies to public officers and public figures,
and the following provisions of Republic Act No. 10175, namely: Section 4 (c)
(1), Section 4 (c) (3), Section 7, Section 12, and Section 19, for being violative
of Section 2, Section 3 (1) Section 4, and Section 21, Article III of the
Constitution.

BRION, J., concurring:

A. Concurrences & Dissents

Technology and its continued rapid development in the 21st century have
been pushing outward the boundaries of the law, compelling new responses
and the redefinition of fundamental rights from their original formulation;
enlarging the need for, and the means of, governmental regulation; and
more importantly, sharpening the collision between the individual's exercise
of fundamental rights and governmental need for intervention.
In this kind of collision, the Court as constitutionally designed finds
itself in the middle, balancing its duty to protect individuals' exercise of
fundamental rights, with the State's intervention (through regulation and
implementation) in the performance of its duty to protect society. It is from
this vantage point that the Court, through the ponencia, closely examined the
Cybercrime Prevention Act (Cybercrime Law) and the validity of the various
provisions the petitioners challenged.
I write this Separate Concurring Opinion to generally support the ponencia,
although my vote may be qualified in some provisions or in dissent with
respect to others. In line with the Court's "per provision" approach and for
ease of reference, I have tabulated my votes and have attached the
tabulation and explanation as Annex "A" of this Separate Opinion. CaDSHE

This Opinion likewise fully explains my vote with a full discussion of my own
reasons and qualifications in the areas where I feel a full discussion is called
for. I am taking this approach in Section 12 of the Cybercrime Law in my vote
for its unconstitutionality. My qualifications come, among others, in terms of
my alternative view that would balance cybercrime law enforcement with the
protection of our citizenry's right to privacy.
I concur with the ponencia's finding that cyber-libel as defined in Section 4 (c)
(4) of the Cybercrime Law does not offend the Constitution. I do not agree,
however, with the ponencia's ultimate conclusion that the validity is "only with
respect to the original author of the post" and that cyber-libel is
unconstitutional "with respect to others who simply receive the post and react to
it."
I believe that the constitutional status of cyber-libel hinges, not on Section 4
(c) (4), but on the provisions that add to and qualify libel in its application to
Internet communications. For example, as the ponencia does, I find that
Section 5 1 of the Cybercrime Law (which penalizes aiding, abetting or
attempting to commit a cybercrime) is unconstitutional for the reasons fully
explained below, and should not apply to cyber-libel.
I likewise agree with Chief Justice Sereno's point on the unconstitutionality of
applying Section 6 of the Cybercrime Law (which penalizes crimes
committed through information communications technology) and impose on
libel a penalty one degree higher.
Further, I join Justice Carpio's call to declare Article 354 of the Revised
Penal Code unconstitutional when applied to libellous statements
committed against public officers and figures, and to nullify the application of
Section 7 of the Cybercrime Law to cyber-libel.
On the other content-related offenses in the Cybercrime Law, I concur with
the ponencia in upholding the constitutionality of Section 4 (c) (1) on
cybersex and Section 4 (c) (2) on child pornography committed through
computer systems, and in striking down as unconstitutional Section 4 (c) (3)
for violating the freedom of speech.
I also agree that Section 5 2 of the Cybercrime Law, in so far as it punishes
aiding, abetting or attempting to commit online commercial solicitation,
cyber-libel and online child pornography, violates the Constitution.
Lastly, I partially support the ponencia's position that Section 19 3 of the
Cybercrime Law (which empowers the Secretary of the Department of Justice
to restrict or block access to computer data found to be in violation of its
provisions) is unconstitutional for violating the right to freedom of
expression. CIAHaT

B. My Positions on Cyber-libel
B.1. The Core Meaning and
Constitutionality of Section 4 (c) (4)
Based on a facial examination of Section 4 (c) (4) of the Cybercrime Law, I
find no reason to declare cyber-libel or the application of Section 355 of the
Revised Penal Code (that penalizes libel made in print and other forms of
media, to Internet communications) unconstitutional.
Laws penalizing libel normally pit two competing values against each other
the fundamental right to freedom of speech on one hand, and the state
interest's to protect persons against the harmful conduct of others. The latter
conduct pertains to scurrilous speech that damages the reputation of the
person it addresses. Jurisprudence has long settled this apparent conflict by
excluding libelous speech outside the ambit of the constitutional protection.
4 Thus, the question of whether a libelous speech may be penalized by law
criminally or civilly has already been answered by jurisprudence in the
affirmative.
Article 355 of the Revised Penal Code penalizes "libel 5 committed by means
of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means."
Section 4 (c) (4) of the Cybercrime Law merely extends the application of
Article 355 to "communications committed through a computer system, or
any other similar means which may be devised in the future." It does not, by
itself, redefine libel or create a new crime it merely adds a medium
through which libel may be committed and penalized. Parenthetically, this
medium under the statutory construction principle of ejusdem generis
could already be included under Article 355 through the phrase "any similar
means."
Thus, I fully support the constitutionality of Section 4 (c) (4) as it stands by
itself; its intended effect is merely to erase any doubt that libel may be
committed through Internet communications. 6 However, my support stops
there in light of the qualifications under the law's succeeding provisions.
B.2. Sections 5, 6 & 7 of the Cybercrime Law
In the process of declaring internet defamatory statements within the reach
of our libel law, the Cybercrime Law also makes the consequences of cyber-
libel far graver than libelous speech in the real world. These consequences
result from the application of other provisions in the Cybercrime Law that
Congress, in the exercise of its policy-making power, chose to impose upon
cybercrimes. HECaTD

Thus, the law, through Section 5, opts to penalize the acts of aiding, abetting,
and attempting to commit a cybercrime; increases the penalty for crimes
committed by, through and with the use of information and communications
technologies in Section 6; and clarifies that a prosecution under the
Cybercrime Law does not ipso facto bar a prosecution under the Revised
Penal Code and other special laws in Section 7.
In my view, the application of these provisions to cyber-libel unduly increases
the prohibitive effect of libel law on online speech, and can have the effect of
imposing self-censorship in the Internet and of curtailing an otherwise robust
avenue for debate and discussion on public issues. In other words, Sections
5, 6 and 7 should not apply to cyber-libel, as they open the door to
application and overreach into matters other than libelous and can thus
prevent protected speech from being uttered.
Neither do I believe that there is sufficient distinction between libelous
speech committed online and speech uttered in the real, physical world to
warrant increasing the prohibitive impact of penal law in cyberspace
communications.
The rationale for penalizing defamatory statements is the same regardless of
the medium used to communicate it. It springs from the state's interest and
duty to protect a person's enjoyment of his private reputation. 7 The law
recognizes the value of private reputation and imposes upon him who
attacks it by slanderous words or libelous publications the liability to
fully compensate for the damages suffered by the wronged party. 8
I submit that this rationale did not change when libel was made to apply to
Internet communications. Thus, cyber-libel should be considered as the
State's attempt to broaden the protection for a person's private reputation,
and its recognition that a reputation can be slandered through the Internet in
the same way that it can be damaged in the real world. 9
A key characteristic of online speech is its potential to reach a wider number
of people than speech uttered in the real world. The Internet empowers
persons, both public and private, to reach a wider audience a
phenomenon some legal scholars pertain to as "cyber-reach." 10 Cyber-reach
increases the number of people who would have knowledge of a defamatory
statement a post published by a person living in the Philippines, for
instance, can reach millions of people living in the United States, and vice
versa. It could thus be argued that an increase in the audience of a libelous
statement made online justifies the inhibitive effect of Sections 5, 6, and 7 on
online speech. cASTED

I find this proposition to be flawed. Online speech has varying characteristics,

depending on the platform of communications used in the Internet. It does
not necessarily mean, for instance, that a libelous speech has reached the
public or a wider audience just because it was communicated through the
Internet. A libelous statement could have been published through an e-mail,
or through a private online group, or through a public website each with
varying degrees in the number of people reached.
I also find it notable that the publicity element of libel in the Revised Penal
Code does not take into consideration the amount of audience reached by
the defamatory statement. For libel prosecution purposes, a defamatory
statement is considered published when a third person, other than the
speaker or the person defamed, is informed of it. 11 Libelous speech may be
penalized when, for instance, it reaches a third person by mail, 12 or through
a television program, 13 or through a newspaper article published
nationwide. 14 All these defamatory imputations are punishable with the
same penalty of prision correccional in its minimum and medium periods or a
fine ranging from 200 to 6,000 pesos or both. 15
Penalizing libelous speech committed through the Internet with graver
penalties and repercussions because it allegedly reaches a wider audience
creates an unreasonable classification between communications made
through the Internet and in the real, physical world, to the detriment of
online speech. I find no basis to treat online speech and speech in the real
world differently on account of the former's cyber-reach because Article 355
of the Revised Penal Code does not treat libel committed through various
forms of media differently on account of the varying numbers of people they
reach.aCASEH

In other words, since Article 355 of the Revised Penal Code does not
distinguish among the means of communications by which libel is published,
the Cybercrime Law, which merely adds a medium of communications by
which libel may be committed, should also not distinguish and command a
different treatment than libel in the real world.
Notably, the enumeration of media in Article 355 of the Revised Penal Code
have for their common characteristic, not the audience a libelous statement
reaches, but their permanent nature as a means of publication. 16 Thus,
cyber-libel's addition of communications through the Internet in the
enumeration of media by which libel may be committed is a recognition that
it shares this common characteristic of the media enumerated in Article 355
of the RPC, and that its nature as a permanent means of publication injures
private reputation in the same manner as the enumeration in Article 355
does. IDCScA

Neither should the ease of publishing a libelous material in the Internet be a

consideration in increasing the penalty for cyber-libel. The ease by which a
libelous material may be published in the Internet, to me, is counterbalanced
by the ease through which a defamed person may defend his reputation in
the various platforms provided by the Internet a means not normally
given in other forms of media.
Thus, I agree with the ponencia that Section 5 17 of the Cybercrime Law,
which penalizes aiding, abetting, or attempting to commit any of the
cybercrimes enumerated therein, is unconstitutional in so far as it applies to
the crime of cyber-libel. As the ponente does, I believe that the provision,
when applied to cyber-libel, is vague and can have a chilling effect on
otherwise legitimately free speech in cyberspace.
I further agree with the Chief Justice's argument that it would be
constitutionally improper to apply the higher penalty that Section 6 imposes
to libel.
Section 6 18 qualifies the crimes under the Revised Penal Code and special
laws when committed by, through and with the use of information and
communications technologies, and considers ICT use as an aggravating
circumstance that raises the appropriate penalties one degree higher. As
Chief Justice Sereno points out, Section 6 not only considers ICT use to be a
qualifying aggravating circumstance, but also has the following effects: first,
it increases the accessory penalties of libel; second, it disqualifies the
offender from availing of the privilege of probation; third, it increases the
prescriptive period for the crime of libel from one year to fifteen years, and
the prescriptive period for its penalty from ten years to fifteen years; and
fourth, its impact cannot be offset by mitigating circumstances. aIDHET

These effects, taken together, unduly burden the freedom of speech because
the inhibiting effect of the crime of libel is magnified beyond what is
necessary to prevent its commission.
I also agree with Justice Carpio that the application of Section 7 to cyberlibel
should be declared unconstitutional. By adopting the definition of libel in the
Revised Penal Code, Section 4 (c) (4)'s definition of cyberlibel penalizes the
same crime, except that it is committed through another medium
enumerated in Article 355. Thus, Section 7 exposes a person accused of
uttering a defamatory statement to multiple prosecutions under the
Cybercrime Law and the Revised Penal Code for the same utterance. This
creates a significant chill on online speech, because the gravity of the
penalties involved could possibly compel Internet users towards self-
censorship, and deter otherwise lawful speech.
B.3. Article 354 of the Revised Penal Code
Lastly, I join in Justice Carpio's call for the Court to declare Article 354 of the
Revised Penal Code as unconstitutional in so far as it applies to public
officers and figures.
The petitions against the Cybercrime Law provide us with the opportunity to
clarify, once and for all, the prevailing doctrine on libel committed against
public officers and figures. The possibility of applying the presumed malice
rule against this kind of libel hangs like a Damocles sword against the actual
malice rule that jurisprudence established for the prosecution of libel
committed against public officers and figures. cDSAEI

The presumed malice rule embodied in Article 354 19 of the Revised Penal
Code provides a presumption of malice in every defamatory imputation,
except under certain instances. Under this rule, the defamatory statement
would still be considered as malicious even if it were true, unless the accused
proves that it was made with good and justifiable intentions. aSTAIH

Recognizing the importance of freedom of speech in a democratic republic,

our jurisprudence has carved out another exception to Article 354 of the
Revised Penal Code. Through cases such as Guingguing v. Court of Appeals 20
and Borjal v. Court of Appeals, 21 the Court has applied the actual malice rule
in libel committed against public officers and figures. This means that malice
in fact is necessary for libel committed against public officers and figures to
prosper, i.e., it must be proven that the offender made the defamatory
statement with the knowledge that it is false or with reckless disregard of
whether it is false or not. As the Court held in Guinguing, adopting the words in
New York Times v. Sullivan: 22 "[w]e have adopted the principle that debate on
public issues should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials."
I agree with Justice Carpio's point regarding the necessity of a concrete
declaration from the Court regarding Article 354's unconstitutional
application to libelous speech against public officers and officials. To neglect
our duty to clarify what the law would amount to and leave a gap in the
implementation of our laws on libel, in the words of Justice Carpio, would
"leave[s] fundamental rights of citizens to freedom of expression to the
mercy of the Executive's prosecutorial arm whose decision to press charges
depends on its own interpretation of the penal provision's adherence to the
Bill of Rights."
This need for a clear signal from the Court has become even more
pronounced given the current nature of the Internet now a vibrant avenue
for dialogue and discussion on matters involving governance and other
public issues, with the capacity to allow ordinary citizens to voice out their
concerns to both the government and to the public in general. aESICD

B.4. Summation of Constitutionality of Section 4 (c) (4)

With the four provisions i.e., Section 5, Section 6 and Section 7 of the
Cybercrime Law and Article 354 of the Revised Penal Code, removed from
cyber-libel, Section 4 (c) (4) would present a proper balance between
encouraging freedom of expression and preventing the damage to the
reputation of members of society. Conversely, the presence of either one of
these three provisions could tilt this delicate balance against freedom of
expression, and unduly burden the exercise of our fundamental right. Thus,
hand in hand with the recognition of the constitutionality of Section 4 (c)
(4) of the Cybercrime Law under a facial challenge, the four mentioned
provisions should likewise be struck down as unconstitutional.
C. My Positions on Section 12 of
the Cybercrime Law
In agreeing with the ponencia's conclusion regarding the unconstitutionality
of Section 12, I begin by emphasizing the point that no all-encompassing
constitutional right to privacy exists in traffic data. I stress the need to be
sensitive and discerning in appreciating traffic data as we cannot gloss over
the distinctions between content data and traffic data, if only because of the
importance of these distinctions for law enforcement purposes. TECIaH

The right to privacy over the content of internet communications is a given,

as recognized in many jurisdictions. 23 Traffic data should likewise be
recognized for what they are information necessary for computer and
communication use and, in this sense, are practically open and freely-
disclosed information that law enforcers may examine.
But beyond all these are information generated from raw traffic data on
people's activities in the Internet, that are collected through real-time
extended surveillance and which may be as private and confidential as
content data. To my mind, the grant to law enforcement agents of the
authority to access these data require a very close and discerning
examination to determine the grant's constitutionality.
I justify my position on the unconstitutionality of Section 12 as it patently
lacks proper standards guaranteeing the protection of data that should be
constitutionally-protected. In more concrete terms, Section 12 should not be
allowed based solely on law enforcement agents' finding of 'due cause'
to serve as authority for the warrantless real-time collection and recording
of traffic data.
Lastly, I clarify that the nullification of Section 12 does not absolutely bar the
real-time collection of traffic data, as such collection can be undertaken upon
proper application for a judicial warrant. Neither should my recommended
approach in finding the unconstitutionality of Section 12 prevent Congress,
by subsequent legislation, from authorizing the conduct of warrantless real-
time collection of traffic data provided that proper constitutional safeguards
are in place for the protection of affected constitutional rights.
C.1 The constitutional right to
privacy in Internet
communications data
The right to privacy essentially means the right to be let alone and to be free
from unwarranted government intrusion. 24 To determine whether a
violation of this right exists, a first requirement is to ascertain the existence
of a reasonable expectation of privacy that the government violates. The
reasonable expectation of privacy can be made through a two-pronged test
that asks: (1) whether, by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that society
recognizes as reasonable. Customs, community norms, and practices may,
therefore, limit or extend an individual's "reasonable expectation of privacy."
25 The awareness of the need for privacy or confidentiality is the critical point
that should dictate whether privacy rights exist. SaHTCE

The finding that privacy rights exist, however, is not a recognition that the
data shall be considered absolutely private; 26 the recognition must yield
when faced with a compelling and fully demonstrated state interest that
must be given primacy. In this exceptional situation, the balance undeniably
tilts in favor of government access or intrusion into private information. Even
then, however, established jurisprudence still requires safeguards to protect
privacy rights: the law or rule allowing access or intrusion must be so
narrowly drawn to ensure that other constitutionally-protected rights outside
the ambit of the overriding state interests are fully protected. 27
The majority of the Court in Ople v. Torres, 28 for instance, found the
repercussions and possibilities of using biometrics and computer
technologies in establishing a National Computerized Identification
Reference System to be too invasive to allow Section 4 of Administrative No.
308 (the assailed regulation which established the ID system) to pass
constitutional muster. According to the majority, the lack of sufficient
standards in Section 4 renders it vague and overly broad, and in so doing,
was not narrowly fitted to accomplish the state's objective. Thus, it was
unconstitutional for failing to ensure the protection of other constitutionally-
protected privacy rights.
Other governmental actions that had been declared to be constitutionally
infirm for failing the compelling state interest test discussed above include
the city ordinance barring the operation of motels and inns within the
Ermita-Malate area in City of Manila v. Laguio Jr., 29 and the city ordinance
prohibiting motels and inns from offering short-time admission and pro-
rated or "wash up" rates in White Light Corporation v. City of Manila. 30 In both
cases, the Court found that the city ordinance overreached and violated the
right to privacy of motel patrons, both single and married.
 C.2 Traffic and Content Data
The Internet serves as a useful technology as it facilitates communication
between people through the application programs they use. More precisely,
the Internet is "an electronic communications network that connects computer
networks and organizational computer facilities around the world." 31 These
connections result in various activities online, such as simple e-mails
between people, watching and downloading of videos, making and taking
phone calls, and other similar activities, done through the medium of various
devices such as computers, laptops, tablets and mobile phones. 32
Traffic data refer to the computer data generated by computers in
communicating to each other to indicate a communication's origin,
destination, route, time, date, size, duration or type of underlying service. 33
These data should be distinguished from content data which contain the
body or message of the communications sent. 34 Traffic data do not usually
indicate on their face the actual identity of the sender of the communication;
the content data, on the other hand, usually contain the identity of sender
and recipient and the actual communication between them. IESAac

It must also be appreciated that as the technology now exists, data (both
traffic and content) are usually sent through the Internet through a packet-
switching network. The system first breaks down the materials sent into tiny
packets of data which then pass through different networks until they reach
their destination where they are reassembled into the original data sent.
These tiny packets of data generally contain a header and a payload. The
header contains the overhead information about the packet, the service and
other transmission-related information. It includes the source and
destination of the data, the sequence number of the packets, and the type of
service, among others. The payload, on the other hand, contains the actual
data carried by the packet. 35 Traffic data may be monitored, recorded and
collected from the headers of packets. 36 aTEHCc

I hold the view, based on the above distinctions and as the ponencia did, that
no reasonable expectation of privacy exists in traffic data as they appear in
the header, as these are data generated in the course of communications
between or among the participating computers or devices and intermediary
networks. The absence of any expectation is based on the reality that the
traffic data: are open as they pass through different unknown networks; 37
cannot be expected to be private as they transit on the way to their intended
destination; and are necessarily identified as they pass from network to
network. In contrast, the content data they contain remain closed and
undisclosed, and do not have to be opened at all in order to be transmitted.
The unauthorized opening of the content data is in fact a crime penalized
under the Cybercrime Law. 38
For a clearer analogy, traffic data can be likened to the address that a person
sending an ordinary mail would provide in the mailing envelope, while the
size of the communication may be compared to the size of the envelope or
package mailed through the post office. There can be no reasonable
expectation of the privacy in the address appearing in the envelope and in
the size of the package as it is sent through a public network of intermediary
post offices; they must necessarily be read in these intermediary locations
for the mail to reach its destination.
A closer comparison can be drawn from the number dialed in using a
telephone, a situation that the US Supreme Court had the opportunity to
pass upon in Smith v. Maryland 39 when it considered the constitutionality of
the Pen Register Act. 40 The US Court held that the Act does not violate the
Fourth Amendment (the right to privacy) because no search is involved; there
could be no reasonable expectation of privacy in the telephone numbers that
a person dials. All telephone users realize that they must "convey" phone
numbers to the telephone company whose switching equipment serve as
medium for the completion of telephone calls.
As in the case of the regular mail and the use of numbers in communicating
by telephone, privacy cannot be reasonably expected from traffic data per se,
because their basic nature data generated in the course of sending
communications from a computer as communications pass through a public
network of intermediate computers. IcHEaA

To complete the comparison between transfer data and content data, an

individual sending an e-mail through the Internet would expect at least the
same level of privacy in his email's content as that enjoyed by the mail sent
through the post office or in what is said during a telephone conversation.
Expectations regarding the confidentiality of emails may in fact be higher
since their actual recipients are not identified by their actual names but by
their email addresses, in contrast with regular mails where the addresses in
the envelopes identify the actual intended recipients and are open to the
intermediary post offices through which they pass.
At the same level of privacy are the information that an Internet subscriber
furnishes the Internet provider. These are also private data that current data
privacy laws 41 require to be accurate under the guarantee that the provider
would keep them secure, protected, and for use only for the purpose for
which they have been collected.
For instance, a customer buying goods from a website used as a medium for
purchase or exchange, can expect that the personal information he/she
provides the website would only be used for facilitating the sales transaction.
42 The service provider needs the customer's consent before it can disclose
the provided information to others; otherwise, criminal and civil liability can
result. 43 This should be a reminder to service providers and their staff who
sell telephone numbers and addresses to commercial companies for their
advertising mailing lists.
Notably, social networking websites allow its subscribers to determine who
would view the information the subscribers provide, i.e., whether the
information may be viewed by the public in general, or by a particular group
of persons, or only by the subscriber. 44 Like the contents of Internet
communications, the user and the public in general expect these information
to be private and confidential.aHICDc

In the context of the present case where the right to privacy is pitted against
government intrusion made in the name of public interest, the intrinsic
nature of traffic data should be fully understood and appreciated because a
miscalibration may carry profound impact on one or the other.
In concrete terms, casting a net of protection wider than what is necessary to
protect the right to privacy in the Internet can unduly hinder law
enforcement efforts in combating cybercrime. Raw traffic data raise no
expectation of privacy and should not be beyond the reach of law enforcers.
At the opposite end, constitutionally allowing the unregulated inspection of
Section 12 may unwittingly allow government access or intrusion into data
greater than what the public recognizes or would allow, resulting in the
violation of privacy rights.
A miscalibration may immediately affect congressional action addressing the
balancing between the privacy rights of individuals and investigative police
action. The recognition of the right to privacy over raw traffic data may curtail
congressional action by practically requiring Congress to increase the
required governmental interest not only for the real-time surveillance and
collection of traffic data, but also for simple police investigative work. The
effect would of course be most felt at the level of field law enforcement
where officers would be required to secure a higher level of compelling
governmental interest simply to look at raw traffic data even on a non-
surveillance situation. Using the above email analogy, it may amount to
requiring probable cause to authorize law enforcement to look at an address
in a mailing envelope coursed through the public post office. cAaTED

Not to be forgotten is the reality that information and communication

technology particularly on the transmission, monitoring and encryption of
data is continuously evolving with no foreseeable end in sight. In the
words of Justice Scalia in Kyllo v. United States, 45 a case pitting the right to
privacy with the law enforcement's use of thermal imaging devices: "the rule
we adopt must take account of more sophisticated systems that are already
in use or in development." 46
This Court, made aware of this reality, must similarly proceed with caution in
exercising its duty to examine whether a law involving the regulation of
computers and cyber communications transgresses the Constitution. If we
must err, we should do so in favor of slow and carefully calibrated steps,
keeping in mind the possible and foreseeable impact of our decisions on
future technology scenarios and on our jurisprudence. After all, our
constitutionally-designed role is merely to interpret policy as expressed in
the law and rules, not to create policy.STaIHc

C.3 Data collected from Online Activities

the midway point between traffic data
and content data.
While traffic data can practically be considered as disclosed (and
consequently, open and non-confidential) data, they can once collected
and recorded over a period of time, or when used with other technologies
reveal information that the sender and even the general public expect to be
private and confidential.
This potential use of raw traffic data serves as the limit for the analogy
between traffic data and the addresses found in envelopes of regular mails.
Mailed letters exist in the physical world and, unless coursed through one
central post office, can hardly be monitored for a recognizable pattern of
activities that can yield significant data about the writer or the recipient.
In contrast, the Internet allows the real-time sending and receiving of
information at any given time, to multiple recipients who may be sending
and receiving their own information as well. This capability and the large
amount of traffic that ensues in real time open wide windows of opportunity
for analysis of the ensuing traffic for trends and patterns that reveal
information beyond the originally collected and recorded raw traffic data. For
example, the analysis may provide leads or even specifically disclose the
actual geographical location of the sender or recipient of the information, his
online activity, the websites he is currently browsing, and even possibly the
content of the information itself.
It is at this point that the originally raw traffic data mass cross over and
partake of the nature of content data that both the individual and the public
expect to be private. Evidently, privacy interests arise, not from the raw data
themselves, but from the resulting conclusions that their collection and
recording yield. Thus, violation of any existing constitutional right starts at
this point. From the point of view of effective constitutional protection, the
trigger is not at the point of the private information end result, but at the
point of real-time collection and recording of data that, over time and with
analysis, yield private and confidential end result. In other words, it is at the
earliest point that safeguards must be in place.
That this aspect of Internet use may no longer simply be an awaited potential
but is already a reality now with us, can be discerned from what computer
pundits say about the application of proper traffic analysis techniques to the
traffic data of phone calls conducted through the Internet (also known as
Voice Over Internet Protocol or VOIP). They claim that this analysis can reveal
the language spoken and the identity of the speaker, and may even be used
to reconstruct the actual words spoken during the phone conversation. 47
Others, on the other hand, have tested the possibility of inferring a person's
online activities for short periods of time through traffic data analysis. 48
Recent developments in the Internet, such as the rise of Big Data 49 and the
Internet of Things, 50 also serve as evidence of the realization of these
possibilities, as people share more and more information on how they
conduct their daily activities in the Internet and on how these information
are used to perform other tasks. Right now, wireless signal strength in
multiple monitoring locations may be used to accurately estimate a user's
location and motion behind walls. 51 With the advent of the Internet of
Things, which equips devices with sensors that allow the direct gathering of
information in the physical world for transmission to the Internet, even
seemingly innocuous traffic data, when collected, may possibly reveal even
personal and intimate details about a person and his activities. ADaEIH

Thus, I believe it indisputable that information gathered from purposively

collected and analyzed raw traffic data, now disclose information that the
Internet user never intended to reveal when he used the Internet. These include
the language used in a phone conversation in the Internet, the identity of the
speaker, the content of the actual conversation, as well as a person's exact
location inside his home. From this perspective, these data, as collected
and/or analyzed from online activities, are no different from content data
and should likewise be protected by the right to privacy. DTCAES

C.4 Deficiencies of Section 12

Section 12 of the Cybercrime Law authorizes law enforcement agents to
collect and record in real-time traffic data associated with specified
communications, under the following terms:
Section 12. Real-Time Collection of Traffic Data. Law enforcement
authorities, with due cause, shall be authorized to collect or record
by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer
system.
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but not
content, nor identities.
 All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or
is being committed, or is about to be committed: (2) that there are
reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or
to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence. AEDISC

I have no doubt that the state interest that this section seeks to protect is a
compelling one. This can be gleaned from Section 2 of the Cybercrime Law
which clearly sets out the law's objective to equip the State with sufficient
powers to prevent and combat cybercrime. The means or tools to this
objective, Section 12 among them, would enable our law enforcers to
investigate incidences of cybercrime, and apprehend and prosecute
cybercriminals. According to the Department of Justice, nearly nine out of ten
Filipino Internet users had been victims of crimes and malicious activities
committed online. Contrast this to the mere 2,778 cases of computer crimes
referred to the Anti-Transnational Crime Division (ATCD) of the Criminal
Investigation and Detection Group (CIDG) of the Philippine National Police
(PNP) from 2003 to 2012, 52 to get a picture of just how vulnerable the
citizenry is to computer-related crimes.
But bad might the situation be and as already mentioned in passing above, a
demonstrated and compelling state interest effectively serves only as
starting point and basis for the authority to grant collection and recording
authority to state agents faced with clearly established right to privacy. In
addition to and as equally important as the invoked compelling state interest,
is the requirement that the authorizing law or rule must provide safeguards
to ensure that no unwarranted intrusion would take place to lay open the
information or activities not covered by the state interest involved; the law or
rule must be narrowly drawn to confine access to what the proven state
interests require.
I submit that, on its face, Section 12 fails to satisfy this latter constitutional
requirement. In Section 12 terms, its "due cause" requirement does not
suffice as the safeguard that the Constitution requires. cDECIA

My examination of Section 12 shows that it properly deals with the various

types of data that computer communication generates, i.e., with traffic data
per se, with data other than the defined traffic data (thus, of content data),
and with the real-time collection of these data over time. The law, however, is
wanting on the required safeguards when private data are accessed.
True, traffic data per se does not require any safeguard or measure stricter
than the "due cause" that the law already requires, while content data can be
accessed only on the basis of a judicial warrant. The real time collection and
recording of traffic data and its "due cause" basis, however, suffer from fatal
flaws.
The law's "due cause" standard is vague in terms of the substance of what is
"due cause" and the procedure to be followed in determining the required
"cause". The law is likewise overly broad so that real-time monitoring of
traffic data can effectively overreach its allowable coverage and encroach
into the realm of constitutionally-protected activities of Internet users,
specifically, data that a cybercrime may not even address.
Consider, in this regard, that as worded, law enforcement agents, i.e.,
members of the National Bureau Investigation (NBI) and the Philippine
National Police (PNP), 53 practically have carte blanche authority to conduct
the real-time collection and recording of traffic data at anytime and on any
Internet user, given that the law does not specifically define or give the
parameters of the purpose for which law enforcement authorities are
authorized to conduct these intrusive activities. Without sufficient guiding
standards, the "due cause" basis in effect allows law enforcement agents to
monitor all traffic data. This approach, to my mind, may even allow law
enforcement to conduct constitutionally-prohibited fishing expeditions for
violations and their supporting evidence. AcHSEa

Additionally, while Section 2 empowers the State to adopt sufficient powers

to conduct the detection, investigation and prosecution of cybercrime as an
expressed policy, Section 12, however, does not provide a standard sufficient
to render enforcement rules certain or determinable; it also fails to provide
guiding particulars on the real-time monitoring of traffic data. Assuming that
the Cybercrime Law contemplates that real-time collection of traffic data
would assist in criminal investigations, the provision does not provide any
specified or determinable trigger for this activity should collection and
recording be connected with criminal investigation in general? Is it necessary
that a cybercrime has already been committed, or could it be used to prevent
its commission? Would it only apply to investigations on cybercrime, or
would it include investigations on crimes in the physical world whose aspects
have seeped into the Internet?
In the absence of standards, guidelines or clean definitions, the 'due cause'
requirement of Section 12 fatally opens itself to being vague as it does not
even provide the context in which it should be used. It merely provides that
the real-time monitoring would be related to 'specified communications'
without mentioning as to what these communications pertain to, how these
communications will be specified, and as well as the extent of the specificity
of the communications. ADaSEH

Section 12 likewise does not provide for the extent and depth of the real-
time collection and recording of traffic data. It does not limit the length of
time law enforcement agents may conduct real-time monitoring and
recording of traffic data, as well as the allowable contours by which a
specified communication may be monitored and recorded. In other words, it
does not state how long the monitoring and recording of the traffic data
connected to a specified communication could take place, how specific a
specified communication should be, as well as the extent of the association
allowable.
The absolute lack of standards in the collection and recording of traffic data
under Section 12 in effect negates the safeguards under Section 13 of the
Cybercrime Law. Section 13 obligates internet service providers to collect and
store traffic data for six months, which data law enforcement agents can only
access based on a judicial order under Section 14. Properly understood,
Section 13 is a recognition that traffic data once collected in depth and for a
considerable period of time, would produce information that are private. But
because Section 12 does not specify the length and extent of the real-time
collection, monitoring and storage of traffic data, it in effect skirts the judicial
warrant requirement before any data may be viewed under Section 13. The
limitation in this section also does not also apply if the law enforcement
agency has its own collection and recording facilities, a possibility that in
these days is not farfetched. IcTEAD

Neither does Section 12 as worded sufficiently limit the information that

would be collected and recorded in real-time only to traffic data. The lack of
standards in Section 12 regarding the extent and conduct of the real-time
collection and recording of traffic data effectively allows for its collection in
bulk, which, as earlier pointed out, reveals information that are private. The
lack of standards also does not prevent the possibility of using technologies
that translates traffic data collected in real-time to content data or disclose a
person's online activities.
Significantly, the Cybercrime Law's omissions in limiting the scope and
conduct of the real-time collection and recording of traffic data cannot be
saved by statutory construction; neither could it be filled-in by implementing
rules and regulations. We can only construe what the law provides,
harmonize its provisions and interpret its language. We cannot, no matter
how noble the cause, add to what is not provided in the law.
The same limitation applies to law enforcement agents in the
implementation of a law assuming they have been delegated to provide
for its rules and regulations. They cannot, in fixing the details of a law's
implementation, legislate and add to the law that they seek to implement.
Given the importance of Section 12 in cybercrime prevention and its possible
impact on the right to privacy, we cannot, in interpreting a law, usurp what is
rightfully the Congress's duty and prerogative to ensure that the real-time
collection of traffic data does not overreach into constitutionally-protected
activities. In other words, it is Congress, through law, which should draw the
limits of traffic data collection. Our duty in the Court comes only in
determining whether these limits suffice to meet the principles enshrined in
the Constitution.
In sum, as worded, the authorization for a warrantless real-time collection
and recording of traffic data is not narrowly drawn to ensure that it would
not encroach upon the privacy of Internet users online. Like A.O. No. 308 in
Ople v. Torres, Section 12 of the Cybercrime threatens the right to privacy of
our people, and should thus be struck down as unconstitutional. aSTAHD

D. Implications for law enforcement of

the unconstitutionality of Sec. 12
The Court has, in addition to its constitutional duty to decide cases and
correct jurisdictional errors, the duty to provide guidance to the bench and
bar. 54 It is in consideration of this duty, as well as the pressing need for
balance between the investigation and prosecution of cybercrimes and the
right to privacy, that I discuss the repercussions of my proposed ruling on
law enforcement.
The declaration of the unconstitutionality of Section 12 in the manner framed
by the Court, should not tie the hands of Congress in enacting a replacement
provision empowering the conduct of warrantless real-time collection of
traffic data by law enforcement agents. This grant of power should of course
avoid the infirmities of the present unconstitutional provision by providing
for standards and safeguards to protect private data and activities from
unwarranted intrusion.
I clarify as well that the unconstitutionality of Section 12 does not remove
from the police the authority to undertake real-time collection and recording
of traffic data as an investigation tool that law enforcement agents may avail
of in the investigation and prosecution of criminal offenses, both for offenses
involving cybercrime and ordinary crimes. Law enforcement agencies may
still conduct these activities under their general powers, but with a prior
judicial authorization in light of the nature of the data to be collected. To cite
an example in today's current crime situation, this tool may effectively be
used against the drug menace whose leadership has so far evaded arrest
and whose operations continue despite police interdiction efforts.
Notably, Section 24 of Republic Act No. 6975 empowers the Philippine
National Police to enforce all laws and ordinances relative to the protection
of lives and properties; maintain peace and order and take all necessary
steps to ensure public safety; investigate and prevent crimes, effect the
arrest of criminal offenders, bring offenders to justice and assist in their
prosecution; and to exercise the general powers to make arrest, search and
seizure in accordance with the Constitution and pertinent laws.
Section 1 of Republic Act No. 157 as amended, on the other hand, mandates
the National Bureau of Investigation to investigate crimes and other offenses
against Philippine laws, assist, upon request, in the investigation or detection
of crimes, and to establish and maintain an up-to-date scientific crime
laboratory and to conduct researches in furtherance of scientific knowledge
in criminal investigation.
cSEaTH

These laws sufficiently empower the PNP and the NBI to make use of up-to-
date equipment in the investigation of crimes and in the apprehension and
prosecution of criminals, including cybercriminals. The PNP is particularly
empowered to undertake search and seizure under RA 6975. The need for a
judicial warrant does not need be a stumbling block in these efforts in the
sensitive area of Internet data, as the grant of warrant is merely a question of
the existence of a probable cause, proven of course according to the
requirements of the Constitution.
E. The role of the courts in cybercrime
prevention and prosecution
Internet has significantly changed the way crimes are committed, and has
paved the way for the emergence of new crimes committed in a totally
different plane: from the previous real, physical world, to the abstract,
borderless plane of interconnected computers linked through the Internet.
In the same manner that technology unleashed these new threats to security
and peace, it also devised new means to detect, apprehend and prosecute
those who threaten society. The Cybercrime Law is notable in its aim to
penalize these new threats, and in giving clear signals and actually
empowering our law enforcement agents in the investigation of these
cybercrimes, in the apprehension of cybercriminals, and in the prosecution
of cases against them.
In the same manner likewise that our laws and law enforcement have been
adapting to the threats posed by cybercrime, we in the judiciary must also
rise up to the challenge of competently performing our adjudicative
functions in the cyber world. HSCcTD

The judicial steps in cybercrime prosecution start as early as the investigation

of cybercrimes, through the issuance of warrants necessary for real-time
collection of traffic data, as well as the issuance of the orders for the
disclosure of data retained by internet service providers. 55 After these,
courts also determine the probable cause for the arrest of suspects accused
of committing cybercrimes. The suspect's arrest would then lead to a trial
that, depending on the suspect's conviction or acquittal, could then go
through the judiciary appellate process. During trial, pieces of evidence
would be presented and testimonies heard, and trial courts would then
exercise their constitutional duty to adjudicate the cases brought before
them.
Judicial involvement in all these processes requires the handling members of
the Judiciary to be computer literate, at the very least. We cannot fully grasp
the methodologies and intricacies of cybercrimes unless we have a basic
understanding of how the world of computers operates. From the point of
law, basic knowledge must be there to grasp how cybercrimes may be
proven before us during trial, and what constitutes the evidentiary threshold
that would allow us to determine, beyond reasonable doubt, that the person
accused really did commit a cybercrime.
For instance, I agree with the Solicitor General's observation that time is of
the utmost essence in cybercrime law enforcement, as the breadth and
speed of technology make the commission of these crimes and the
subsequent destruction of its evidence faster and easier. To my mind, our
current rules of procedure for the issuance of search warrants might not be
responsive enough to effectively track down cybercriminals and obtain
evidence of their crimes. Search warrants for instance, might be issued too
late to seize evidence of the commission of a cybercrime, or may not
properly describe what should be seized, among others. DaECST

Due to the highly-technical nature of investigating and prosecuting

cybercrimes, as well as the apparent need to expedite our criminal
procedure to make it more responsive to cybercrime law enforcement, I
propose that special cybercrime courts be designated to specifically handle
cases involving cybercrime. In addition, these cybercrime courts should
have their own rules of procedure tailor-fitted to respond to the technical
requirements of cybercrime prosecution and adjudication.
The designation of special cybercrime courts of course is not outside our
power to undertake: Section 21 56 of the Cybercrime Law grants the Regional
Trial Courts jurisdiction over any violation of the Cybercrime Law, and
provides that special cybercrime courts manned by specially trained judges
should be designated. Section 5, Article VIII of the 1987 Constitution, 57 on the
other hand, empowers this Court to promulgate rules on the pleading,
practice, and procedure in all courts. SITCEA

As with every petition involving the constitutionality of a law, we seek to find

the proper balance between protecting a society where each individual may
lawfully enjoy his or her fundamental freedoms, and where the safety and
security of the members of society are assured through proper regulation
and enforcement. In the present petition, I agree with the ponencia that the
Cybercrime Law is improperly tilted towards strengthening law enforcement,
to the detriment of our society's fundamental right to privacy. This is
highlighted by the law's position under Section 12 which, as discussed, goes
beyond what is constitutionally permissible. Beyond this finding, however,
we need to provide within the limits of our judicial power, remedies that
will still allow effective law enforcement in the cyber world. It is in these lights
that I urge my colleagues in this Court to consider the immediate training
and designation of specialized cybercrime courts and the drafting of their
own rules of procedure.
As I mentioned in the opening statements of this Concurring Opinion, I have
prepared a table for easy reference to my votes. This table is attached as
Annex "A" and is made an integral part this Opinion.
Annex A Submitted Votes and Explanation on Cybercrime J. Arturo D. Brion
Cybercrime Law provision J. Brion's Vote and Explanation

Section 4 (a) (1) penalizing illegal Constitutional - concur with the ponencia
access as a cybercrime offense.
According to the petitioners, Section 4 (a) (1)
Illegal access is defined as "[t]he
fails
the strict scrutiny test because it is not
access to the whole or any part of a
narrowly
computer system without a right." fitted to exclude the ethical hacker, who hack
computer systems to test its vulnerability to
threats.

What Section 4 (a) (1) penalizes is harmful


Section 4 (a) (3) penalizes data
interference which is defined as
"[t]he intentional or reckless
alteration, damaging, deletion or
deterioration of computer data,
electronic document, or electronic
data message, without right,
including the introduction or
transmission of viruses."
conduct
in the Internet. It does not infringe upon the
exercise of
fundamental rights, and hence does not trigger
a facial
examination and the strict scrutiny of Section 4
(a) (1).
Even assuming that the strict scrutiny test
applies,
what the law punishes is the act of
accessing a
computer WITHOUT RIGHT; this excludes
the
ethical hacker who has been presumably
contracted
by the owner of the computer systems.
Constitutional - concur with the ponencia
What Section 4 (a) (3) penalizes is harmful
conduct
in the Internet. It does not infringe upon the
exercise of
fundamental rights, and hence does not trigger
a facial
examination and the strict scrutiny of Section 4
(a) (3).
Even if a facial examination of Section 4 (a) (3)
is
warranted, the petitioners failed to show
sufficient
reason for the law's unconstitutionality.
Contrary to
the petitioners' claim, this provision does not
suffer
from overbreadth. As elucidated by the
ponencia, all

Section 4 (a) (6) punishes
cyber-
squatting which is defined as
"[t]he acquisition of domain
name
the over internet in bad faith to
profit, mislead, destroy the
reputation, and deprive others
from
registering the same, if such a
domain name is:
(i) Similar, identical, or
confusingly similar to an
existing trademark
registered with the appropriate
government agency at the
time of the domain name
registration;
penal laws have an inherent chilling effect or
the fear
of possible prosecution. To prevent the state
from
legislating criminal laws because they instill
this kind
of fear is to render the state powerless to
penalize a
socially harmful conduct. Moreover, this
provision
clearly describes the evil that it seeks to
punish.
Constitutional - concur with the ponencia
Petitioners contend that Section 4 (a) (6)
-
violates
the equal protection clause because a user
using
his real name will suffer the same fate as
those
who use aliases or take the name of
another in
satire, parody or any other literary device.
The law would be punishing both a person
who
registers a name in satire and the person
who uses
this name as it is his real name.
Section 4 (a) (6) does not violate the equal
protection
clause because it appears to exclude the
situation that
the petitioners fear. The law punishes the bad
faith use
of a domain name; there can be no bad faith if
 the
person registering the domain name uses his
own name.
(ii) Identical or in any way
similar with the name of a
person other than the
registrant, in case of a
personal name; and

(iii) Acquired without right or

with intellectual property
interests in it."

Section 4 (b) (3) which penalizes Constitutional - concur with the ponencia
identity-theft, defined as "[t]he
What Section 4 (b) (3) penalizes is harmful
intentional acquisition, use, misuse,
conduct
in the Internet. It does not infringe upon the
transfer, possession, alteration, or
exercise
of fundamental rights, and hence does not
deletion of identifying information
trigger a
facial examination and the strict scrutiny of
belonging to another, whether
Section
4 (b)
natural or juridical, without right."
(3).

Even assuming that a facial examination

may be
conducted, the petitioners failed to show
how the
government's effort to curb this crime
violates the
right to privacy and correspondence, and
the right
to due process of law.

According to the ponencia, the overbreadth

doctrine
does not apply because there is no

Section 4 (c) (1) penalizing
cybersex, i.e., "the willful
engagement, maintenance, control,
or operation, directly or indirectly,
of any lascivious exhibition of
sexual organs or sexual activity,
with the aid of a computer system, (1)
for favor or consideration".
restriction on the
freedom of speech. What this provision
regulates are
specific actions: the acquisition, use, misuse or
deletion
of personal identifying data of another.
Moreover, there
is no fundamental right to acquire another's
personal
data.
This provision does not violate the freedom
of the
press. Journalists would not be prevented
from
accessing a person's unrestricted user
account in
order to secure information about him. This
is not
the essence of identity theft that the law seeks
to punish.
The theft of identity information must be
intended for an
illegitimate purpose. Moreover, acquiring and
disseminating information made public by the
user
himself cannot be regarded as a form of theft.
Constitutional - concur with the ponencia
Obscene speech is not protected speech, and
thus does
not trigger the strict scrutiny test for content-
based
regulations. Cybersex is defined as:
Cybersex. The willful engagement,
maintenance,
control, or operation, directly or indirectly,

Section 4 (c) (2) penalizing child
pornography as defined in
Republic Act No. 9975 (RA 9975)
or the Anti-Child Pornography
Act of 2009 when committed
through computer systems
Section 4 (c) (3). Unsolicited
commercial communications,
punishes the act of transmitting
commercial electronic
communications which seek to
advertise, sell or offer for sale
products and services (SPAM)
of any
lascivious exhibition of sexual organs or
sexual
activity, with the aid of a computer system,
for
favor or consideration.
The qualification that the exhibition be
'lascivious'
takes it outside the protective mantle of free
speech.
Constitutional - concur with the ponencia
According to the ponencia, this provision
merely
expanded the scope of RA 9975 (The Anti-Child
Pornography Act of 2009). The resulting
penalty
increase is the legislature's prerogative.
Moreover, the
potential for uncontrolled proliferation of a
pornographic material when uploaded in the
cyberspace
is incalculable. There is thus a rational basis for
a
higher penalty.
Unconstitutional for infringing on
commercial
speech
.
According to the ponencia, SPAM is a legitimate
form of expression, i.e., commercial speech,
which
is still entitled to protection even if at a lower
level.
The government failed to present basis to hold
that
 SPAM reduces the efficiency of computers,
which is
allegedly the reason for punishing the act of
transmitting
them.

I do not agree with the ponencia's argument

that
Section 4 (c) (3) should be declared
unconstitutional
because it denies a person the right to read his
emails.
Whether a person would be receiving SPAM is
not a
certainty; neither is it a right.

Constitutional, but the other provisions of

Section 4 (c) (4) application of
the
Cybercrime Law that qualify cyber-libel
libel articles of Articles 353, 354,
should all
be declared unconstitutional for unduly
361 and 362 of the Revised Penal
increasing
the prohibitive effect of the libel law on
Code when committed through a
speech. The
prohibitive effect encourages self-
computer system
censorship and
creates a chilling effect on speech

I concur with J. Carpio in declaring Article 354

of the
Revised Penal Code unconstitutional in so far
as it
cyber-libel involving public officers and public
figures.
Section 7 of the Cybercrime Law is likewise
unconstitutional insofar as it applies to cyber-
libel.

The 'presumed malice' found in Article

 354,
in relation to Articles 361 and 362 of
the
Revised Penal Code (which the
Cybercrime
Act adopted) is contrary to subsequent
US
rulings on freedom of speech which
have
been transplanted when the
Philippines
adopted the Bill of Rights under the
1935,
1973 and 1987 Constitutions. He noted
that
the RPC was enacted in 1930, before
the
adoption of a Bill of Rights under the
1935
Constitution. Since then, jurisprudence
has
developed to apply the 'actual malice'
rule
against public officials.

It is the duty of this Court to strike

down
Article 354, insofar as it applies the
presumed malice rule to public officers
and
public figures.

Section 4 (c) (4) of the Cybercrime Law,

which adopted the definition of libel in
the
Revised Penal Code, and added only
another
means by which libel may be
committed.
 Thus, for purposes of double jeopardy
analysis, Section 4 (c) (4) and Article 353
of the RPC define and penalize the
same
offense of libel

Further, Section 7 also offends the Free

Speech clause by assuring multiple
prosecutions of those who fall under
the
ambit of Section 4 (c) (4). The spectre
of
multiple trials and sentencing, even
after a
conviction under the Cybercrime Law,
creates a significant and not merely
incidental chill on online speech.

- the application of Section 6 (which increases

its
penalty) of the Cybercrime Law to libel, should,
as CJ
Sereno pointed out, be declared
unconstitutional
(discussed below)

- the application of Section 5, in so far as it

applies to
cyberlibel, should be declared as
unconstitutional
(discussed below)

Unconstitutional - concur with the

Section 5 on aiding or abetting and
ponencia. It is
unconstitutional in so far as it applies to
attempt in the commission of
unsolicited
commercial communications, cyberlibel
cybercrimes
and child
pornography committed online.
 According to the ponencia, Section 5 is
unconstitutional
in so far as it applies to unsolicited commercial
communications, cyberlibel and child
pornography
committed online

The law has not provided reasonably clear

guidelines
for the law enforcement authorities and the
trier of
facts to prevent their arbitrary and
discriminatory
enforcement. This vagueness in the law creates
a
chilling effect on free speech in cyberspace.

For example, it is not clear from the wording of

the
law whether the act of 'liking' or 'commenting'
on a
libelous article shared through a social
networking site
constitutes aiding or abetting in cyberlibel.

As regards aiding or abetting child

pornography, the
law is vague because it could also punish an
internet
service provider or plain user of a computer
service who
are not acting together with the author of the
child
pornography material online.

Unconstitutional - concurs with CJ Sereno, it

Section 6, which provides that all
is
crimes penalized by the Revised unconstitutional in so far as it increases the

Penal Code, and special laws, if
committed by, through and with
the use of information and
communications technologies
shall be covered by RA 10175.
It further states that the imposable
penalty shall be one degree
higher
than that provided for by the
Revised Penal Code, and
special laws.
Section 7, which provides that "[a] Unconstitutional concur with the
penalty
for cyber-libel one degree higher.
According to CJ Sereno, Section 6 creates an
additional
in terrorem effect on top of that already
created by
Article 355 of the RPC:
1) The increase in penalty also results in the
imposition of harsher accessory penalties
2) The increase in penalty neutralizes the full
benefits of the Law on probation.
Effectively
threatening the public with the guaranteed
imposition of imprisonment and its
accessory
penalties
It appears that Section 6 increases the
3)
prescription
periods for the crime of cyberlibel and for
its
penalty to fifteen years
ICT as a qualifying aggravating
4)
circumstance
cannot be offset by any mitigating
circumstances
For providing that the use of ICT per se, even
without
malicious intent, aggravates the crime of libel,
Section 6
is seriously flawed and burdens free speech.
 ponencia and
Justice Carpio, unconstitutional insofar as it
prosecution under this Act shall be
applies
without prejudice to any liability for to cyberlibel and child pornography
violation of any provision of the
Revised Penal Code, as amended or According to Justice Carpio, Section 7 is
unconstitutional in so far as it applies to libel
special laws."
because
it assures multiple prosecutions of those who
fall
under the ambit of Section 4 (c) (4). The spectre
of
multiple trials and sentencing, even after a
conviction
under the Cybercrime Law, creates a significant
and
not merely incidental chill on online speech.

Further, Section 4 (c) (4) of the Cybercrime Law,

which
adopted the definition of libel in the Revised
Penal
Code, only added another means by which libel
is
committed. Thus, for purposes of double
jeopardy
analysis, Section 4 (c) (4) and Article 353 of the
RPC
define and penalize the same offense of libel

The same reasoning applies for striking down

as
unconstitutional the application of Section 7 to
Section 4 (c) (2) or child pornography. It merely
expands the Anti-Child Pornography Act's
scope to
include identical activities in cyberspace.

Section 8, which provides for Constitutional concur with the ponencia

penalties for the cybercrimes
committed under the Cybercrime
Law
Section 12 on the real time
collection and recording of
traffic data
According to the ponencia, it is the legislature's
prerogative to fix penalties for the commission
of
crimes. The penalties in Section 8 appear
proportionate
to the evil sought to be punished
Unconstitutional because it violates the
right to
privac
y.
While traffic data per se does not raise any
reasonable
expectation of privacy, the lack of standards in
Section
12 in effect allows the real time collection and
recording
of traffic data of online activities and content
data.
Content data is indisputably private
information. The
collection of traffic data, over time, yields
information
that the internet user considers to be private.
Thus,
Section 12 suffers from vagueness and
overbreadth that
renders it unconstitutional.
This ruling does not totally disallow the real-
time
collection and recording of traffic data. Until
Congress
enacts a law that provides sufficient standards
for the
warrantless real-time collection of traffic data,
this may
 still be performed by law enforcement
authorities,
subject to a judicial warrant.

Section 13, which requires Internet Constitutional concur with the ponencia
Service providers to retain traffic
The petitioners argued that Section 13
data and subscriber data for a
constitutes an
undue deprivation of the right to property. The
period of 6 months; and for ISPs to
data
preservation order is a form of garnishment of
retain content data upon order
personal
property in civil forfeiture proceedings, as it
from law enforcement agents
prevents
internet users from accessing and disposing of
traffic
data that essentially belong to them.

The ponencia maintained that there was no

undue
deprivation of property because the user has
the
obligation to keep a copy of his data, and the
service
provider has never assumed responsibility for
the data's
loss or deletion while in its keep.

Further, the data that service providers

preserve are not
made inaccessible to users by reason of the
issuance of
the preservation order. The process of
preserving the
data will not unduly hamper the normal
transmission
or use of these data.

Section 14 on Disclosure of Constitutional concur with the ponencia

Computer Data, which provides
that "[l]aw enforcement authorities, The petitioners argued that it is beyond the law
upon securing a court warrant,
shall issue an order requiring
any person or service provider
to disclose or submit
subscriber's information, traffic
data or relevant data in his/its
possession or control within
seventy-two (72) hours from
receipt of the order in relation
to a valid complaint officially
docketed and assigned for
investigation and the disclosure is and seizure, nor would it violate the privacy of
necessary and relevant for the
purpose of investigation."
Section 15 provides that the law
enforcement authorities shall
have the following powers and
duties in enforcing a search
and seizure warrant:
(a) To conduct interception;
enforcement authorities' power to issue
subpoenas.
They asserted that issuance of subpoenas is a
judicial
functio
n.
The ponencia clarified that the power to issue
subpoenas
is not exclusively a judicial function. Executive
agencies
have the power to issue subpoenas as part of
their
investigatory powers. Further, what Section
14
envisions is merely the enforcement of a
duly-
issued court warrant. The prescribed
procedure for
disclosure would not constitute an unlawful
search
communications and correspondence.
Disclosure can
be made only after judicial intervention.
Constitutional concur with the ponencia
As the ponencia explained, Section 15 does not
supplant, but merely supplements, the
established
search and seizure procedures. It merely
enumerates
the duties of law enforcement authorities that
would
ensure the proper collection, preservation, and
use of

(b) To secure a computer system
or a computer data storage
medium;
computer system or data that have been
seized by
virtue of a court warrant. The exercise of these
duties
does not pose any threat on the rights of the
person
from whom they were taken.

(c) To make and retain a copy of

those computer data secured;

(d) To maintain the integrity of

the relevant stored computer
data;

(e) To conduct forensic analysis

or examination of the
computer
data storage medium; and

(f) To render inaccessible or

remove those computer data in
the accessed computer or
computer and communications
network.

Furthermore, the law enforcement

authorities may order any person
who has knowledge about the
functioning of the computer system
and the measures to protect and
preserve the computer data therein
to provide, as is reasonable, the
necessary information, to enable
the undertaking of the search,
seizure and examination.

Section 17 provides that "[u]pon Constitutional concur with the ponencia

expiration of the periods as
 According to the ponencia, Section 17 does not
provided in Sections 13 and 15,
amount
to deprivation of property without due
service providers and law
process. The
user has no demandable right to require the
enforcement authorities, as the
service
provider to have the copy of data saved
case may be, shall immediately
indefinitely for
him in its storage system. He should have
and completely destroy the
saved them
in his computer if he wanted them preserved.
computer data subject of a
He could
also request the service provider for a copy
preservation and examination."
before it is
deleted
.

Unconstitutional partially concur with

Section 19 empowering the
the ponencia
in holding Section 19 unconstitutional
Department of Justice (DOJ)
because it
Secretary to restrict or block access restricts freedom of speech
to computer data when it is found
According to the ponencia, the content of the
to have prima facie violated the
computer
data can also constitute speech. Section 19
provisions of the Cybercrime Law
constitutes
an undue restraint on free speech because it
allows the
DOJ Secretary to block access to computer data
only
upon a prima facie finding that it violates the
Cybercrime Act. Thus, it disregards established
jurisprudence on the evaluation of restraints
on free
speech, i.e., the dangerous tendency doctrine,
the
balancing of interest test, and the clear and
present

Section 20, which provides that
non-compliance with the orders
from the law enforcement
authorities
shall be punished as a violation of
Presidential Decree No. 1829 (PD
1829) (Obstruction of Justice
Law).
Section 24 on the creation of a
Cybercrime Investigation and
Coordinating Center (CICC); and
Section 26 (a) on CICC's Powers
and Functions
danger rule
Constitutional concur with the ponencia
According to the ponencia, Section 20 is not a
bill of
attainder; it necessarily incorporates the
elements of
the offense of PD 1829. The act of non-
compliance
must still be done knowingly or willfully. There
must still be a judicial determination of guilt.
Constitutional - concur with the ponencia
The petitioners contended that the legislature
invalidly
delegated the power to formulate a national
cybersecurity plan to the CICC.
The ponencia ruled that there is no invalid
delegation of
legislative power for the following reasons:
The cybercrime law is complete in
(1)
itself. The law
gave sufficient standards for the CICC
to follow
when it provided for the definition of
cyber-
security. This definition serves as the
parameters
within which CICC should work in
formulating
the cyber-security plan.
The formulation of the cyber-security
(2)
plan is
consistent with the policy of the law to
 prevent and
combat such cyber-offenses by
facilitating their
detection, investigation and
prosecution at both
the domestic and international levels,
and by
providing arrangements for fast and
reliable
international cooperation.

LEONEN, J., dissenting and concurring:

Most of the challenges to the constitutionality of some provisions of the

Cybercrime Prevention Act of 2012 (Republic Act No. 10175) are raised
without an actual case or controversy. Thus, the consolidated petitions
should fail except for those that raise questions that involve the imminent
possibility that the constitutional guarantees to freedom of expression will be
stifled because of the broadness of the scope of the text of the provision. In
view of the primacy of this fundamental right, judicial review of the statute
itself, even absent an actual case, is viable.
With this approach, I am of the opinion that the constitution requires that
libel as presently contained in the Revised Penal Code and as reenacted in
the Cybercrime Prevention Act of 2012 (Rep. Act No. 10175) be struck down
as infringing upon the guarantee of freedom of expression provided in
Article III, Section 4 of our Constitution. I am also of the firm view that the
provisions on cybersex as well as the provisions increasing the penalties of
all crimes committed with the use of computers are unconstitutional. The
provision limiting unsolicited commercial communications should survive
facial review and should not be declared as unconstitutional.
I concur with the majority insofar as they declare that the "take down" clause,
the provision allowing dual prosecutions of all cybercrimes, and the provision
that broadly allows warrantless searches and seizures of traffic data, are
unconstitutional. This is mainly because these present unwarranted chilling
effects on the guaranteed and fundamental rights of expression.
I
 Framework of this Opinion
Reality can become far richer and more complex than our collective ability to
imagine and predict. Thus, conscious and deliberate restraint at times
may be the better part of judicial wisdom.
The judiciary's constitutionally mandated role is to interpret and apply the
law. It is not to create or amend law on the basis of speculative facts which
have not yet happened and which have not yet fully ripened into clear
breaches of legally demandable rights or obligations. Without facts that
present an actual controversy, our inquiry will be roving and unlimited. We
substitute our ability to predict for the rigor required by issues properly
shaped in adversarial argument of the real. We become oracles rather than a
court of law.
This is especially so when the law is made to apply in an environment of
rapidly evolving technologies that have deep and far-reaching consequences
on human expression, interaction, and relationships. The internet creates
communities which virtually cross cultures, creating cosmopolitarian actors
present in so many ways and in platforms that we are yet starting to
understand.
Petitioners came to this court via several petitions for certiorari and/or
prohibition under Rule 65 of the Rules of Court. They seek to declare certain
provisions of Rep. Act No. 10175 or the Cybercrime Prevention Act of 2012 1
as unconstitutional. They allege grave abuse of discretion on the part of
Congress. They invoke our power of judicial review on the basis of the textual
provisions of the statute in question, their reading of provisions of the
Constitution, and their speculation of facts that have not happened may or
may not happen in the context of one of the many technologies available
and evolving in cyberspace. They ask us to choose the most evil among the
many possible but still ambiguous future factual permutations and on that
basis declare provisions not yet implemented by the Executive or affecting
rights in the concrete as unconstitutional. In effect, they ask us to do what
the Constitution has not even granted to the President: a provision-by-
provision veto in the guise of their interpretation of judicial review.
Although pleaded, it is difficult to assess whether there was grave abuse of
discretion on the part of the Executive. This court issued a temporary
restraining order to even proceed with the drafting of the implementing
rules. There has been no execution of any of the provisions of the law.
This is facial review in its most concrete form. We are asked to render a pre-
enforcement advisory opinion of a criminal statute. Generally, this cannot be
done if we are to be faithful to the design of our Constitution.
HEacDA

The only instance when a facial review is permissible is when there is a clear
showing that the provisions are too broad under any reasonable reading that
it imminently threatens expression. In these cases, there must be more of a
showing than simply the in terrorem effect of a criminal statute. It must
clearly and convincingly show that there can be no determinable standards
that can guide interpretation. Freedom of expression enjoys a primordial
status in the scheme of our basic rights. It is fundamental to the concept of
the people as sovereign. Any law regardless of stage of implementation
that allows vague and unlimited latitude for law enforcers to do prior
restraints on speech must be struck down on its face.
This is the framework taken by this opinion.
The discussion in this dissenting and concurring opinion is presented in the
following order:
1. Justiciability
2. The Complexity of the Internet and the Context of the Law
3. The Doctrine of Overbreadth and the Internet
4. Take Down Clause
5. Libel Clauses
6. Cybersex Provisions
7. Speech Component in the Collection of Traffic Data
8. Commercial Speech
I (A)
Justiciability
Judicial review the power to declare a law, ordinance, or treaty as
unconstitutional or invalid is inherent in judicial power. 2 It includes the
power to "settle actual controversies involving rights which are legally
demandable" 3 and "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on any part of
any branch or instrumentality of Government." 4 The second aspect of
judicial review articulated in the 1987 Constitution nuances the political
question doctrine. 5 It is not licensed to do away with the requirements of
justiciability.
The general rule is still that: "the constitutionality of a statute will be passed
on only if, and to the extent that, it is directly and necessarily involved in a
justiciable controversy and is essential to the protection of the rights of the
parties concerned." 6 Justiciability on the other hand requires that: (a) there
must be an actual case or controversy involving legal rights that are capable of
judicial determination; (b) the parties raising the issue must have standing or
locus standi to raise the constitutional issue; (c) the constitutionality must be
raised at the earliest possible opportunity, thus ripe for adjudication; and (d)
the constitutionality must be the very lis mota of the case, or the
constitutionality must be essential to the disposition of the case. 7
It is essential that there be an actual case or controversy. 8 "There must be
existing conflicts ripe for judicial determination not conjectural or
anticipatory. Otherwise, the decision of the Court will amount to an advisory
opinion." 9
In Information Technology Foundation of the Phils. v. COMELEC, 10 this court
described the standard, within which to ascertain the existence of an actual
case or controversy:
It is well-established in this jurisdiction that ". . . for a court to
exercise its power of adjudication, there must be an actual case or
controversy one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution;
the case must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of justice. . . .
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging." The
controversy must be justiciable definite and concrete, touching
on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic
 assertion of a legal right, on the one hand, and a denial thereof
on the other; that is, it must concern a real and not a merely
theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts. 11
(Citations omitted, emphasis supplied)

In Lozano v. Nograles, 12 this court also dismissed the petitions to nullify

House Resolution No. 1109 or "A Resolution Calling upon the Members of
Congress to Convene for the Purpose of Considering Proposals to Amend or
Revise the Constitution, Upon a Three-fourths Vote of All the Members of
Congress." In dismissing the petitions, this court held:
It is well settled that it is the duty of the judiciary to say what the
law is. The determination of the nature, scope and extent of the
powers of government is the exclusive province of the judiciary,
such that any mediation on the part of the latter for the allocation
of constitutional boundaries would amount, not to its supremacy,
but to its mere fulfillment of its "solemn and sacred obligation"
under the Constitution. This Court's power of review may be
awesome, but it is limited to actual cases and controversies dealing
with parties having adversely legal claims, to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. The
"case-or-controversy" requirement bans this court from deciding
"abstract, hypothetical or contingent questions," lest the court
give opinions in the nature of advice concerning legislative or
executive action." (Emphasis supplied) 13

Then, citing the classic words in Angara v. Electoral Commission: 14

Any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
 expressed through their representatives in the executive and
legislative departments of the government. 15 (Citations omitted)

In Republic of the Philippines v. Herminio Harry Roque et al., 16 this court ruled
in favor of the petitioner and dismissed the petitions for declaratory relief
filed by respondents before the Quezon City Regional Trial Court against
certain provisions of the Human Security Act. In that case, the court
discussed the necessity of the requirement of an actual case or controversy:
Pertinently, a justiciable controversy refers to an existing case or
controversy that is appropriate or ripe for judicial determination, not
one that is conjectural or merely anticipatory. Corollary thereto, by
"ripening seeds" it is meant, not that sufficient accrued facts may
be dispensed with, but that a dispute may be tried at its inception
before it has accumulated the asperity, distemper, animosity,
passion, and violence of a full blown battle that looms ahead. The
concept describes a state of facts indicating imminent and inevitable
litigation provided that the issue is not settled and stabilized by
tranquilizing declaration.
A perusal of private respondents' petition for declaratory relief
would show that they have failed to demonstrate how they are left
to sustain or are in immediate danger to sustain some direct injury
as a result of the enforcement of the assailed provisions of RA 9372.
Not far removed from the factual milieu in the Southern Hemisphere
cases, private respondents only assert general interests as citizens,
and taxpayers and infractions which the government could
prospectively commit if the enforcement of the said law would
remain untrammeled. As their petition would disclose, private
respondents' fear of prosecution was solely based on remarks of
certain government officials which were addressed to the general
public. They, however, failed to show how these remarks tended
towards any prosecutorial or governmental action geared towards
the implementation of RA 9372 against them. In other words, there
was no particular, real or imminent threat to any of them." 17
(Emphasis supplied)

Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

Council: 18
 Without any justiciable controversy, the petitions have become pleas
for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are
merely theorized, lie beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does not
avail to take the present petitions out of the realm of the surreal
and merely imagined. Such possibility is not peculiar to RA 9372
since the exercise of any power granted by law may be abused.
Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights which are
legally demandable and enforceable. (Emphasis supplied; citations
omitted) 19

None of the petitioners in this case have been charged of any offense arising
from the law being challenged for having committed any act which they have
committed or are about to commit. No private party or any agency of
government has invoked any of the statutory provisions in question against
any of the petitioners. The invocations of the various constitutional
provisions cited in petitions are in the abstract. Generally, petitioners have
ardently argued possible applications of statutory provisions to be invoked
for future but theoretical state of facts.
The blanket prayer of assailing the validity of the provisions cannot be
allowed without the proper factual bases emanating from an actual case or
controversy.
II
The Complexity of the Internet
and the Context of the Law
This is especially so when the milieu is cyberspace.
The internet or cyberspace is a complex phenomenon. It has pervasive
effects and are, by now, ubiquitous in many communities. Its possibilities for
reordering human relationships are limited only by the state of its constantly
evolving technologies and the designs of various user interfaces. The internet
contains exciting potentials as well as pernicious dangers.
The essential framework for governance of the parts of cyberspace that have
reasonable connections with our territory and our people should find
definite references in our Constitution. However, effective governance of
cyberspace requires cooperation and harmonization with other approaches
in other jurisdictions. Certainly, its scope and continuous evolution require
that we calibrate our constitutional doctrines carefully: in concrete steps and
with full and deeper understanding of incidents that involve various parts of
this phenomenon. The internet is neither just one relationship nor is it a
single technology. It is an interrelationship of many technologies and
cultures.
An overview may be necessary if only to show that judicial pre-enforcement
review or a facial evaluation of only the statute in question may be
inadvisable. Cases that involve cyberspace are the paradigmatic examples
where courts should do an evaluation of enshrined constitutional rights only
in the context of real and actual controversies.
II (A)
A "Network of Networks" 20
The very concept of an "internet" envisions pervasiveness. The first recorded
description of the interactions that would come to typify the internet was
contained in a series of memos in August 1962 by J.C.R. Licklider. In these
memos, the pioneering head of the computer research program at the
United States Department of Defense's Advanced Research Projects Agency
(ARPA) discussed his concept of a "Galactic Network." 21
The term "internet" is an abbreviation for "inter-networking." 22 It refers to a
"combination of networks that communicate between themselves." 23 A
"network" pertains to the interconnection of several distinct components. To
speak of an "internet" is, therefore, to speak of the interconnection of
interconnections. Thus, "[t]he Internet today is a widespread information
infrastructure." 24 It is "at once a world-wide broadcasting capability, a
mechanism for information dissemination, and a medium for collaboration
and interaction between individuals and their computers without regard for
geographic location." 25
The internet grew from ARPA's ARPANet. It took off from the revolutionary
concept of packet-switching as opposed to circuit switching. Packet switching
eliminated the need for connecting at the circuit level where individual bits of
data are passed synchronously along an end-to-end circuit between two end
locations. Instead, packet switching allowed for the partitioning of data into
packets, which are then transmitted individually and independently, even
through varying and disjointed paths. The packets are then reassembled in
their destination. 26 At any given microsecond, without our jurisdiction,
complete content may be sent from any computer connected by wire or
wirelessly to the internet. At the same time, there can be small parts or
packets of information passing through other computers destined to be
reassembled in a requesting computer somewhere in this planet.
Packet switching requires that "open architecture networking" be the
underlying technical foundation of the internet. Separately designed and
developed networks are connected to each other. Each of these participating
networks may have its own unique interfaces that it offers to its users. Every
user in each of these separate but participating networks, however, remains
connected to each other. 27
This open-architecture network environment in turn requires a
communications protocol that allows a uniform way of joining different
networks. 28 Developed in 1973, this protocol eventually came to be known
as the Transmission Control Protocol/Internet Protocol (TCP/IP). 29 "The
Internet Protocol (IP) sets how data is broken down into chunks for
transmission, as well as how the source and destination addresses are
specified." 30
To identify connected devices, each device on the internet is assigned a
unique address in the form of a "dotted quad," otherwise known as the IP
address (100.962.28.27). These IP addresses are used to route data packets
to their respective destinations. 31 There are a finite number of IP addresses
available. With the growth of the internet beyond all expectations, the
expansion of available IP addresses became imperative. There is now an
ongoing effort to shift from IP version 4 (IPv4) to IP version 6 (Ipv6). From a
communication protocol that allows for roughly 4.3 billion unique addresses,
the new version will allow for 2 unique addresses. Written in ordinary
decimal form, this number is 39 digits long. 32AHcDEI
TCP/IP addressed the need for connected devices to have a unique
identification and designation. But, to make these addresses accessible and
readable to its human users, "domain names" were introduced. Internet
addresses are now also written as "domain names" under what is known as
the Domain Name System (DNS)." 33 The internet address of this court is
thus: sc.judiciary.gov.ph.
The allocation of unique identifiers for the internet, such as IP addresses and
domain names, is administered not by a public 34 entity but by a nonprofit
public benefit corporation based in the United States of America: the Internet
Corporation for Assigned Names and Numbers (ICANN). ICANN allocates IP
addresses and "administers the DNS through delegated authority to domain
name registries." 35 These registries consist of databases of all domain
names registered in generic top level domains (gTLD), such as .com, .org, .gov
and country code top level domains (ccTLD), such as .ph and .sg. 36
II (B)
Openness and the World Wide Web
In 1989, Tim Berners-Lee of the European Organization for Nuclear Research
(CERN) developed the World Wide Web (WWW). The World Wide Web
"allowed documents, or pages, to link to other documents stored across a
network." 37 Together with electronic mail (email), the World Wide Web has
been the "driving force" of the internet. 38 The World Wide Web provided the
impetus for others to develop software called "browsers," which allowed the
user to navigate access to content as well as to exchange information
through "web pages." Information can be carried through different media.
Thus, text can be combined with pictures, audio, and video. These media can
likewise be "hyperlinked" or marked so that it could provide easy access to
other pages containing related information.
This new form of interface hastened the Internet's environment of openness.
39 It is this openness and the innovation it continuously engendered that
enabled the internet to eclipse networks built around appliances connected
or tethered to specific proprietary infrastructure such as America Online and
CompuServe. 40 It is this openness that enabled the internet to become the
present-day "widespread information infrastructure" 41 or universal "network
of networks." 42
Today, the use of the internet and its prevalence are not only inevitable facts,
these are also escalating phenomena. By the end of 2011, it was estimated
that some 2.3 billion individuals, or more than one-third of the world's
population, had access to the internet. 43 The use of the internet is inevitably
bound to increase as wireless or mobile broadband services become more
affordable and available. By 2015, the estimates are that the extent of global
internet users will rise to nearly two-thirds of the world's population. 44
II (C)
The Inevitability of Use and Increasing
Dependency on the Internet
Contemporary developments also challenge the nature of internet use. No
longer are we confined to a desktop computer to access information on the
internet. There are more mobile and wireless broadband subscriptions. As of
2011, the number of networked devices 45 has exceeded the global
population. By 2020, this disparity of connected devices as opposed to
connected individuals is expected to escalate to a ratio of six to one. 46 Today,
individuals may have all or a combination of a desktop, a mobile laptop, a
tablet, several smart mobile phones, a smart television, and a version of an
Xbox or a PlayStation or gaming devices that may connect to the internet. It
is now common to find homes with Wi-Fi routers having broadband
connection to the internet.
This reality has increased the density of communication among individuals. A
July 2011 study reported that every day, 294 billion electronic mails (emails)
and 5 billion phone messages are exchanged worldwide. 47 Another survey
yielded the following: 48
Global Philippines

Percentage of respondents who said they access the

89% 78%
Internet
many or several times a day

Percentage of respondents who used e-mail at least once a

87% 79%
day

Percentage of respondents who used social media at least 60% 72%

once
a day

Percentage of respondents who used instant messaging at

43% 51%
least
once a day
The accelerating rate of increase of internet users is relevant to developing
countries like the Philippines. Reports reveal that, as of 2011, "[i]nternet user
growth was higher in developing (16 per cent) than developed (5 per cent)
countries." 49 Thus, "[i]nternet user penetration rates in developing countries
have tripled over the past five years, and the developing countries' share of
the world's total number of Internet users has increased, from 44 per cent in
2006 to 62 per cent in 2011." 50 Consistent with this accelerating trend, the
internet-user penetration rate for developing countries stood at 24% at the
end of 2011; the estimates are that this will double by 2015. 51 There are
more citizens in developing countries using the internet. The share, in
internet traffic, by developing countries, has also increased as compared with
developed countries.
The attitude of users shows a marked trend towards dependence. A survey
showed that the internet is viewed by its users as playing a positive role; not
only for individual lives but also for society at large. Moreover, the internet
has come to be perceived as somewhat of an imperative. Of its many
findings, the following data from the 2012 Global Internet Survey are
particularly notable: 52
Percentage of Percentage of
respondents
respondents who
who
agreed or
agreed or agreed
agreed
strongly strongly
(GLOBAL) (PHILIPPINES)

The Internet does more to help society than

83% 91%
it does to
hurt it
Their lives have improved due to using the
85% 93%
Internet

The Internet is essential to their knowledge

89% 96%
and
education

The Internet can play a significant role in:

Increasing global trade and

1. 81% 95%
economic
relationships among countries

Achieving universal primary

2 76% 91%
school education

3 Promoting gender equality 70% 89%

4 Protecting the environment 74% 92%

Helping to combat serious

5 72% 92%
diseases

Eliminating extreme poverty and

6 61% 75%
hunger

7 Improving maternal health 65% 84%

8 Reducing child mortality 63% 80%

Improving emergency response

9 77% 92%
and
assistance during natural
disasters

Preventing the trafficking of

10 69% 84%
women and
children
 Improving the quality of
11 80% 95%
education

Improving social problems by

12 76% 93%
increasing
communication between and
among
various groups in society

Reducing rural and remote

13 80% 96%
community
isolation

Keeping local experts in or

14 75% 94%
bringing
experts back to their country
because they
can use technology to create
business

Of more pronounced legal significance are the following findings: 53

Percentage of Percentage of
respondents who respondents who
agreed or agreed agreed or agreed
strongly strongly
(GLOBAL) (PHILIPPINES)

The Internet should be considered a basic

83% 88%
human right

Their respective governments have an

80% 85%
obligation to
ensure that they have the opportunity to
access the
Internet
Freedom of expression should be
86% 86%
guaranteed on the
Internet

Services such as social media enhance their

80% 91%
right to
peaceful assembly and association
The relationship of Internet use and growth in the economy has likewise
been established. The significance of the Internet is as real as it is perceived,
thus:
Research by the World Bank suggests that a 10% increase in Broadband
penetration could boost GDP by 1.38% in low- and middle-income countries."
54 More specifically, it cited that, in the Philippines, "[m]obile Broadband
adoption was found to contribute an annual 0.32% of GDP, [representing]
6.9% of all GDP growth for the economy during the past decade. 55 STECAc

II (D)
The Dangers in the Internet
While the Internet has engendered innovation and growth, it has also
engendered new types of disruption. A noted expert employs an
"evolutionary metaphor" as he asserts:
[Generative technologies] encourage mutations, branchings away
from the status quo some that are curious dead ends, others that
spread like wildfire. They invite disruption along with the good
things and bad things that can come with such disruption. 56

Addressing the implications of disruption, he adds:

Disruption benefits some while others lose, and the power of the
generative Internet, available to anyone with a modicum of
knowledge and a broadband connection, can be turned to network-
destroying ends. . . . [T]he Internet's very generativity combined
with that of the PCs attached sows the seeds for a "digital Pearl
Harbor." 57

The Internet is an infrastructure that allows for a "network of networks." 58 It

is also a means for several purposes. As with all other "means enhancing
capabilities of human interaction," 59 it can be used to facilitate benefits as
well as nefarious ends. The Internet can be a means for criminal activity.
Parallel to the unprecedented escalation of the use of the Internet and its
various technologies is also an escalation in what has been termed as
cybercrimes. As noted in the 2010 Salvador Declaration on Comprehensive
Strategies for Global Challenges, annexed to United Nations General
Assembly resolution 65/230:
[The] development of information and communications
technologies and the increasing use of the Internet create new
opportunities for offenders and facilitate the growth of crime. 60

Also as observed elsewhere:

Over the past few years, the global cyber crime landscape has
changed dramatically, with criminals employing more sophisticated
technology and greater knowledge of cyber security. Until recently,
malware, Spam emails, hacking into corporate sites and other
attacks of this nature were mostly the work of computer 'geniuses'
showcasing their talent. These attacks, which were rarely malicious,
have gradually evolved into cyber crime syndicates siphoning off
money through illegal cyber channels. By 2010, however, politically
motivated cyber crime had penetrated global cyberspace. In fact,
weaponry and command and control systems have also transitioned
into the cyberspace to deploy and execute espionage and sabotage,
as seen in the example of digital espionage attacks on computer
networks at Lockheed Martin and NASA. 61

Computer-related criminal activity is not peculiar to the 21st century. 62 One

of the first reported "major" instances of cybercrime was in 2000 when the
mass-mailed "I Love You" Worm (which originated from Pandacan, Manila) 63
"affected nearly 45 million computer users worldwide." 64 This entailed as
much as US$ 15 billion to repair the damage. Cyber attacks have morphed
into myriad forms. The following is just a summary of some of the known
attacks: 65
Type of Attack Details

Viruses and
Viruses and worms are computer programs that affect the
worms
 storage devices of a computer or network, which then
replicate information without the knowledge of the user.

Spam emails Spam emails are unsolicited emails or junk newsgroup

postings. Spam emails are sent without the consent of the
receiver potentially creating a wide range of problems if
they are not filtered appropriately.

Trojan A Trojan is a program that appears legitimate. However,

once run, it moves on to locate password information or
makes the system more vulnerable to future entry. Or a
Trojan may simply destroy programs or data on the hard
disk.

Denial-of-service DoS occurs when criminals attempt to bring down or cripple

(DoS) individual websites, computers or networks, often by
flooding them with messages.

Malware Malware is a software that takes control of any individual's

computer to spread a bug to other people's devices or social
networking profiles. Such software can also be used to
create a 'botnet' a network of computers controlled
remotely by hackers, known as 'herders,' to spread spam
or viruses.

Scareware Using fear tactics, some cyber criminals compel users to

download certain software. While such software is usually
presented as antivirus software, after some time, these
programs start attacking the user's system. The user then has
to pay the criminals to remove such viruses.

Phishing Phishing attacks are designed to steal a person's login and

password. For instance, the phisher can access the victims'
bank accounts or assume control of their social network.

Fiscal fraud By targeting official online payment channels, cyber

attackers can hamper processes such as tax collection or
make fraudulent claims for benefits.

State cyber Experts believe that some government agencies may also be
attacks
using cyber attacks as a new means of warfare. One such
attack occurred in 2010, when a computer virus called
Stuxnet was used to carry out an invisible attack on Iran's
secret nuclear program. The virus was aimed at disabling
Iran's uranium enrichment centrifuges.

Carders Stealing bank or credit card details is another major cyber

crime. Duplicate cards are then used to withdraw cash at
ATMs or in shops.

The shift from wired to mobile devices has also brought with it the escalation
of attacks on mobile devices. As reported by IT security group McAfee, "[t]he
number of pieces of new mobile malware in 2010 increased by 46 percent
compared with 2009." 66 Hackers have also increased targeting mobile
devices using Apple's iOS and Google's Android systems as these increased
their market share. As McAfee put it, "cybercriminals are keeping tabs on
what's popular." 67
Cybercrimes come at tremendous costs. A report notes that "[i]n the US over
the course of one year in 2009, the amount of information lost to cyber crime
nearly doubled, from US$265 million in 2008 to US$560 million . . . ." 68 In the
United Kingdom, the annual cost arising from cybercrime was estimated at
GBP27 billion (US$ 43 billion). Of this amount, intellectual property theft
accounts for GBP9.2 billion (US$ 14 billion), while espionage activities account
for more than GBP7 billion (US$ 11 billion). 69 In Germany, a joint report by
the information technology trade group Bitkom and the German Federal
Criminal Police Office estimates phishing to have increased 70 percent year
on year in 2010, resulting in a loss of as much as EUR17 million (US$22
million). 70
The costs in the Philippines are certainly present, but the revelation of its
magnitude awaits research that may come as a result of the implementation
of the Cybercrime Prevention Act of 2012.
Another report summarizes the costs to government as follows: 71
1. Costs in anticipation of cyber crime
 -Security measures, such as antiviral software installation, cost of
insurance and IT security standards maintenance.
2. Costs as a consequence of cyber crime
-Monetary losses to organizations, such as gaps in business
continuity and losses due to IP theft.
3. Costs in response to cyber crime
-Paying regulatory fines and compensations to victims of identity
theft, and cost associated with investigation of the crime.
4. Indirect costs associated with cyber crime
-Costs resulting from reputational damage to organizations and loss
of confidence in cyber transactions.
II (E)
The Challenges for
"Internet Governance"
All these have triggered spirited discussion on what has been termed as
"internet governance" or "internet/cyberspace regulation."
Particularly challenging are the "jurisdictional challenges that 'virtual'
computer networks posed to territorially constituted nation states . . . ." 72
John Perry Barlow, for example, proclaimed in his Declaration of the
Independence of Cyberspace:
Governments of the Industrial World, you weary giants of flesh and
steel, I come from Cyberspace, the new home of Mind. On behalf of
the future, I ask you of the past to leave us alone. You are not
welcome among us. You have no sovereignty where we gather. 73

Many have considered the internet as "ungovernable," 74 having the ability to

"undermine traditional forms of governance," 75 and "radically subvert[ing] a
system of rule-making based on borders between physical spaces, at least
with respect to the claim that cyberspace should naturally be governed by
territorially defined rules." 76
Adding to the complexity of internet regulation is the private character of the
internet as manifested in: (1) the ownership and operation of internet
infrastructure; and (2) the organizational framework of the internet. This
private character, in turn, gives rise to pressing questions on legitimacy and
accountability.
The United Nations Office on Drugs and Crime (UNODC) describes the
private ownership and operation of internet infrastructure as follows:
A significant proportion of internet infrastructure is owned and
operated by the private sector. Internet access requires a "passive"
infrastructure layer of trenches, ducts, optical fibre, mobile base
stations, and satellite hardware. It also requires an 'active'
infrastructure layer of electronic equipment, and a 'service' layer of
content services and applications.
xxx xxx xxx

As an infrastructure, the Internet's growth can be compared to the

development of roads, railways, and electricity, which are dependent on
private sector investment, construction and maintenance, but regulated and
incentivized by national governments. At the same time, the internet is often
regarded as more private-sector led. 77
As to the organizational framework of the Internet, a professor writes:
As far as the organizational framework of the internet is concerned,
the present "system" is mainly designed by private bodies and
organizations, i.e., a self-regulatory system applies in reality. Thereby,
the key player is the Internet Corporation for Assigned Names and
Numbers (ICANN), being in place since November 1998. 78

There are private bodies and organizations that exist for the purpose of
regulation. There are commercial entities vendors and service providers
that emerge as de facto regulators. A noted expert observes that an
increasing response has been the creation of devices and services which rely
on a continuing relationship with vendors and service providers who are
then accountable for ensuring security and privacy. 79 There is now a marked
tendency to resort to "sterile appliances tethered to a network of control." 80
This may stunt the very "capacity to produce unanticipated change through
unfiltered contributions from broad and varied audiences." 81 It is these
unanticipated changes which facilitated the internet's rise to ubiquity.
The fear is that too much reliance on commercial vendors and their
standards and technologies transfers control over the all important Internet
from innovation from varied sources. In a way, it stunts democratic creativity
of an important media.
On the other end, states have consciously started more legal intervention. As
observed by the United Nations Office on Drugs and Crime:
Legal measures play a key role in the prevention and combating of
cybercrime. Law is [a] dynamic tool that enables the state to respond
to new societal and security challenges, such as the appropriate
balance between privacy and crime control, or the extent of liability
of corporations that provide services. In addition to national laws, at
the international level, the law of nations international law
covers relations between states in all their myriad forms. Provisions
in both national laws and international law are relevant to
cybercrime. 82

At the normative level, legal measures address, if not negate, apprehensions

of legitimacy, consent, and accountability. Functionally, legal measures are
vital in:
1. Setting clear standards of behavior for the use of computer
devices;
2. Deterring perpetrators and protecting citizens;
3. Enabling law enforcement investigations while protecting
individual privacy;
4. Providing fair and effective criminal justice procedures;
5. Requiring minimum protection standards in areas such as data
handling and retention; and
6. Enabling cooperation between countries in criminal matters
involving cybercrime and electronic evidence. 83
In performing these functions, legal measures must adapt to emerging
exigencies. This includes the emergence of a virtual, rather than physical,
field of governance. It also includes specific approaches for specific acts and
specific technologies. Effective Internet governance through law cannot be
approached too generally or in the abstract: HcTIDC

The technological developments associated with cybercrime mean

that while traditional laws can be applied to some extent
legislation must also grapple with new concepts and objects, not
 traditionally addressed by law. In many states, laws on technical
developments date back to the 19th century. These laws were, and
to a great extent, still are, focused on physical objects around
which the daily life of industrial society revolved. For this reason,
many traditional general laws do not take into account the
particularities of information and information technology that are
associated with cybercrime and crimes generating electronic
evidence. These acts are largely characterized by new intangible
objects, such as data or information.
xxx xxx xxx
This raises the question of whether cybercrime should be covered by
general, existing criminal law provisions, or whether new, computer-
specific offences are required. The question cannot be answered
generally, but rather depends upon the nature of individual
acts, and the scope and interpretation of national laws. 84
(Emphasis provided)

II (F)
The Lack of a Universal
Policy Consensus: Political
Nature of the Content of
Cybercrime Legislation
The description of the acts in cyberspace which relates to "new concepts and
objects, not traditionally addressed by law" 85 challenges the very concept of
crimes. This is of preeminent significance as there can be no crime where
there is no law punishing an act (nullum crimen, nulla poena sine lege). 86
The Comprehensive Study on Cybercrime prepared by UNODC for the
Intergovernmental Expert Group on Cybercrime, February 2013, reports that
a survey of almost 200 pieces of national legislation fails to establish a clear
definition of cybercrime. If at all, domestic laws tend to evade having to use
the term "cybercrime" altogether:
Out of almost 200 items of national legislation cited by countries in
response to the Study questionnaire, fewer than five per cent used
the word "cybercrime" in the title or scope of legislative provisions.
Rather, legislation more commonly referred to "computer crimes,"
"electronic communications," "information technologies," or "high-tech
 crime." In practice, many of these pieces of legislation created
criminal offences that are included in the concept of cybercrime,
such as unauthorized access to a computer system, or interference
with a computer system or data. Where national legislation did
specifically use cybercrime in the title of an act or section (such as
"Cybercrime Act"), the definitional section of the legislation rarely
included a definition for the word "cybercrime." When the term
"cybercrime" was included as a legal definition, a common approach
was to define it simply as "the crimes referred to in this law." 87

International or regional legal instruments are also important for states

because they articulate a consensus, established or emerging, among several
jurisdictions. With respect to international or legal instruments however, the
United Nations Office on Drugs and Crime notes the same lack of a
conceptual consensus as to what makes cybercrimes:
In a similar manner, very few international or regional legal
instruments define cybercrime. Neither the Council of Europe
Cybercrime Convention, the League of Arab States Convention, nor
the Draft African Union Convention, for example, contains a
definition of cybercrime for the purposes of the instrument. The
Commonwealth of Independent States Agreement, without using the
term "cybercrime," defines an "offence relating to computer
information" as a "criminal act of which the target is computer
information." Similarly, the Shanghai Cooperation Organization
Agreement defines "information offences" as "the use of information
resources and (or) the impact on them in the informational sphere for
illegal purposes." 88

More than defining the term "cybercrime," international legal instruments list
acts which may be considered as falling under the broad umbrella of
cybercrimes. As surveyed in 'The Comprehensive Study on Cybercrime
prepared by UNODC for the Intergovernmental Expert Group on Cybercrime,
February 2013,' there are sixteen (16) international or regional instruments
which exist with the objective of countering Cybercrime. The UNODC notes
that nine (9) of these instruments are binding, 89 while seven (7) are non-
binding. 90 In all, these instruments include a total of eighty-two (82)
countries which have signed and/or ratified them. Of these, it is the Council
of Europe Cybercrime Convention which has the widest coverage: Forty-eight
 (48) countries, 91 including five (5) non-member states of the Council of
Europe, have ratified and/or acceded to it. Other instruments have
significantly smaller scopes. For example, the League of Arab States
Convention only included eighteen (18) countries or territories; the
Commonwealth of Independent States Agreement, with ten (10) countries;
and the Shanghai Cooperation Organization Agreement, with six (6)
countries. 92
Surveying these sixteen (16) instruments, the United Nations Office on Drugs
and Crime summarizes acts of cybercrimes vis-a-vis the instruments (and
specific provisions of such instruments) covering each act as follows:

The Commonwealt Council of Council of ECOWAS European European Union European European ITU/CARICOM/CTU League o
Commonwealt h of Europe Europe 99 Union (Directive Union Union (Model Legislative State
h 95 Independent (Budapest (Lanzarote (Framework Proposal (Directive (Directive Texts) 104 (Conven
States 96 Convention) Convention) Decision 2010/0273) 101 Framework 2011/92/EU 105
97 98 2005/222/JHA) Decision and
100 2001/413/JHA) 2002/58/EC)
102 103
Art. 5 and 7 Art. 2 Art. 2 and Art. 2 (1) Art. 3 Art. 4 and 5 Art.
3

Art. 5 and 8 Art. 3 (1) (a) Art. 2 and 3 Art. 6 Art. 6 Art. 6 and 8 Art. 6, 7 a

Art. 6 Art. 3 (1) (c) Art. 4 Art. 5 and Art. 4 Art. 5 Art. 3 Art. 7 Art.
7

Art. 7 Art. 3 (1) (c) Art. 5 Art. 4 Art. 3 Art. 4 Art. 3 Art. 9 Art.

Art. 9 Art. 3 (1) (b) Art. 6 Art. 12 Art. 5 Art. 7 Art. 4 Art. 10 Art.

Art. 3 Art. 11 Art. 15 (a) (1)

 Art. 7 Art. 8 Art. 2 and 4 Art. 11 Art. 10 an

Art. 8 Art. 9, 10 Art. 2 and 4 Art. 12 Art. 1

and 23

Art. 2 Art. 1

Art. 14

Art. 3 (1) (d) Art. (10) Art. 1

Art. 13 (3) Art. 15

Art. 18

Art. 3, 4, 5 Art. 18, 19

(OP) and 20

Art. 6 (OP) Art. 21

Art. 10 Art. 9 Art. 20 Art. 14, Art. 5 Art. 13 Art. 1

15, 16 and
17

Art. 23 Art. 6
 Art. 1

Art. 1

Art. 1

Art. 14, Art. 12, 1

15, 16 and and 1
17

Art. 13 and 21 Art. 16 (3), Art. 16 and 17 Art. 23 (3)

20, (3) and and 29
21 (3)

Art. 22 Art. 2

Art. 11 and Art. 24 Art. 8

7

Art. 12 Art. 26

Expert Group on Cybercrime, February 2013' suggests that "cybercrime" is

"best considered as a collection of acts or conduct." 109 Thus, in a manner
consistent with the approach adopted by international instruments such as
the United Nations Convention Against Corruption, 110 it "identifies a list, or
'basket', of acts which could constitute cybercrime." 111 The list, however, is
tentative and not exhaustive, provided "with a view to establishing a basis for
analysis," 112 rather than to "represent legal definitions." 113 These acts are
"organized in three broad categories", 114 as follows:
1. Acts against the confidentiality, integrity and availability of
computer data or systems
a. Illegal access to a computer system DTSaHI

b. Illegal access, interception or acquisition of computer

data
c. Illegal interference with a computer system or
computer data
d. Production, distribution or possession of computer
misuse tools
e. Breach of privacy or data protection measures
2. Computer-related acts for personal or financial gain or harm
a. Computer-related fraud or forgery
b. Computer-related identity offences
c. Computer-related copyright or trademark offences
d. Sending or controlling sending of Spam
e. Computer-related acts causing personal harm
f. Computer-related solicitation or 'grooming' of children
3. Computer content-related acts
a. Computer-related acts involving hate speech
b. Computer-related production, distribution or
possession of child pornography
c. Computer-related acts in support of terrorism offences
115

Apart from the conceptual and definitional mooring of cybercrimes, equally

significant are the "procedural powers including search, seizure, orders for
computer data, real-time collection of computer data, and preservation of
data . . . ." 116 As noted by the United Nations Office on Drugs and Crime,
these procedural powers, along with the criminalization of certain acts and
obligations for international cooperation, form the "core provisions" shared
by international and legal instruments. 117
The United Nations Office on Drugs and Crime's survey of key international
and regional instruments summarizes each instrument's provision of
procedural powers as follows:
Proced Afri COM The Common Council Counci ECO Europe Europ Europ Europe ITU/CARIC League Lea Shangh Unit
ural can ESA Common wealth of of l of WAS an ean ean an OM/CTU of Arab gue ai ed
Power Uni 119 wealth Independ Europe Europe 124 Union Union Union Union (Model States of Coorpe Nati
on 120 ent (Budap (Lanza (Frame (Direct (Direct (Directi Legislative (Conve Ara ration ons
118 States est rote work ive ive ve Texts) 129 ntion) b Organiz (CR
121 Conve Conve Decisio Propo Frame 2011/9 130 Stat ation C
ntion) ntion) n sal work 2/EU es 132 OP)
122 123 2005/2 2010/0 Decisi and (Mo 133
22/ 273) on 2002/ del
JHA) 126 2001/4 58/EC) Law
125 13/ 128 s)
JHA) 131
127
1 Search Art. Art. Art. 12 Art. 19 Art. Art. 20 Art. 26
for III 37 (a) (1) and 33
comput (50) and (2)
er (b)
hardwa
re or
data
2 Seizure Art. Art. Art.12 Art. 19 Art. Art. 20 Art. 27
of III 37 (c) and 14 (3) 33 (1)
comput (51)
er
hardwa
re or
data
3 Order Art. Art. 15 Art. 18 Art. 22 (a) Art. 25
for 36 (a) (1) (1) (1)
stored
comput
er date
4 Order Art. Art. 18 Art. 22 (b) Art. 25
for 36 (b) (1) (b) (2)
subscri
ber
informa
tion
5 Order Art. Art. 16 Art. 17 Art. 24 Art. 24
for 34 (a) (1) (b)
stored (ii)
traffic
data
6 Real- Art. Art. 19 Art. 20 Art. 25 Art. 28
time 38
collecti
on of
traffic
data
7 Real- Art. Art. Art. 18 Art. 21 Art. 26 Art. 29
time III 39
collecti
 on of(55)
content
-data
8 Expedit Art. Art. Art. 17 Art. 16, Art. Art. 23 Art. 23
ed III 33, 34 17 (1) 33 (2)
preserv (53) (a) (i) (a)
ation of and
comput (35)
er-data
9 Use of Art. 30 Art. 15 Art. 27
(remote (5)
)
forensi
c tools
1 Trans- Art. Art. 32 Art. 40
0 border 49 (b) (b) (2)
access
to
comput
er data
1 Provisi Art. Art. 13 Art. 19 Art. 21 Art. 27
1 on of 37 (d) (4) (2)
assista
nce
1 Retenti Art. Art. 3
2 on of 29, 30 and 6
comput and
er data 31

In the Philippines, Republic Act No. 10175 adopts an approach which is

similar to the UNODC's appreciation of cybercrimes as a "collection of acts or
conduct." We have thus transplanted some of the provisions that are still
part of an emerging consensus. Thus, the Cybercrime Prevention Act of 2012
in question provides for the following "basket" of punishable acts:
CHAPTER II
PUNISHABLE ACTS
SEC. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. The access to the whole or any part of a
computer system without right.
(2) Illegal Interception. The interception made by technical means
without right of any non-public transmission of computer data
to, from, or within a computer system including
electromagnetic emissions from a computer system carrying
such computer data.
(3) Data Interference. The intentional or reckless alteration,
damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without
right, including the introduction or transmission of viruses.
(4) System Interference. The intentional alteration or reckless
hindering or interference with the functioning of a computer
or computer network by inputting, transmitting, damaging,
deleting, deteriorating, altering or suppressing computer data
or program, electronic document, or electronic data message,
without right or authority, including the introduction or
transmission of viruses.
(5) Misuse of Devices.
(i) The use, production, sale, procurement, importation,
distribution, or otherwise making available, without right, of:
(aa) A device, including a computer program, designed or adapted
primarily for the purpose of committing any of the offenses under
this Act; or
(bb) A computer password, access code, or similar data by which
the whole or any part of a computer system is capable of being
accessed with intent that it be used for the purpose of committing
any of the offenses under this Act.
(ii) The possession of an item referred to in paragraphs 5(i)(aa) or
(bb) above with intent to use said devices for the purpose of
committing any of the offenses under this section.
(6) Cyber-squatting. The acquisition of a domain name over the
internet in bad faith to profit, mislead, destroy reputation, and
deprive others from registering the same, if such a domain name
is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of
the domain name registration:
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in
it.
(b) Computer-related Offenses:
(1) Computer-related Forgery.
(i) The input, alteration, or deletion of any computer data without
right resulting in inauthentic data with the intent that it be
considered or acted upon for legal purposes as if it were authentic,
regardless whether or not the data is directly readable and
intelligible; or
(ii) The act of knowingly using computer data which is the product
of computer-related forgery as defined herein, for the purpose of
perpetuating a fraudulent or dishonest design.
(2) Computer-related Fraud. The unauthorized input, alteration,
or deletion of computer data or program or interference in the
functioning of a computer system, causing damage thereby with
fraudulent intent: Provided, That if no damage has yet been caused,
the penalty imposable shall be one (1) degree lower.
(3) Computer-related Identity Theft. The intentional acquisition,
use, misuse, transfer, possession, alteration or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided, That if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower. DEICaA

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system,
for favor or consideration.
(2) Child Pornography. The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
(3) Unsolicited Commercial Communications. The transmission
of commercial electronic communication with the use of computer
system which seek to advertise, sell, or offer for sale products and
services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
 (ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing
users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order
to induce the recipients to read the message.
(4) Libel The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may
be devised in the future.
SEC. 5. Other Offenses. The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.

II (G)
No Actual Controversy
The overview of the internet and the context of cyberspace regulation should
readily highlight the dangers of proceeding to rule on the constitutional
challenges presented by these consolidated petitions barren of actual
controversies. The platforms and technologies that move through an ever
expanding network of networks are varied. The activities of its users,
administrators, commercial vendors, and governments are also as complex
as they are varied.
The internet continues to grow. End User License Agreements (EULA) of
various applications may change its terms based on the feedback of its users.
Technology may progress to ensure that some of the fears that amount to a
violation of a constitutional right or privilege will be addressed. Possibly, the
violations, with new technologies, may become more intrusive and malignant
than jurisprudential cures that we can only imagine at present.
All these point to various reasons for judicial restraint as a natural
component of judicial review when there is no actual case. The court's
power is extraordinary and residual. That is, it should be invoked only when
private actors or other public instrumentalities fail to comply with the law
or the provisions of the Constitution. Our faith in deliberative democracy
requires that we presume that political forums are as competent to read
the Constitution as this court.
Also, the court's competence to deal with these issues needs to evolve as
we understand the context and detail of each technology implicated in acts
that are alleged to violate law or the Constitution. The internet is an
environment, a phenomenon, a network of complex relationships and, thus,
a subject that cannot be fully grasped at first instance. This is where
adversarial positions with concrete contending claims of rights violated or
duties not exercised will become important. Without the benefit of these
adversarial presentations, the implications and consequences of judicial
pronouncements cannot be fully evaluated.
Finally, judicial economy and adjudicative pragmatism requires that we
stay our hand when the facts are not clear. Our pronouncements may not
be enough or may be too detailed. Parties might be required to adjudicate
again. Without an actual case, our pronouncements may also be irrelevant
to the technologies and relationships that really exist. This will tend to
undermine our own credibility as an institution.
We are possessed with none of the facts. We have no context of the
assertion of any right or the failure of any duty contained in the Constitution.
To borrow a meme that has now become popular in virtual environments:
We cannot be asked to doubt the application of provisions of law with most
of the facts in the cloud.
III
 Limited Exception: Overbreadth Doctrine
There is, however, a limited instance where facial review of a statute is not
only allowed but essential: when the provision in question is so broad that
there is a clear and imminent threat that actually operates or it can be
used as a prior restraint of speech. This is when there can be an invalidation
of the statute "on its face" rather than "as applied."
The use of the doctrine gained attention in this jurisdiction within a separate
opinion by Justice Mendoza in Cruz v. Secretary of Environment and Natural
Resources, 134 thus:
The only instance where a facial challenge to a statute is
allowed is when it operates in the area of freedom of
expression. In such instance, the overbreadth doctrine permits a
party to challenge the validity of a statute even though as applied to
him it is not unconstitutional but it might be if applied to others not
before the Court whose activities are constitutionally protected.
Invalidation of the statute "on its face" rather than "as applied" is
permitted in the interest of preventing a "chilling" effect on freedom
of expression. But in other cases, even if it is found that a provision
of a statute is unconstitutional, courts will decree only partial
invalidity unless the invalid portion is so far inseparable from the rest
of the statute that a declaration of partial invalidity is not possible.
135 (Emphasis supplied)

The doctrine was again revisited in the celebrated plunder case of former
President Joseph Estrada, when Justice Mendoza, in his concurring opinion,
explained at length when a facial challenge may be allowed:
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity." The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims
of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative Act is. . . the most
difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the
law as applied to the conduct of others." aDcETC

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

are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional."
As has been pointed out, "vagueness challenges in the First
 Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim
that this Court review, the Anti-Plunder Law on its face and in its
entirety. 136

The overbreadth doctrine in the context of a facial challenge was refined

further in David v. Arroyo, 137 where this court speaking through Justice
Sandoval-Gutierrez disallowed petitioners from challenging Proclamation No.
1017 on its face for being overbroad. In doing so, it laid down the guidelines
for when a facial challenge may be properly brought before this court, thus:
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment
cases.
xxx xxx xxx
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct." . . .
xxx xxx xxx
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken
words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly
strong medicine," to be used "sparingly and only as a last resort,"
and is "generally disfavored;" The reason for this is obvious.
Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in
other situations not before the Court. A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law's "very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine
will require the Court to examine PP 1017 and pinpoint its flaws
and defects, not on the basis of its actual operation to petitioners,
but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris, it was held
that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
 results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show
whether this situation exists. 138 (Emphasis originally provided)

The Mendoza opinion, however, found its way back into the legal spectrum
when it was eventually adopted by this court in the cases of Romualdez v.
Sandiganbayan 139 and Romualdez v. Commission on Elections. 140 Upon motion
for reconsideration in Romualdez v. Commission on Elections, 141 however, this
court revised its earlier pronouncement that a facial challenge only applies to
free speech cases, thereby expanding its scope and usage. It stated that:
. . . The rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. 142

However, the latest pronouncement of this court on the doctrine was the
case of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council. 143 In it, this court, while reiterating Justice Mendoza's opinion as
cited in the Romualdez cases, explained further the difference between a
"facial" challenge and an "as applied" challenge. ICHcaD

Distinguished from an as-applied challenge which considers only

extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects,
not only on the basis of its actual operation to the parties, but also
on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally
protected speech or activities.
Justice Mendoza accurately phrased the subtitle in his concurring
opinion that the vagueness and overbreadth doctrines, as grounds
for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified
by the aim to avert the "chilling effect" on protected speech, the
exercise of which should not at all times be abridged. As reflected
earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected
rights.
The Court reiterated that there are "critical limitations by which a
criminal statute may be challenged" and "underscored that an 'on-
its-face' invalidation of penal statutes . . . may not be allowed."
[T]he rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes
be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of
crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of
penal statutes, if the same is allowed, would effectively go against
the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised.
A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test
will impair the State's ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the
State's power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.
It is settled, on the other hand, that the application of the
overbreadth doctrine is limited to a facial kind of challenge
and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected
 speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed
for being substantially overbroad if the court confines itself only to
facts as applied to the litigants.
TaIHEA

xxx xxx xxx

In restricting the overbreadth doctrine to free speech claims, the
Court, in at least two cases, observed that the US Supreme Court
has not recognized an overbreadth doctrine outside the limited
context of the First Amendment, and that claims of facial
overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words. In
Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly
broad statutes are justified by the "transcendent value to all society
of constitutionally protected expression." 144 (Emphasis and
underscoring originally supplied)

III (A)
Test for Allowable Facial Review
In my view, the prevailing doctrine now is that a facial challenge only
applies to cases where the free speech and its cognates are asserted before
the court. While as a general rule penal statutes cannot be subjected to
facial attacks, a provision in a statute can be struck down as
unconstitutional when there is a clear showing that there is an imminent
possibility that its broad language will allow ordinary law enforcement to
cause prior restraints of speech and the value of that speech is such that its
absence will be socially irreparable.
This, therefore, requires the following:
First, the ground for the challenge of the provision in the statute is that it
violates freedom of expression or any of its cognates;
Second, the language in the statute is impermissibly vague;
Third, the vagueness in the text of the statute in question allows for an
interpretation that will allow prior restraints;
Fourth, the "chilling effect" is not simply because the provision is found in a
penal statute but because there can be a clear showing that there are special
circumstances which show the imminence that the provision will be invoked
by law enforcers;
Fifth, the application of the provision in question will entail prior restraints;
and
Sixth, the value of the speech that will be restrained is such that its absence
will be socially irreparable. This will necessarily mean balancing between the
state interests protected by the regulation and the value of the speech
excluded from society.
III (B)
Reason for the Doctrine
The reason for this exception can be easily discerned.
The right to free speech and freedom of expression take paramount
consideration among all the rights of the sovereign people. In Philippine
Blooming Mills Employment Organization et al. v. Philippine Blooming Mills, Co.
Inc., 145 this court discussed this hierarchy at length:
(1) In a democracy, the preservation and enhancement of the
dignity and worth of the human personality is the central core as
well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest
possible extent in his thoughts and in his beliefs as the citadel of
his person."
(2) The Bill of Rights is designed to preserve the ideals of liberty,
equality and security "against the assaults of opportunism, the
expediency of the passing hour, the erosion of small
encroachments, and the scorn and derision of those who have no
patience with general principles."
In the pithy language of Mr. Justice Robert Jackson, the purpose of
the Bill of Rights is to withdraw "certain subjects from the
vicissitudes of political controversy, to place them beyond the reach
of majorities and officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty and property, to
free speech, or free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections." Laski proclaimed that "the
happiness of the individual, not the well-being of the State, was the
criterion by which its behaviour was to be judged. His interests, not
its power, set the limits to the authority it was entitled to exercise."
(3) The freedoms of expression and of assembly as well as the right
to petition are included among the immunities reserved by the
sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we
cherish; or as Socrates insinuated, not only to protect the minority
who want to talk, but also to benefit the majority who refuse to
listen. And as Justice Douglas cogently stresses it, the liberties of
one are the liberties of all; and the liberties of one are not safe
unless the liberties of all are protected.
(4) The rights of free expression, free assembly and petition, are
not only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well
as in the discipline of abusive public officers. The citizen is accorded
these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and
employees.
(5) While the Bill of Rights also protects property rights, the primacy
of human rights over property rights is recognized. Because these
freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter
their exercise almost as potently as the actual application of
sanctions," they "need breathing space to survive," permitting
government regulation only "with narrow specificity."
Property and property rights can be lost thru prescription; but
human rights are imprescriptible. If human rights are extinguished
by the passage of time, then the Bill of Rights is a useless attempt
to limit the power of government and ceases to be an efficacious
shield against the tyranny of officials, of majorities, of the
 influential and powerful, and of oligarchs political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."
The superiority of these freedoms over property rights is
underscored by the fact that a mere reasonable or rational relation
between the means employed by the law and its object or purpose
that the law is neither arbitrary nor discriminatory nor
oppressive would suffice to validate a law which restricts or
impairs property rights. On the other hand, a constitutional or valid
infringement of human rights requires a more stringent criterion,
namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent. 146 (Citations omitted)
aTHCSE

The right to freedom of expression is a primordial right because it is not only

an affirmation but a positive execution of the basic nature of the state
defined in Article II, Section 1 of the 1987 Constitution:
The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them.

The power of the State is derived from the authority and mandate given to it
by the people, through their representatives elected in the legislative and
executive branches of government. The sovereignty of the Filipino people is
dependent on their ability to freely express themselves without fear of
undue reprisal by the government. Government, too, is shaped by comments
and criticisms of the various publics that it serves.
The ability to express and communicate also defines individual and collective
autonomies. That is, we shape and refine our identity and, therefore, also
our thoughts as well as our viewpoints through interaction with others. We
choose the modes of our expression that will also affect the way that others
receive our ideas. Thoughts remembered when expressed with witty
eloquence are imbibed through art. Ideas, however, can be rejected with a
passion when expressed through uncouth caustic verbal remarks or
presented with tasteless memes. In any of these instances, those who
receive the message see the speaker in a particular way, perhaps even
belonging to a category or culture.
Furthermore, what we learn from others bears on what we think as well as
what and how we express. For the quality of our own expression, it is as
important to tolerate the expression of others.
This fundamental and primordial freedom has its important inherent and
utilitarian justifications. With the imminent possibility of prior restraints, the
protection must be extraordinarily vigilant.
In Chavez v. Gonzales, 147 the court elaborated further on the primacy of the
right to freedom of speech:
Freedom of speech and of the press means something more than
the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, and to take
refuge in the existing climate of opinion on any matter of public
consequence. When atrophied, the right becomes meaningless.
The right belongs as well if not more to those who question,
who do not conform, who differ. The ideas that may be expressed
under this freedom are confined not only to those that are
conventional or acceptable to the majority. To be truly meaningful,
freedom of speech and of the press should allow and even
encourage the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view "induces a
condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger." To paraphrase Justice Holmes, it
is freedom for the thought that we hate, no less than for the
thought that agrees with us.
The scope of freedom of expression is so broad that it extends
protection to nearly all forms of communication. It protects speech,
print and assembly regarding secular as well as political causes,
and is not confined to any particular field of human interest. The
protection covers myriad matters of public interest or concern
embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the
exigencies of their period. The constitutional protection assures the
broadest possible exercise of free speech and free press for
 religious, political, economic, scientific, news, or informational ends,
inasmuch as the Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression of ideas that are
conventional or shared by a majority.
The constitutional protection is not limited to the exposition of
ideas. The protection afforded free speech extends to speech or
publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE)
v. Dans, this Court stated that all forms of media, whether print or
broadcast, are entitled to the broad protection of the clause on
freedom of speech and of expression. (Citations omitted) 148

III (C)
Overbreadth versus Vagueness
A facial challenge, however, can only be raised on the basis of overbreadth,
not vagueness. Vagueness relates to a violation of the rights of due process.
A facial challenge, on the other hand, can only be raised on the basis of
overbreadth, which affects freedom of expression.
Southern Hemisphere provided the necessary distinction:
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of
the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle. The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject
to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.
As distinguished from the vagueness doctrine, the overbreadth doctrine
assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is protected.
149
The facial challenge is different from an "as-applied" challenge or
determination of a penal law. In an "as-applied" challenge, the court
undertakes judicial review of the constitutionality of legislation "as applied"
to particular facts, parties or defendants and on a case-to-case basis. In a
challenge "as applied," the violation also involves an abridgement of the due
process clause. In such instances, the burden of the petitioner must be to
show that the only reasonable interpretation is one that is arbitrary or unfair.
III (D)
"Chilling Effect"
In the petitions before this court, the facial challenge can be used but only
insofar as those provisions that are so broad as to ordinarily produce a
"chilling effect" on speech.
We have transplanted and adopted the doctrine relating to "chilling effects"
from the jurisprudence of the United States Supreme Court. The evolution of
their doctrine, therefore, should be advisory but not binding for this court.
The concept of a "chilling effect" was first introduced in the case of Wieman v.
Updegraff. 150 In that case, the United States Supreme Court declared as
unconstitutional Oklahoma state legislature which authorized the docking of
salaries of employees within the state who failed to render a "loyalty oath"
disavowing membership in communist organizations. The validity of the
Oklahama state legislature included teachers in public schools who alleged
violations of the Due Process Clause. In his concurring opinion, Justice
Frankfurter first introduced the concept of a "chilling effect," stating:
By limiting the power of the States to interfere with freedom of
speech and freedom of inquiry and freedom of association, the
Fourteenth Amendment protects all persons, no matter what their
calling. But, in view of the nature of the teacher's relation to the
effective exercise of the rights which are safeguarded by the Bill of
Rights and by the Fourteenth Amendment, inhibition of freedom of
thought, and of action upon thought, in the case of teachers brings
the safeguards of those amendments vividly into operation. Such
unwarranted inhibition upon the free spirit of teachers affects not
only those who, like the appellants, are immediately before the
Court. It has an unmistakable tendency to chill that free play of the
spirit which all teachers ought especially to cultivate and practice; it
 makes for caution and timidity in their associations by potential
teachers. 151

The concept of a "chilling effect" was further elaborated in the landmark case
of New York Times v. Sullivan: 152
We should be particularly careful, therefore, adequately to protect
the liberties which are embodied in the First and Fourteenth
Amendments. It may be urged that deliberately and maliciously
false statements have no conceivable value as free speech. That
argument, however, is not responsive to the real issue presented
by this case, which is whether that freedom of speech which all
agree is constitutionally protected can be effectively safeguarded
by a rule allowing the imposition of liability upon a jury's evaluation
of the speaker's state of mind. If individual citizens may be held
liable in damages for strong words, which a jury finds false and
maliciously motivated, there can be little doubt that public debate
and advocacy will be constrained. And if newspapers, publishing
advertisements dealing with public issues, thereby risk liability,
there can also be little doubt that the ability of minority groups to
secure publication of their views on public affairs and to seek
support for their causes will be greatly diminished. Cf. Farmers
Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 530. The
opinion of the Court conclusively demonstrates the chilling effect of
the Alabama libel laws on First Amendment freedoms in the area of
race relations. The American Colonists were not willing, nor should
we be, to take the risk that "[m]en who injure and oppress the
people under their administration [and] provoke them to cry out
and complain" will also be empowered to "make that very
complaint the foundation for new oppressions and prosecutions."
The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721-722
(1735) (argument of counsel to the jury). To impose liability for
critical, albeit erroneous or even malicious, comments on official
conduct would effectively resurrect "the obsolete doctrine that the
governed must not criticize their governors." Cf. Sweeney v.
Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458. 153

In National Association for the Advancement of Colored People v. Button, 154 the
United States Supreme Court categorically qualified the concept of a "chilling
effect":
 Our concern is with the impact of enforcement of Chapter 33 upon
First Amendment freedoms.

xxx xxx xxx

For, in appraising a statute's inhibitory effect upon such rights, this
Court has not hesitated to take into account possible applications
of the statute in other factual contexts besides that at bar. Thornhill
v. Alabama, 310 U.S. 88, 310 U.S. 97-98; Winters v. New York, supra, at
333 U.S. 518-520. Cf. Staub v. City of Baxley, 355 U.S. 313. It makes
no difference that the instant case was not a criminal prosecution,
and not based on a refusal to comply with a licensing requirement.
The objectionable quality of vagueness and overbreadth does
not depend upon absence of fair notice to a criminally accused
or upon unchanneled delegation of legislative powers, but
upon the danger of tolerating, in the area of First Amendment
freedoms, the existence of a penal statute susceptible of
sweeping and improper application. Marcus v. Search Warrant,
367 U.S. 717, 367 U.S. 733. These freedoms are delicate and
vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as
potently as the actual application of sanctions. Cf. Smith v.
California, supra, at 361 U.S. 151-154; Speiser v. Randall, 357 U.S.
513, 357 U.S. 526. Because First Amendment freedoms need
breathing space to survive, government may regulate in the area
only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 3
310 U.S. 11. (Emphasis supplied) 155

Philippine jurisprudence has incorporated the concept of a "chilling effect,"

but the definition has remained abstract. In Chavez v. Gonzales, 156 this court
stated that a "chilling effect" took place upon the issuance of a press release
by the National Telecommunications Commission warning radio and
television broadcasters from using taped conversations involving former
President Gloria Macapagal-Arroyo and the allegations of fixing elections:
We rule that not every violation of a law will justify
straitjacketing the exercise of freedom of speech and of the
press. Our laws are of different kinds and doubtless, some of them
provide norms of conduct which even if violated have only an
adverse effect on a person's private comfort but does not endanger
national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression
of free speech and free press. In fine, violation of law is just a
factor, a vital one to be sure, which should be weighed in adjudging
whether to restrain freedom of speech and of the press. The totality
of the injurious effectsof the violation to private and public interest
must be calibrated in light of the preferred status accorded by the
Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and
calibrated measurement of the circumference of all these factors to
determine compliance with the clear and present danger test, the
Court should not be misinterpreted as devaluing violations of
law. By all means, violations of law should be vigorously prosecuted
by the State for they breed their own evil consequence. But to
repeat, the need to prevent their violation cannot per se trump
the exercise of free speech and free press, a preferred right
whose breach can lead to greater evils. For this failure of the
respondents alone to offer proof to satisfy the clear and present
danger test, the Court has no option but to uphold the exercise of
free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national
security of the State. ETDHaC

This is not all the faultline in the stance of the respondents. We slide
to the issue of whether the mere press statements of the Secretary
of Justice and of the NTC in question constitute a form of content-
based prior restraint that has transgressed the Constitution. In
resolving this issue, we hold that it is not decisive that the press
statements made by respondents were not reduced in or
followed up with formal orders or circulars. It is sufficient that
the press statements were made by respondents while in the
exercise of their official functions. Undoubtedly, respondent
Gonzales made his statements as Secretary of Justice, while the NTC
issued its statement as the regulatory body of media. Any act done,
such as a speech uttered, for and on behalf of the government
in an official capacity is covered by the rule on prior restraint.
The concept of an "act" does not limit itself to acts already
converted to a formal order or official circular. Otherwise, the
non formalization of an act into an official order or circular will
result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck
 down as they constitute impermissible forms of prior restraints on
the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on

record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media. They also came from the Secretary of Justice, the alter ego
of the Executive, who wields the awesome power to prosecute those
perceived to be violating the laws of the land. After the warnings, the KBP
inexplicably joined the NTC in issuing an ambivalent Joint Press Statement.
After the warnings, petitioner Chavez was left alone to fight this battle for
freedom of speech and of the press. This silence on the sidelines on the part
of some media practitioners is too deafening to be the subject of
misinterpretation.
The constitutional imperative for us to strike down unconstitutional
acts should always be exercised with care and in light of the distinct
facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and
construct of relative freedoms are never set in stone. Issues
revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But
in cases where the challenged acts are patent invasions of a
constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is
preferred than a blow too late. 157

Taking all these into consideration, as mentioned earlier, a facial attack of a

provision can only succeed when the basis is freedom of expression,
when there is a clear showing that there is an imminent possibility that
its broad language will allow ordinary law enforcement to cause prior
restraints of speech, and when the value of that speech is such that its
absence will be socially irreparable.
Among all the provisions challenged in these consolidated petitions, there
are only four instances when the "chilling effect" on speech can be palpable:
(a) the "take down" provision; (b) the provision on cyber libel; (c) the
provision on cybersex; and (d) the clause relating to unbridled surveillance of
traffic data. The provisions that provide for higher penalties for these as well
as for dual prosecutions should likewise be declared unconstitutional
because they magnify the "chilling effect" that stifles protected expression.
For this reason alone, these provisions and clauses are unconstitutional.
IV
The "Take Down" Clause
Section 19 of Republic Act No. 10175 is unconstitutional because it clearly
allows prior restraint. This section provides:
SEC. 19. Restricting or Blocking Access to Computer Data. When a
computer data is prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an order to restrict or
block access to such computer data.

Among all the provisions, this is the sole provision that the Office of the
Solicitor General agrees to be declared as unconstitutional.
IV (A)
A Paradigmatic Example of Prior Restraint
There is no doubt of the "chilling effect" of Section 19 of Republic Act No.
10175. It is indeed an example of an instance when law enforcers are clearly
invited to do prior restraints within vague parameters. It is blatantly
unconstitutional.
Chavez v. Gonzales presents a clear and concise summary of the doctrines
governing prior restraint:
Prior restraint refers to official governmental restrictions on the
press or other forms of expression in advance of actual publication
or dissemination. Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal
to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish;
and even injunctions against publication. Even the closure of the
business and printing offices of certain newspapers, resulting in the
discontinuation of their printing and publication, are deemed as
 previous restraint or censorship. Any law or official that requires
some form of permission to be had before publication can be
made, commits an infringement of the constitutional right, and
remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility
against all prior restraints on speech, and any act that restrains
speech is presumed invalid, and "any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted
with furrowed brows," it is important to stress not all prior
restraints on speech are invalid. Certain previous restraints may
be permitted by the Constitution, but determined only upon a
careful evaluation of the challenged act as against the appropriate
test by which it should be measured against.

As worded, Section 19 provides an arbitrary standard by which the

Department of Justice may exercise this power to restrict or block access. A
prima facie finding is sui genesis and cannot be accepted as basis to stop
speech even before it is made. It does not provide for judicially determinable
parameters. It, thus, ensures that all computer data will automatically be
subject to the control and power of the Department of Justice. This provision
is a looming threat that hampers the possibility of free speech and
expression through the Internet. The sheer possibility that the State has the
ability to unilaterally decide whether data, ideas or thoughts constitute
evidence of a prima facie commission of a cybercrime will limit the free
exchange of ideas, criticism, and communication that is the bulwark of a free
democracy.
There is no question that Section 19 is, thus, unconstitutional.
V
Cyber Libel
Also unconstitutional is Section 4(c)(4) which reads:
SEC. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses:
 (4) Libel. The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may
be devised in the future.

The intent of this provision seems to be to prohibit the defense that libel
committed through the use of a computer is not punishable. Respondents
counter that, to date, libel has not been declared unconstitutional as a
violation of the rights to free speech, freedom of expression, and of the
press.
Reference to Article 355 of the Revised Penal Code in Section 4 (c) (4) resulted
in the implied incorporation of Articles 353 and 354 as well. Articles 353 to
355 of the Revised Penal Code provide:
Title Thirteen
CRIMES AGAINST HONOR
Chapter One
LIBEL
Section One. Definitions, forms, and punishment of this crime.
Art. 353. Definition of libel. A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation
is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
 Art. 355. Libel means by writings or similar means. A libel
committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prision
correccional in its minimum and medium periods or a fine ranging
from 200 to 6,000 pesos, or both, in addition to the civil action
which may be brought by the offended party.

The ponencia claims that "libel is not a constitutionally protected speech"

and "that government has an obligation to protect private individuals from
defamation." 158
I strongly dissent from the first statement. Libel is a label that is often used to
stifle protected speech. I agree with the second statement but only to the
extent that defamation can be protected with civil rather than criminal
liabilities.
Given the statutory text, the history of the concept of criminal libel and our
court's experience with libel, I am of the view that its continued
criminalization especially in platforms using the internet unqualifiedly
produces a "chilling effect" that stifles our fundamental guarantees of free
expression. Criminalizing libel contradicts our notions of a genuinely
democratic society.
V (B)
As Currently Worded,
Libel is Unconstitutional
The crime of libel in its 1930 version in the Revised Penal Code was again
reenacted through the Cybercrime Prevention Act of 2012. It simply added
the use of the internet as one of the means to commit the criminal acts. The
reenactment of these archaic provisions is unconstitutional for many
reasons. At minimum, it failed to take into consideration refinements in
the interpretation of the old law through decades of jurisprudence. It
now stands starkly in contrast with the required constitutional
protection of freedom of expression.
The ponencia fails to account for the evolution of the requirement of malice
in situations involving public officers and public figures. At best, the majority
will have us believe that jurisprudence can be read into the current text of
the libel law as referred to in the Cybercrime Prevention Act of 2012.
However, this does not appear to be the intent of the legislature based on
the text of the provision. Congress reenacted the provisions defining and
characterizing the crime of libel as it was worded in 1930. I concur with
Justice Carpio's observations that the law as crafted fails to distinguish the
malice requirement for criticisms of public officers (and public figures) on the
one hand and that for ordinary defamation of private citizens carefully
crafted by jurisprudence. Understandably, it creates doubt on the part of
those who may be subject to its provisions. The vagueness of the current
text, reenacted by reference by Rep. Act No. 10175 is as plain as day.
It is difficult to accept the majority's view that present jurisprudence is read
into the present version of the law. This is troubling as it is perplexing. The
majority of the 200 plus members of the House of Representatives and the
24 Senators chose the old text defining the crime of libel. The old text does
not conform to the delicate balance carved out by jurisprudence. Just the
sheer number of distinguished and learned lawyers in both chambers would
rule out oversight or negligence. As representatives of our people, they
would have wanted the crime to be clearly and plainly spelled out so that the
public will be properly informed. They could not have wanted the ordinary
Filipino to consult the volumes of Philippine Reports in order to find out that
the text did not mean plainly what it contained before they exercised their
right to express.
It is, thus, reasonable to presume that Congress insists on the plain meaning
of the old text. Possibly, through inaction, they would replace jurisprudential
interpretation of the freedom of expression clause in relation to defamation
by reenacting the same 1930 provisions.
V (C)
Negating the Balance Struck
Through Jurisprudence
A survey of these constant efforts in jurisprudence to qualify libel as
provided in the old statute is needed to understand this point. EADSIa
United States v. Bustos 159 interpreted the requirement of malice for libel
under Act No. 277. 160 This court ruled that "malice in fact" is required to
sustain a conviction under the law when there are "justifiable motives
present" in a case. Thus:
In an action for libel suppose the defendant fails to prove that the
injurious publication or communication was true. Can he relieve
himself from liability by showing that it was published with
"justifiable motives" whether such publication was true or false or
even malicious? There is no malice in law when "justifiable
motives" exist, and, in the absence of malice, there is no libel
under the law. (U.S. vs. Lerma, supra.) But if there is malice in
fact, justifiable motives can not exist. The law will not allow one
person to injure another by an injurious publication, under the
cloak of "good ends" or "justifiable motives," when, as a matter of
fact, the publication was made with a malicious intent. It is then a
malicious defamation. The law punishes a malicious defamation
and it was not intended to permit one to maliciously injure
another under the garb of "justifiable motives." When malice
in fact is shown to exist the publisher can not be relieved from
liability by a pretense of "justifiable motives." Section 3
relieves the plaintiff from the necessity of proving malice
simply when no justifiable motives are shown, but it does not
relieve the defendant from liability under the guise of
"justifiable motives" when malice actually is proved. The
defense of "the truth" of the "injurious publication" (sec. 4) and its
character as a privileged communication (sec. 9) means nothing
more than the truth in one instance and the occasion of making it
in the other together with proof of justifiable motive, rebuts the
prima facie inference of malice in law and throws upon the plaintiff
or the State, the onus of proving malice in fact. The publication of a
malicious defamation, whether it be true or not, is clearly an
offense under Act No. 277. 161 (Emphasis supplied)

Actual malice as a requirement evolved further.

It was in the American case of New York Times Co. v. Sullivan, 162 which this
court adopted later on, 163 that the "actual malice" 164 requirement was
expounded and categorically required for cases of libel involving public
officers. In resolving the issue of "whether . . . an action brought by a public
official against critics of his official conduct, abridges the freedom of speech
and of the press that is guaranteed by the First and Fourteenth
Amendments", 165 the New York Times case required that actual malice should
be proven when a case for defamation "includes matters of public concern,
public men, and candidates for office." 166 Thus:
Like insurrection, contempt, advocacy of unlawful acts, breach of the
peace, obscenity, solicitation of legal business, and the various other
formulae for the repression of expression that have been challenged
in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that
satisfy the First Amendment.
The general proposition that freedom of expression upon public
questions is secured by the First Amendment has long been settled
by our decisions. The constitutional safeguard, we have said,
"was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the
people." Roth v. United States, 354 U.S. 476, 484.
The maintenance of the opportunity for free political discussion
to the end that government may be responsive to the will of the
people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system.
xxx xxx xxx
Injury to official reputation affords no more warrant for
repressing speech that would otherwise be free than does
factual error. Where judicial officers are involved, this Court has
held that concern for the dignity and reputation of the courts
does not justify the punishment as criminal contempt of
criticism of the judge or his decision. Bridges v. California, 314 U.S.
252. This is true even though the utterance contains "half-
truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331,
342, 343, n. 5, 345. Such repression can be justified, if at all, only by a
clear and present danger of the obstruction of justice. See also Craig
v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375. If judges are to
be treated as "men of fortitude, able to thrive in a hardy climate,"
Craig v. Harvey, supra, 331 U.S. at 376, surely the same must be true
 of other government officials, such as elected city commissioners.
Criticism of their official conduct does not lose its constitutional
protection merely because it is effective criticism, and hence
diminishes their official reputations. Stromberg v. California, 283 U.S.
359, 369. 167 (Emphasis supplied)

Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio
M. Capulong, 168 as affirmed in the case of Borjal v. Court of Appeals, 169
adopted the doctrine in New York Times to "public figures." In Ayer
Productions:
A limited intrusion into a person's privacy has long been regarded
as permissible where that person is a public figure and the
information sought to be elicited from him or to be published
about him constitute of a public character. Succinctly put, the right
of privacy cannot be invoked resist publication and dissemination
of matters of public interest. The interest sought to be protected by
the right of privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate
public concern. 170

Public figures were defined as:

A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved
some degree reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other
entertainment. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, an infant prodigy, and no less a personage than
the Grand Exalted Ruler of a lodge. It includes, in short, anyone
who has arrived at a position where public attention is focused
upon him as a person.
Such public figures were held to have lost, to some extent at least, their
tight to privacy. Three reasons were given, more or less
 indiscriminately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it; that
their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had
a privilege, under the Constitution, to inform the public about those who
have become legitimate matters of public interest. On one or another of
these grounds, and sometimes all, it was held that there was no
liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused. ScEaAD

The privilege of giving publicity to news, and other matters of public

interest, was held to arise out of the desire and the right of the public to
know what is going on in the world, and the freedom of the press and
other agencies of information to tell it. "News" includes all events and
items of information which are out of the ordinary hum-drum
routine, and which have 'that indefinable quality of information
which arouses public attention.' To a very great extent the press, with
its experience or instinct as to what its readers will want, has
succeeded in making its own definition of news, as a glance at any
morning newspaper will sufficiently indicate. It includes homicide
and other crimes, arrests and police raids, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with
a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago,
and undoubtedly many other similar matters of genuine, if more or
less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to
information or education, or even entertainment and amusement, by
books, articles, pictures, films and broadcasts concerning interesting
phases of human activity in general, as well as the reproduction of the
public scene in newsreels and travelogues. In determining where to
draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they
were understandably liberal in allowing the benefit of the doubt. 171
(Emphasis supplied)

This doctrine was reiterated in Vasquez v. Court of Appeals. 172 Petitioner was
charged with libel for allegedly defaming his Barangay Chairperson in an
article published in the newspaper, Ang Tinig ng Masa. Petitioner allegedly
caused the dishonor and discredit of the Barangay Chairperson through the
malicious imputation that the public officer landgrabbed and that he was
involved in other illegal activities. In acquitting the petitioner:
The question is whether from the fact that the statements were
defamatory, malice can be presumed so that it was incumbent upon
petitioner to overcome such presumption. Under Art. 361 of the
Revised Penal Code, if the defamatory statement is made against a
public official with respect to the discharge of his official duties and
functions and the truth of the allegation is shown, the accused will be
entitled to an acquittal even though he does not prove that the
imputation was published with good motives and for justifiable ends.
xxx xxx xxx
In denouncing the Barangay chairman in this case, petitioner and the
other residents of the Tondo Foreshore Area were not only acting in
their self-interest but engaging in the performance of a civic duty to
see to it that public duty is discharged faithfully and well by those on
whom such duty is incumbent. The recognition of this right and
duty of every citizen in a democracy is inconsistent with any
requirement placing on him the burden of proving that he acted
with good motives and for justifiable ends.
For that matter, even if the defamatory statement is false, no
liability can attach if it relates to official conduct, unless the
public official concerned proves that the statement was made
with actual malice that is, with knowledge that it was false or
with reckless disregard of whether it was false or not. This is the
gist of the ruling in the landmark case of New York Times v.
Sullivan, which this Court has cited with approval in several of
its own decisions. This is the rule of "actual malice."
A rule placing on the accused the burden of showing the truth of
allegations of official misconduct and/or good motives and
justifiable ends for making such allegations would not only be
contrary to Art. 361 of the Revised Penal Code. It would, above
all, infringe on the constitutionally guaranteed freedom of
expression. Such a rule would deter citizens from performing their
duties as members of a self-governing community. Without free
speech and assembly, discussions of our most abiding concerns as a
nation would be stifled. As Justice Brandeis has said, "public
 discussion is a political duty" and the "greatest menace to freedom is
an inert people." 173 (Emphasis supplied)

Guingguing v. Court of Appeals 174 involved the publication of information on

private complainant's criminal cases including photographs of him being
arrested. This court again reiterated:
[Article 354 of the Revised Penal Code], as applied to public figures
complaining of criminal libel, must be construed in light of the
constitutional guarantee of free expression, and this Court's
precedents upholding the standard of actual malice with the
necessary implication that a statement regarding a public figure if
true is not libelous. The provision itself allows for such leeway,
accepting as a defense "good intention and justifiable motive." The
exercise of free expression, and its concordant assurance of
commentary on public affairs and public figures, certainly qualify as
"justifiable motive," if not "good intention."

xxx xxx xxx

As adverted earlier, the guarantee of free speech was enacted
to protect not only polite speech, but even expression in its
most unsophisticated form. Criminal libel stands as a necessary
qualification to any absolutist interpretation of the free speech
clause, if only because it prevents the proliferation of untruths which
if unrefuted, would gain an undue influence in the public discourse.
But in order to safeguard against fears that the public debate
might be muted due to the reckless enforcement of libel laws,
truth has been sanctioned as a defense, much more in the case
when the statements in question address public issues or
involve public figures. 175 (Emphasis supplied)

In Villanueva v. Philippine Daily Inquirer, Inc., 176 despite the respondents' false
reporting, this court continued to apply the actual malice doctrine that
evolved from Ayer Productions. Hence:
A newspaper, especially one national in reach and coverage, should be free
to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another
on criminal or civil charges for malice or damages, i.e., libel, so long as the
newspaper respects and keeps within the standards of morality and civility
prevailing within the general community. 177
v (D)
Overbreadth by Reenactment
With the definite evolution of jurisprudence to accommodate free speech
values, it is clear that the reenactment of the old text of libel is now
unconstitutional. Articles 353, 354, and 355 of the Revised Penal Code and
by reference, Section 4(c)4 of the law in question are now overbroad as it
prescribes a definition and presumption that have been repeatedly struck
down by this court for several decades.
A statute falls under the overbreadth doctrine when "a governmental
purpose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms." 178 Section 4 (c) (4) of
Rep. Act No. 10175 and Articles 353, 354, and 355 produce a chilling effect on
speech by being fatally inconsistent with Ayer Productions as well as by
imposing criminal liability in addition to civil ones. Not only once, but several
times, did this court uphold the freedom of speech and expression under
Article III, Section 4 of the 1987 Constitution 179 over an alleged infringement
of privacy or defamation. This trend implies an evolving rejection of the
criminal nature of libel and must be expressly recognized in view of this
court's duty to uphold the guarantees under the Constitution. AcHaTE

The threat to freedom of speech and the public's participation in matters of

general public interest is greater than any satisfaction from imprisonment of
one who has allegedly "malicious[ly] imput[ed] . . . a crime, or . . . a nice or
defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or . . . blacken[ed] the memory of [the] dead." 180
The law provides for other means of preventing abuse and unwarranted
attacks on the reputation or credibility of a private person. Among others,
this remedy is granted under the Chapter on Human Relations in the Civil
Code, particularly Articles 19, 181 20, 182 21, 183 and even 26. 184 There is, thus,
no cogent reason that a penal statute would overbroadly subsume the
primordial right of freedom of speech provided for in the Constitution.
V (E)
 Dangers to Protected Speech Posed by Libel
Exacerbated in the Internet
The effect on speech of the dangerously broad provisions of the current law
on libel is even more palpable in the internet.
Libel under Article 353 is textually defined as the:
. . . public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who
is dead. (Emphasis supplied)

Social media allows users to create various groups of various sizes. Some of
these sites are for specific purposes. Others are only open to a select group
of "friends" or "followers". The ponencia's distinction between the author
and those who share (or simply express their approval) of the posted
message oversimplifies the phenomenon of exchanges through these sites.
Social media or social networking sites are websites that primarily exist to
allow users to post a profile online and exchange or broadcast messages and
information with their friends and contacts. 185
Social media or social networking as it is used today began in the United
States in 1994 when Beverly Hills Internet created the online community
known as Geocities. 186 In Geocities, individuals were able to design custom-
made websites using hypertext mark-up language or HTML and upload
content online. This community then paved the way for widespread online
interaction, leading to the inception of America Online's Instant Messenger,
where subscribers of the internet service provider could send real-time
exchanges through the network. This led to the prevalence of instant
messaging applications such as ICQ and online chatrooms such as mIRC. 187
In 1999, British website Friends Reunited was the first popular online hub
whose primary purpose was to allow users to interact and reconnect with
former classmates through the internet. 188 Friendster, launched in 2002,
became one the first and largest online social networking sites, reaching up
to 117 million users before its decline. 189 The site was dedicated to
connecting with as many people as possible, without a need for prior
physical contact or established relationships. MySpace, another social
networking site launched in 2003, garnered more visitors than popular
search engine sites Google and Yahoo in 2006. 190 These online social
networking sites have had several popular iterations such as Multiply,
LiveJournal or Blogger, which serve as venues for individuals who wish to
post individual journal entries, photographs or videos.
Today, the most popular social networking sites are Facebook and Twitter.
Facebook, which was initially known as Facesmash for exclusive use of
Harvard University students and alumni, began in 2003. Eventually, Facebook
became the most prevalent and ubiquitous online social networking site,
with some 750 million users worldwide, as of July 2011. 191
Twitter gained popularity immediately after its founding in 2006. It gained
prominence by positioning itself as a real-time information network while
allowing ease of access and immediate sharing to an expanding set of users.
To date, Twitter has about 750 million registered users, with about 200
million users making use of the platform on a regular basis. 192 In its latest
initial public offering, Twitter disclosed that there are over 500 million tweets
(messages with a 140-character limit) made in a day. 193
The most recent social networking phenomenon is Instagram, which was
launched in October 2010. This application allows instantaneous sharing of
photographs especially through smartphones. Today, Instagram has 150
million active users and with over 1.5 billion "likes" of photos shared on the
network every day. 194
These platforms in social media allow users to establish their own social
network. It enables instantaneous online interaction, with each social
networking platform thriving on its ability to engage more and more users. In
order to acquire more users, the owners and developers of these social
media sites constantly provide their users with more features, and with more
opportunities to interact. The number of networks grows as each participant
is invited to bring in more of their friends and acquaintances to use the
platforms. Social media platforms, thus, continue to expand in terms of its
influence and its ability to serve as a medium for human interaction. These
also encourage self-expression through words, pictures, video, and a
combination of these genres.
There can be personal networks created through these platforms simply for
conversations among friends. Like its counterpart in the real world, this can
be similar to a meeting over coffee where friends or acquaintances exchange
views about any and all matters of their interest. In normal conversation, the
context provided by the participants' relationships assure levels of
confidence that will allow them to exchange remarks that may be caustic,
ironic, sarcastic or even defamatory.
With social media, one's message in virtual conversations may be reposted
and may come in different forms. On Facebook, the post can be "shared"
while on Twitter, the message can be "retweeted." In these instances, the
author remains the same but the reposted message can be put in a different
context by the one sharing it which the author may not have originally
intended. The message that someone is a thief and an idiot in friendly and
private conversation when taken out of that context will become defamatory.
This applies regardless of the standing of the subject of conversation: The
person called a thief and an idiot may be an important public figure or an
ordinary person.
The ponencia proposes to exonerate the user who reposts but maintain the
liability of the author. This classification is not clear anywhere in the text of
the law. Parenthetically, whether calling someone a thief or an idiot is
considered defamatory is not also clear in the text of the law.
Even if we assume arguendo that this is a reasonable text-based distinction,
the result proposed by the majority does not meet the proposed intent of
the law. Private individuals (as opposed to public officials or figures) are
similarly maligned by reposts.
This shows the arbitrariness of the text of the law as well as the
categorization proposed by the ponencia. It leaves too much room for the
law enforcer to decide which kinds of posts or reposts are defamatory. The
limits will not be clear to the speaker or writer. Hence, they will then limit
their expression or stifle the sharing of their ideas. They are definite victims
of the chilling effect of the vagueness of the provisions in question.
The problem becomes compounded with messages that are reposted with or
without comment. The following tweets are examples which will provide the
heuristic to understand the problem:
 Form A: "@marvicleonen: RT @somebody: Juan is a liar, a thief and
an idiot" #thetruth
Form B:"@marvicleonen: This! RT @somebody: Juan is a liar, a thief
and an idiot" #thetruth

Both are posts from a user with the handle @marvicleonen. RT means that
the following message was only reposted (retweeted), and the hashtag
#thetruth is simply a way of categorizing one's messages. The hashtag itself
may also contain speech elements.
Form A is a simple report. The reasons for reporting are ambiguous. Since
reporting is only a matter of a click of a button, it could be that it was done
without a lot of deliberation. It is also possible that the user agreed with the
message and wanted his network to know of his agreement. It is possible
that the user also wanted his network to understand and accept the
message.
Form B is a repost with a comment "This!". While it may be clearer that there
is some deliberation in the intent to share, it is not clear whether this is an
endorsement of the statement or simply sarcasm. This form is not part of the
categorization proposed by the ponencia.
There are other permutations as there are new platforms that continue to
emerge. Viber and WhatsApp for instance now enable SMS users to create
their own network.
There are other problems created by such broad law in the Internet. The
network made by the original author may only be of real friends of about 10
people. The network where his or her post was shared might consist of a
thousand participants. Again, the current law on libel fails to take these
problems of context into consideration.
A post, comment or status message regarding government or a public figure
has the tendency to be shared. It easily becomes "viral." After all, there will
be more interest among those who use the Internet with messages that
involve issues that are common to them or are about people that are known
to them usually public officers and public figures. When the decision in
this case will be made known to the public, it is certain to stimulate Internet
users to initially post their gut reactions. It will also entice others to write
thought pieces that will also be shared among their friends and followers.
Then, there is the problem of extraterritoriality and the evils that it spawns
on speech. Enforcement of the crime of libel will be viable only if the speaker
is within our national territory. Those residing in other countries are beyond
our jurisdiction. To be extradited, they will have to have laws similar to ours.
If they reside in a state different from our 1930 version of libel, then we will
have the phenomenon of foreigners or expatriates having more leeway to
criticize and contribute to democratic exchanges than those who have stayed
within our borders.
The broad and simplistic formulation now in Article 353 of the Revised Penal
Code essential for the punishment of cyber libel can only cope with these
variations produced by the technologies in the Internet by giving law
enforcers wide latitude to determine which acts are defamatory. There are
no judicially determinable standards. The approach will allow subjective case-
by-case ad hoc determination. There will be no real notice to the speaker or
writer. The speaker or writer will calibrate speech not on the basis of what
the law provides but on who enforces it.
This is quintessentially the chilling effect of this law.
The threat of being prosecuted for libel stifles the dynamism of the
conversations that take place in cyberspace. These conversations can be
loose yet full of emotion. These can be analytical and the product of
painstaking deliberation. Other conversations can just be exponential
combinations of these forms that provide canisters to evolving ideas as
people from different communities with varied identities and cultures come
together to test their messages.
Certainly, there will be a mix of the public and the private; the serious and
the not so serious. But, this might be the kind of democratic spaces needed
by our society: a mishmash of emotion and logic that may creatively spring
solutions to grave public issues in better and more entertaining ways than a
symposium of scholars. Libel with its broad bright lines, thus, is an
anachronistic tool that may have had its uses in older societies: a monkey
wrench that will steal inspiration from the democratic mob.
V (F)
 No State Interest in Criminalizing Libel
The kinds of speech that are actually deterred by libel law are more valuable
than the state interest that is sought to be protected by the crime. Besides,
there are less draconian alternatives which have very minimal impact on the
public's fundamental right of expression. Civil actions for defamation do not
threaten the public's fundamental right to free speech. They narrow its
availability such that there is no unnecessary chilling effect on criticisms of
public officials or policy. They also place the proper economic burden on the
complainant and, therefore, reduce the possibility that they be used as tools
to harass or silence dissenters. aEIADT

The purposes of criminalizing libel come to better light when we review its
history. This court has had the opportunity to trace its historical
development. Guingguing v. Court of Appeals 195 narrated:
Originally, the truth of a defamatory imputation was not considered
a defense in the prosecution for libel. In the landmark opinion of
England's Star Chamber in the Libelis Famosis case in 1603, two major
propositions in the prosecution of defamatory remarks were
established: first, that libel against a public person is a greater
offense than one directed against an ordinary man, and second, that
it is immaterial that the libel be true. These propositions were due to
the fact that the law of defamatory libel was developed under
the common law to help government protect itself from
criticism and to provide an outlet for individuals to defend their
honor and reputation so they would not resort to taking the law
into their own hands.

Our understanding of criminal libel changed in 1735 with the trial and
acquittal of John Peter Zenger for seditious libel in the then English colony of
New York. Zenger, the publisher of the New-York Weekly Journal, had been
charged with seditious libel, for his paper's consistent attacks against Colonel
William Cosby, the Royal Governor of New York. In his defense, Zenger's
counsel, Andrew Hamilton, argued that the criticisms against Governor
Cosby were "the right of every free-born subject to make when the
matters so published can be supported with truth." The jury, by
acquitting Zenger, acknowledged albeit unofficially the defense of truth in a
libel action. The Zenger case also laid to rest the idea that public officials were
immune from criticism.
The Zenger case is crucial, not only to the evolution of the doctrine of
criminal libel, but also to the emergence of the American democratic
ideal. It has been characterized as the first landmark in the tradition
of a free press, then a somewhat radical notion that eventually
evolved into the First Amendment in the American Bill of Rights and
also proved an essential weapon in the war of words that led into the
American War for Independence.
Yet even in the young American state, the government paid less than
ideal fealty to the proposition that Congress shall pass no law
abridging the freedom of speech. The notorious Alien and Sedition
Acts of 1798 made it a crime for any person who, by writing,
speaking or printing, should threaten an officer of the government
with damage to his character, person, or estate. The law was passed
at the insistence of President John Adams, whose Federalist Party
had held a majority in Congress, and who had faced persistent
criticism from political opponents belonging to the Jeffersonian
Republican Party. As a result, at least twenty-five people, mostly
Jeffersonian Republican editors, were arrested under the law. The
Acts were never challenged before the U.S. Supreme Court, but they
were not subsequently renewed upon their expiration.
The massive unpopularity of the Alien and Sedition Acts contributed
to the electoral defeat of President Adams in 1800. In his stead was
elected Thomas Jefferson, a man who once famously opined, "Were
it left to me to decide whether we should have a government without
newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter." 196

It was in that case where the court noted the history of early American media
that focused on a "mad dog rhetoric" approach. This, in turn, led the court to
conclude that "[t]hese observations are important in light of the
misconception that freedom of expression extends only to polite, temperate,
or reasoned expression. . . . Evidently, the First Amendment was designed to
protect expression even at its most rambunctious and vitriolic form as it had
prevalently taken during the time the clause was enacted." 197
The case that has defined our understanding of the concept of modern libel
the New York Times Co. v. Sullivan 198 then followed. As discussed earlier,
the New York Times case required proof of actual malice when a case for
defamation "includes matters of public concern, public men, and candidates
for office." 199
The cases of Garrison v. Louisiana, and Curtis Publishing Co. v. Butts both
expanded the New York Times' actual malice test to public officials and public
figures, respectively. 200
Libel in the Philippines first emerged during the Spanish colonial times. The
Spanish Penal Code criminalized "rebellion, sedition, assaults, upon persons
in authority, and their agents, and contempts, insults, injurias, and threats
against persons in authority and insults, injurias, and threats against their
agents and other public officers." 201 Thus, noting the developments in both
the Spanish and American colonial periods, it was correctly observed that:
The use of criminal libel to regulate speech especially speech
critical of foreign rule or advocating Philippine independence
was a feature of both the Spanish and American colonial regimes.
The Spanish Penal Code and the Penal Code of the Philippines
made insult and calumny a crime. In the early 1900s, the Philippine
Commission (whose members were all appointed by the President
of the United States) punished both civil and criminal libel under
Act No. 277, one of its earliest laws. 202

During the American occupation, Governor-General William Howard Taft

explained how "libel was made into a criminal offense in the Philippines
because 'the limitations of free speech are not very well understood' unlike
in the US"' 203 Then came the case of U.S. v. Ocampo, 204 where Martin
Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, and Faustino
Aguilar were charged with libel in connection with the publication of the
article "Birds of Prey" in the newspaper El Renacimiento. The article allegedly
defamed Philippine Commission member and Interior Secretary Mr. Dean C.
Worcester. This court affirmed the conviction of Ocampo and Kalaw stating
that there were no justifiable motives found in the publication of the article.
In essence, Philippine libel law is "a 'fusion' of the Spanish law on defamacion
and the American law on libel." 205 It started as a legal tool to protect
government and the status quo. The bare text of the law had to be qualified
through jurisprudential interpretation as the fundamental right to expression
became clearer. In theory, libel prosecution has slowly evolved from
protecting both private citizens and public figures to its modern notion of
shielding only private parties from defamatory utterances.
But, a survey of libel cases during the past two (2) decades will reveal that the
libel cases that have gone up to the Supreme Court 206 generally involved
notable personalities for parties. Relatively, libel cases that involve private
parties before the Supreme Court are sparse. 207 Dean Raul Pangalangan,
former dean of the. University of the Philippines College of Law and now
publisher of the Philippine Daily Inquirer, observed that "libel cases are
pursued to their conclusion mainly by public figures, . . . [since those filed] by
private persons are settled amicably before the prosecutor." 208 Among the
cases that reached the Supreme Court were those involving offended parties
who were electoral candidates, 209 ambassadors and business tycoons, 210
lawyers, 211 actors or celebrities, 212 corporations, 213 and, public officers. 214
Even court officials have been involved as complainants in libel cases. 215
This attests to the propensity to use the advantages of criminal libel by those
who are powerful and influential to silence their critics. Without doubt, the
continuous evolution and reiteration of the jurisprudential limitations in the
interpretation of criminal libel as currently worded has not been a deterrent.
The present law on libel as reenacted by Section 4 (c) (4) of Rep. Act No.
10175 will certainly do little to shield protected speech. This is clear because
there has been no improvement in statutory text from its version in 1930.
Libel law now is used not so much to prosecute but to deter speech. What is
charged as criminal libel may contain precious protected speech. There is
very little to support the view of the majority that the law will not continue to
have this effect on speech.
This court has adopted the American case of Garrison v. Louisiana, albeit
qualifiedly, in recognizing that there is an "international trend in diminishing
the scope, if not the viability, of criminal libel prosecutions." 216 Garrison
struck down the Louisiana Criminal Defamation Statute and held that the
statute incorporated constitutionally invalid standards when it came to
criticizing or commenting on the official conduct of public officials.
It is time that we now go further and declare libel, as provided in the Revised
Penal Code and in the Cybercrime Prevention Act of 2012, as
unconstitutional.
This does not mean that abuse and unwarranted attacks on the reputation
or credibility of a private person will not be legally addressed. The legal
remedy is civil in nature and granted in provisions such as the Chapter on
Human Relations in the Civil Code, particularly Articles 19, 20, and 21 217
These articles provide:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
Article 20. Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the same.
Article 21. Any person who wilfully causes loss or injury to another
in manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.

This court previously discussed the nature and applicability of Articles 19 to

21 of the Civil Code, stating that:
[Article 19], known to contain what is commonly referred to as the
principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights but also in the
performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty
and good faith. The law, therefore, recognizes a primordial limitation
on all rights; that in their exercise, the norms of human conduct set
forth in Article 19 must be observed. A right, though by itself legal
because recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is exercised in a
manner which does not conform with the norms enshrined in Article
19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be held responsible. But
while Article 19 lays down a rule of conduct for the government of
human relations and for the maintenance of social order, it does not
provide a remedy for its violation. Generally, an action for damages
under either Article 20 or Article 21 would be proper.
 Article 20, which pertains to damage arising from a violation of law,
provides that:
Art. 20.Every person who contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the same.
. . . Article 21 of the Civil Code provides that:
Art. 21.Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
This article, adopted to remedy the "countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury" [Id.] should
"vouchsafe adequate legal remedy for that untold number of moral
wrongs which it is impossible for human foresight to provide for
specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-
27155, May 18, 1978, 83 SCRA 237, 247].
In determining whether or not the principle of abuse of rights may
be invoked, there is no rigid test which can be applied.
While the Court has not hesitated to apply Article 19 whether the
legal and factual circumstances called for its application [See for
e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v.
CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-
48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-
46558, July 31, 1981, 106 SCRA 391; United General Industries, Inc, v.
Paler, G.R. No. L-30205, March 15, 1982; 112 SCRA 404; Rubio v. CA,
G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of
whether or not the principle of abuse of rights has been violated
resulting in damages under Article 20 or Article 21 or other
applicable provision of law, depends on the circumstances of each
case. . . . 218

In affirming award of damages under Article 19 of the Civil Code, this court
has said that "[t]he legitimate state interest underlying the law of libel is the
compensation of the individuals for the harm inflicted upon them by
defamatory falsehood. After all, the individual's right to protection of his own
good name 'reflects no more than our basic concept of the essential dignity
and worth of every human being a concept at the root of any decent
system of ordered liberty.'" 219
In a civil action, the complainant decides what to allege in the complaint, how
much damages to request, whether to proceed or at what point to
compromise with the defendant. Whether reputation is tarnished or not is a
matter that depends on the toleration, maturity, and notoriety of the person
involved. Varying personal thresholds exists. Various social contexts will vary
at these levels of toleration. Sarcasm, for instance, may be acceptable in
some conversations but highly improper in others.
In a criminal action, on the other hand, the offended party does not have full
control of the case. He or she must get the concurrence of the public
prosecutor as well as the court whenever he or she wants the complaint to
be dismissed. The state, thus, has its own agency. It will decide for itself
through the prosecutor and the court.
Criminalizing libel imposes a standard threshold and context for the entire
society. It masks individual differences and unique contexts. Criminal libel, in
the guise of protecting reputation, makes differences invisible.
Libel as an element of civil liability makes defamation a matter between the
parties. Of course, because trial is always public, it also provides for
measured retribution for the offended person. The possibility of being sued
also provides for some degree of deterrence.
The state's interest to protect private defamation is better served with laws
providing for civil remedies for the affected party. It is entirely within the
control of the offended party. The facts that will constitute the cause of
action will be narrowly tailored to address the perceived wrong. The relief,
whether injunctive or in damages, will be appropriate to the wrong.
Declaring criminal libel as unconstitutional, therefore, does not mean that
the state countenances private defamation. It is just consistent with our
democratic values. ADEaHT

VI
Cybersex is Unconstitutional
Section 4 (c) (1) of Rep. Act No. 10175 is also overbroad and, therefore,
unconstitutional. As presently worded:
 SEC. 4. Cybercrime Offenses. The following acts constitute the
offense of cybercrime punishable under this Act:
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system,
for favor or consideration.

The ponencia invites us to go beyond the plain and ordinary text of the law
and replace it with the deliberations in committees that prepared the
provision. Thus, it claims: "(t)he Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography,i.e., by webcam." 220
The majority is not clear why the tighter language defining the crimes of
prostitution and white slavery was not referred to clearly in the provision.
Neither does it explain the state's interest in prohibiting intimate private
exhibition (even for favor or consideration) by web cam as opposed to
physical carnal knowledge required now in the crime of prostitution.
Worse, the ponencia fails to appreciate the precarious balance that decades
of jurisprudence carved out in relation to criminalizing expression with
sexual content. Instead, the ponencia points out that the ". . . subject of
section 4 (c) (1) lascivious exhibition of sexual organs or sexual activity is
not novel. Article 201 of the RPC punishes 'obscene publications and
exhibitions and indecent shows." 221 Again, we are thrown back to the 1930
version of the Revised Penal Code. With constant and painstaking tests that
will bring enlightenment to expression with sexual content evolved through
jurisprudence, it seems that we, as a society, are being thrown back to the
dark ages.
VI (B)
Sweeping Scope of Section 4 (c) (1)
This provision is too sweeping in its scope.
As worded, it unreasonably empowers the state to police intimate human
expression. The standard for "lascivious exhibition" and the meaning of
"sexual organ or sexual activity" empowers law enforcers to pass off their
very personal standards of their own morality. Enforcement will be strict or
loose depending on their tastes. Works of art sold in the market in the form
of photographs, paintings, memes, and other genre posted in the Internet
would have to shape their expression in accordance with the tastes of local
law enforcers. Art whether free, sold or bartered will not expand our
horizons; it will be limited by the status quo in our culture wherein the
dominant themes will remain dominant. There will be patriarchal control
over what is acceptable intimate expression.
This provision, thus, produces a chilling effect. It provides for no restrictions
to power and allows power to determine what is "lascivious" and what is not.
Respondents concede that certain artistic works even if they feature
nudity and the sexual act are protected speech. They argue that the
interpretation of the provision should allow for these kinds of expression.
However, this reading cannot be found from the current text of the
provision. The Solicitor General, though an important public officer, is not the
local policeman in either an urban or rural setting in the Philippines.
Certain art works that depict the nude human body or the various forms of
human intimacies will necessarily have a certain degree of lasciviousness.
Human intimacy, depicted in the sexual act, is not sterile. It is necessarily
evocative, expressive, and full of emotions. Sexual expression can be
titillating and engaging. It is to be felt perhaps more than it should be
rationally understood.
Michaelangelo's marble statue, David, powerfully depicted an exposed
Biblical hero. Sandro Boticelli's painting, Birth of Venus, emphatically portrays
the naked, full-grown mythological Roman goddess Venus. The Moche erotic
pots of Peru depict various sexual acts. These representations of human
nakedness may be lascivious for some but expressively educational for
others. This can be in images, video files, scientific publications, or simply the
modes of expression by Internet users that can be exchanged in public.
VI (C)
Standards for "Obscenity"
This is not the first time that this court deals with sexually-related expression.
This court has carefully crafted operative parameters to distinguish the
"obscene" from the protected sexual expression. While I do not necessarily
agree with the current standards as these have evolved, it is clear that even
these standards have not been met by the provision in question. I definitely
agree that "lascivious" is a standard that is too loose and, therefore,
unconstitutional.
Even for this reason, the provision cannot survive the constitutional
challenge.
Obscenity is not easy to define. 222 In Pita v. Court of Appeals, we recognized
that "individual tastes develop, adapt to wide-ranging influences, and keep in
step with the rapid advance of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the present generation.
James Joyce and D.H. Lawrence were censored in the thirties yet their works
are considered important literature today." 223
Using the concept of obscenity or defining this term is far from being settled.
224 The court's task, therefore, is to "[evolve] standards for proper police
conduct faced with the problem" and not so much as to arrive at the perfect
definition. 225
In Gonzales v. Kalaw-Katigbak, 226 we noted the persuasiveness of Roth v.
United States 227 and borrowed some of its concepts in judging obscenity.
There is persuasiveness to the approach followed in Roth: 'The
early leading standard of obscenity allowed material to be judged
merely by the effect of an isolated excerpt upon particularly
susceptible persons. Regina v. Hicklin [1968] LR 3 QB 360. Some
American courts adopted this standard but later decisions have
rejected it and substituted this test: whether to the average
person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to
prurient interest. The Hicklin test, judging obscenity by the effect
of isolated passages upon the most susceptible persons, might well
encompass material legitimately treating with sex, and so it must
be rejected as unconstitutionally restrictive of the freedoms of
speech and press. On the other hand, the substituted standard
provides safeguards to withstand the charge of constitutional
infirmity." 228 (Emphasis supplied)aIEDAC
Thus, at present, we follow Miller v. California, 229 a United States case, as the
latest authority on the guidelines in characterizing obscenity. 230
The guidelines, which already integrated the Roth standard on prurient
interest, are as follows:
a. Whether the 'average person, applying contemporary standards'
would find the work, taken as a whole, appeals to the prurient
interest . . .;
b. Whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law;
and
c. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value. 231

The guidelines in Miller were adopted in Pita v. Court of Appeals 232 and
Fernando v. Court of Appeals, 233 It was also cited in the 2009 case of Soriano v.
Laguardia 234 wherein we stated:
Following the contextual lessons of the cited case of Miller v. California 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. 235
The tests or guidelines cited above were created and applied as
demarcations between protected expression or speech and obscene
expressions. The distinction is crucial because censorship or prohibition
beyond these guidelines is a possible danger to the protected freedom. For
this reason, the courts, as "guard[ians] against any impermissible
infringement on the freedom of . . . expression," "should be mindful that no
violation of such is freedom is allowable." 236
The scope of the cybersex provision is defective. Contrary to the minimum
standards evolved through jurisprudence, the law inexplicably reverts to the
use of the term "lascivious" to qualify the prohibited exhibition of one's
sexuality. This effectively broadens state intrusion. It is an attempt to reset
this court's interpretation of the constitutional guarantee of freedom of
expression as it applies to sexual expression.
First, the current text does not refer to the standpoint of the "average
person, applying contemporary standards." Rather it refers only to the law
enforcer's taste.
Second, there is no requirement that the "work depicts or describes in a
patently offensive way sexual conduct" 237 properly defined by law. Instead, it
simply requires "exhibition of sexual organs or sexual activity" 238 without
reference to its impact on its audience.
Third, there is no reference to a judgment of the "work taken as a whole" 239
and that this work "lacks serious literary, artistic, political or scientific" value.
Rather, it simply needs to be "lascivious." 240
Roth v. United States 241 sheds light on the relationship between sex and
obscenity, and ultimately, cybersex as defined in Rep. Act No. 10175 and
obscenity:
However, sex and obscenity are not synonymous. Obscene
material is material which deals with sex in a manner appealing to
prurient interest. The portrayal of sex, e.g., in art, literature and
scientific works, is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a
great and mysterious motive force in human life, has indisputably
been a subject of absorbing interest to mankind through the ages;
it is one of the vital problems of human interest and public
concern. 242

This court adopted these views in Gonzales v. Kalaw-Katigbak. 243

VI (D)
Obscenity and Equal Protection
Some of the petitioners have raised potential violations of the equal
protection clause in relation to provisions relating to obscenity.
We are aware that certain kinds of offensive and obscene expression can be
stricken down as unconstitutional as it violates the equal protection clause.
At this point, any assessment of this argument must require the framework
of adversarial positions arising from actual facts. However, a survey of this
argument may be necessary in order to show that even the current text will
not be able to survive this challenge. DEcTIS
Catharine MacKinnon suggests that there is a conflict between the
application of doctrines on free expression and the idea of equality between
the sexes. 244 The issue of obscenity, particularly pornography, is "legally
framed as a vehicle for the expression of ideas." 245 Pornography, in essence,
is treated as "only words" or expressions that are distinct from what it does
(from its acts). 246 As such, it is accorded the status of preferred freedom,
without regard to its harmful effects, that is perpetuating a social reality that
women are subordinate to men. 247 Hence, in protecting pornography as an
expression, the actions depicted become protected in the name of free
expression. 248
The issue of inequality had, in the past, been rendered irrelevant when faced
with the issue of obscenity or pornography. 249 This was not addressed by
our jurisprudence on obscenity. 250 The guidelines on determining what is
obscene are premised on the idea that men and women are equal and
viewed equally which basically pertains to the male's point of view of
equality that women are inferior. 251
In treating pornography, therefore, as protected expression, it is alleged that
the State protects only the men's freedom of speech. 252 Simultaneously,
however, women's freedom of speech is trampled upon. 253 Each time
pornography is protected as free expression, the male view of equality is
perpetuated. 254 It becomes more and more integrated into the
consciousness of the society, silencing women, and rendering the reality of
female subordination so unremarkable that it becomes inconsequential and
even doubtful. 255
Others do not agree with MacKinnon's view. According to Edwin Baker,
MacKinnon's theory "fails to recognize or provide for the primary value of or
justification for protecting expression." 256 It fails to recognize the status of
this freedom vis a vis individual liberty, and why this freedom is fundamental.
257 More than through arguments about ideas, people induce changes and
transform their social and political environments through expressive
behavior. 258 Also, being able. to participate in the process of social and
political change is "encompassed in the protected liberty." 259
Baker provides an example, thus:
Even expression that is received less as argument than "masturbation
material", becomes a part of a cultural or behavioral "debate" about
sexuality, about the nature of human relations, and about pleasure and
morality, as well as about the roles of men and women. Historically,
puritanical attempts to suppress sexually explicit materials appear largely
designed to shut down this cultural contestation in favor of a traditional
practice of keeping women in the private sphere. Opening up this cultural
debate has in the past, and can in the future, contribute to progressive
change. 260
251.See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From
Pornography, Civil Rights, and Speech, in DOING ETHICS 301.
Baker also points out that MacKinnon disregards that receivers of
communicated expressions are presumably autonomous agents who bear
the responsibility for their actions and are capable of moral choice. 261
The expression should also be treated as independent of the act or offense.
The expression or "autonomous act of the speaker does not itself cause . . .
harm. Rather, the harm occurs through how the other person, presumably
an autonomous agent whom we normally treat as bearing the responsibility
for her own acts, responds." 262
Baker agrees that expressions "[construct] the social reality in which
[offenses] take place." 263 However, the expression itself is not the offense.
264

Part of the reason to protect speech, or, more broadly, to protect

liberty, is a commitment to the view that people should be able to
participate in constructing their world, or to the belief that this
popular participation provides the best way to move toward a
better world. The guarantee of liberty represents a deep faith in
people and in democracy. 265

Punishing or even threatening to punish "lascivious exhibition of sexual

organs or sexual activity" through "the aid of a computer system" for "favor
or consideration" does nothing to alleviate the subordination of women.
Rather, it facilitates the patriarchy. It will allow control of what a woman does
with her body in a society that will be dominated by men or by the ideas that
facilitate men's hegemony.
The current provision prohibiting cybersex will reduce, through its chilling
effect, the kind of expression that can be the subject of mature discussion of
our sexuality. The public will, therefore, lose out on the exchanges relating to
the various dimensions of our relationships with others. The cybersex
provisions stifles speech, aggravates inequalities between genders, and will
only succeed to encrust the views of the powerful.
If freedom of expression is a means that allows the minority to be heard,
then the current version of this law fails miserably to protect it. It is
overbroad and unconstitutional and should not be allowed to exist within
our constitutional order.
VI (E)
Child Pornography Different from Cybersex
It is apt to express some caution about how the parties confused child
pornography done through the Internet and cybersex.
Section 4 (c) (2), which pertains to child pornography, is different from the
cybersex provision. The provision on child pornography provides:
(2) Child Pornography. The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.

In my view, this provision should survive constitutional challenge.

Furthermore, it is not raised in this case. The explicit reference to the Anti-
Pornography Law or Republic Act No. 9775 constitutes sufficient standard
within which to base the application of the law and which will allow it to
survive a facial challenge for now.
VII
Traffic Data and Warrants
Section 12 of the Cybercrime Prevention Act of 2012 provides:
Real-Time Collection of Traffic Data Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical
or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
 Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but not
content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and
the showing:
(1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed, or is being
committed, or is about to be committed:
(2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to
the solution of, or to the prevention of, any such crimes; and
(3) that there are no other means readily available for obtaining such
evidence.

VII (B)
Traffic Data and Expression
Traffic data, even as it is defined, still contains speech elements. When, how,
to whom, and how often messages are sent in the Internet may nuance the
content of the speech. The message may be short (as in the 140-character
limit of a tweet) but when it is repeated often enough in the proper context,
it may imply emphasis or desperation. That a message used the email with a
limited number of recipients with some blind carbon copies (Bcc)
characterizes the message when it is compared to the possibility of actually
putting the same content in a public social media post.
The intended or unintended interception of these parts of the message may
be enough deterrent for some to make use of the space provided in
cyberspace. The parameters are so loosely and broadly defined as "due
cause" to be determined by "law enforcers". Given the pervasive nature of
the Internet, it can rightly be assumed by some users that law enforcers will
make use of this provision and, hence, will definitely chill their expression.
Besides, the provision insofar as it allows warrantless intrusion and
interception by law enforcers upon its own determination of due cause
does not specify the limits of the technologies that they can use. Traffic data
is related to and intimately bound to the content of the packets of
information sent from one user to the other or from one user to another
server. The provision is silent on the limits of the technologies and methods
that will be used by the law enforcer in tracking traffic data. This causes an
understandable apprehension on the part of those who make use of the
same servers but who are not the subject of the surveillance. Even those
under surveillance even only with respect to the traffic data have no
assurances that the method of interception will truly exclude the content of
the message.
As observed by one author who sees the effect of general and roving
searches on freedom of expression:
Most broadly, freedom from random governmental monitoring of
both public spaces and recorded transactions might be an
essential predicate for self definition and development of the
viewpoints that make democracy vibrant. This reason to be
concerned about virtual searches, while somewhat amorphous, is
important enough to have been remarked on by two Supreme Court
justices. The first wrote, 'walking and strolling and wandering. . . have
been in part responsible for giving our people the feeling of
independence and self-confidence, the feeling of creativity. These
amenities have dignified the right to dissent and have honoured the
right to be nonconformists and the right to defy submissiveness.
They have encouraged lives of high spirits rather than hushed
suffocating silence.' The second justice wrote:
Suppose that the local police in a particular jurisdiction were to
decide to station a police car at the entrance to the parking lot of a
well-patronised bar from 5:30 p.m. to 7:30 p.m. every day. . . I would
guess that the great majority of people. . . would say that this is not a
proper police function. . . There would be an uneasiness, and I think
a justified uneasiness, if those who patronised the bar felt that their
names were being taken down and filed for future reference. . . This
 ought not to be governmental function when the facts are as
extreme as I put them. 266

It will be different if it will be in the context of a warrant from a court of law.

Its duration, scope, and targets can be more defined. The methods and
technologies that will be used can be more limited. There will thus be an
assurance that the surveillance will be reasonably surgical and provided on
the basis of probable cause. Surveillance under warrant, therefore, will not
cause a chilling effect on internet expression.
In Blo Umpar Adiong v. COMELEC, 267 this court reiterated:
A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may
not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota,
19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved.
The breadth of legislative abridgment must be viewed in the light of
less drastic means for achieving the same basic purpose. HScAEC

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court

invalidated an ordinance prohibiting all distribution of literature at
any time or place in Griffin, Georgia, without a license, pointing out
that so broad an interference was unnecessary to accomplish
legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L
ed 155, 60 S Ct. 146, the Court dealt with ordinances of four
different municipalities which either banned or imposed prior
restraints upon the distribution of handbills. In holding the
ordinances invalid, the court noted that where legislative
abridgment of fundamental personal rights and liberties is
asserted, "the courts should be astute to examine the effect of the
challenged legislation. Mere legislative preferences or beliefs
respecting matters of public convenience may well support
regulation directed at other personal activities, but be insufficient
to justify such as diminishes the exercise of rights so vital to the
 maintenance of democratic institutions," 308 US, at 161. In Cantwell
v. Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352,
the Court said that "[c]onduct remains subject to regulation for the
protection of society," but pointed out that in each case "the power
to regulate must be so exercised as not, in attaining a permissible
end, unduly to infringe the protected freedom." (310 US at 304)
(Shelton v. Tucker, 364 US 479 [1960] 268

Section 12 of Rep. Act No. 10175 broadly authorizes law enforcement

authorities "with due cause" to intercept traffic data in real time. "Due cause"
is a uniquely broad standard different from the "probable cause"
requirement in the constitution or the parameters of "reasonable searches"
in our jurisprudence.
The statute does not care to make use of labels of standards replete in our
jurisprudence. It foists upon the public a standard that will only be defined
by those who will execute the law. It therefore amounts to a carte blanche
and roving authority whose limits are not statutorily limited. Affecting as it
does our fundamental rights to expression, it therefore is clearly
unconstitutional.
VII (C)
Traffic Data and Privacy Rights
Traffic data is defined by the second paragraph of Section 12 of Rep. Act No.
10175, thus:
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.

As worded, the collection, aggregation, analysis, storage and dissemination

of these types of data may implicate both the originator's and the recipient's
rights to privacy.
That these data move through privately owned networks, administered by
private internet service providers, and run through privately owned internet
exchange nodes is no moment. We will have to decide in some future case
(where the facts and controversy would be clearer and more concrete) the
nature and levels of intrusion that would be determined as a "reasonable
search" and the uses of such data that would be reasonable "seizures" within
the meaning of Article III, Section 2 of the Constitution. In such cases, we will
have to delimit the privacy interests in the datum in question as well as in the
data that may be collaterally acquired.
There are many types of "searches".

There are instances when the observation is done only for purposes
of surveillance. In these types of "searches," the law enforcers may not yet
have a specific criminal act in mind that has already been committed.
Perhaps, these are instances when government will just want to have
access to prevent the occurrence of cyber attacks of some kind.
Surveillance can be general, i.e., one where there is no specific actor being
observed. Some general surveillance may also be suspicionless. This
means that there is no concrete indication that there will be some
perpetrator. It is the surveillance itself that is the preventive action to
deter any wrongdoing. It can also be specific, i.e., that there is already an
actor or a specific group or classification of actors that is of interest to the
government.
Then, there are the "searches" which are more properly called investigations.
That is, that there is already a crime that has been committed or certain to be
committed and law enforcers will want to find evidence to support a case.
Then there is the "search" that simply enables law enforcers to enter a
physical or virtual space in order to retrieve and preserve evidence already
known to law enforcers.
For the moment, it is enough to take note that almost all of our
jurisprudence in this regard has emerged from physical intrusions into
personal spaces.
In In the Matter of the Petition for the Writ of the Petition for Issuance of Writ of
Habeas Corpus of Camilo L. Sabio v. Gordon, 269 this court explained the
determination of a violation of the right of privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless excused
by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from
our conviction that the right to privacy is a "constitutional right" and
"the right most valued by civilized men," but also from our adherence
 to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy"
and "everyone has the right to the protection of the law against such
interference or attacks."
Our Bill of Rights, enshrined in Article III of the Constitution,
provides at least two guarantees that explicitly create zones of
privacy. It highlights a person's "right to be let alone" or the "right to
determine what, how much, to whom and when information about
himself shall be disclosed." Section 2 guarantees "the right of the
people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of
whatever nature and for any purpose." Section 3 renders
inviolable the "privacy of communication and correspondence"
and further cautions that "any evidence obtained in violation of
this or the preceding section shall be inadmissible for any
purpose in any proceeding."
In evaluating a claim for violation of the right to privacy, a court
must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion. 270

"Reasonable expectations of privacy," however, may not be the only criterion

that may be useful in situations arising from Internet use. Some have
suggested that in view of the infrastructure or the permeability of the
networks created virtually and its cosmopolitarian or cross-cultural
character, it may be difficult to identify what may be the normative
understanding of all the participants with respect to privacy. 271 It has been
suggested that privacy may best be understood in its phases, i.e., a core
inalienable category where personal information is within the control of the
individual, the right to initial disclosure, and the right for further
dissemination. 272
In People v. Chua Ho San, 273 this court made an explicit connection between
the right to privacy and the right against unreasonable searches and
seizures. Even then, based on the facts there alleged, a search was described
as a "State intrusion to a person's body, personal effects or residence":
Enshrined in the Constitution is the inviolable right to privacy of
home and person. It explicitly ordains that people have the right to
 be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for
any purpose. Inseparable, and not merely corollary or incidental to
said right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in
violation of said right is inadmissible for any purpose in any
proceeding.
The Constitutional proscription against unreasonable searches and
seizures does not, of course, forestall reasonable searches and
seizure. What constitutes a reasonable or even an unreasonable
search in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved.
Verily, the rule is, the Constitution bars State intrusions to a
person's body, personal effects or residence except if conducted by
virtue of a valid search warrant issued in compliance with the
procedure outlined in the Constitution and reiterated in the Rules
of Court; "otherwise such search and seizure become
'unreasonable' within the meaning of the aforementioned
constitutional provision." 274

In the more recent case of Valeroso v. People, 275 this court held that:
Unreasonable searches and seizures are the menace against which
the constitutional guarantees afford full protection. While the
power to search and seize may at times be necessary for public
welfare, still it may be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for no
enforcement of any statute is of sufficient importance to justify
indifference to the basic principles of government. Those who are
supposed to enforce the law are not justified in disregarding the
rights of an individual in the name of order. Order is too high a
price to pay for the loss of liberty. 276

Very little consideration, if any, has been taken of the speed of information
transfers and the ephemeral character of information exchanged in the
Internet.
I concede that the general rule is that in order for a search to be considered
reasonable, a warrant must be obtained. In Prudente v. Dayrit: 277
 For a valid search warrant to issue, there must be probable cause,
which is to be determined personally by the judge, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. The probable
cause must be in connection with one specific offense and the
judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under
oath, the complainant and any witness he may produce, on facts
personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
The "probable cause" for a valid search warrant, has been defined
"as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense
are in the place sought to be searched." This probable cause must
be shown to be within the personal knowledge of the complainant
or the witnesses he may produce and not based on mere hearsay.
278 (Citations omitted)

However, not all searches without a warrant are per se invalid. Jurisprudence
is replete with the exceptions to the general rule.
In People v. Rodrigueza, 279 this court reiterated the enumeration of the
instances when a search and seizure may be conducted reasonably without
the necessity of a search warrant:
As provided in the present Constitution, a search, to be valid, must
generally be authorized by a search warrant duly issued by the
proper government authority. True, in some instances, this Court
has allowed government authorities to conduct searches and
seizures even without a search warrant. Thus, when the owner of
the premises waives his right against such incursion; when the
search is incidental to a lawful arrest; when it is made on vessels
and aircraft for violation of customs laws; when it is made on
automobiles for the purpose of preventing violations of smuggling
or immigration laws; when it involves prohibited articles in plain
view; or in cases of inspection of buildings and other premises for
the enforcement of fire, sanitary and building regulations, a search
 may be validly made even without a search warrant. 280 (Citations
omitted)

In specific instances involving computer data, there may be analogies with

searches of moving or movable vehicles. People v. Bagista 281 is one of many
that explains this exception:
The constitutional proscription against warrantless searches and
seizures admits of certain exceptions. Aside from a search incident
to a lawful arrest, a warrantless search had been upheld in cases of
a moving vehicle, and the seizure of evidence in plain view.
With regard to the search of moving vehicles, this had been
justified on the ground that the mobility of motor vehicles makes it
possible for the vehicle to be searched to move out of the locality
or jurisdiction in which the warrant must be sought.
This in no way, however, gives the police officers unlimited
discretion to conduct warrantless searches of automobiles in the
absence of probable cause. When a vehicle is stopped and
subjected to an extensive search, such a warrantless search has
been held to be valid only as long as the officers conducting the
search have reasonable or probable cause to believe before the
search that they will find the instrumentality or evidence pertaining
to a crime, in the vehicle to be searched. 282 (Citations omitted)

Then again in People v. Balingan, 283 this court held that there was a valid
search and seizure, even if done in a moving vehicle. It gave the rationale for
this holding:
We also find no merit in appellant's argument that the marijuana
flowering tops should be excluded as evidence, they being the
products of an alleged illegal warrantless search. The search and
seizure in the case at bench happened in a moving, public vehicle.
In the recent case of People vs. Lo Ho Wing, 193 SCRA 122 (1991),
this Court gave its approval to a warrantless search done on a
taxicab which yielded the illegal drug commonly known as shabu. In
that case, we raciocinated:
xxx xxx xxx
The contentions are without writ. As correctly averred by appellee,
that search and seizure must be supported by a valid warrant is not
 an absolute rule. There are at least three (3) well-recognized
exceptions thereto. As set forth in the case of Manipon, Jr. vs.
Sandiganbayan, these are: [1] a search incidental to an arrest, [2] a
search of a moving vehicle, and [3] seizure of evidence in plain view
(emphasis supplied). The circumstances of the case clearly show
that the search in question was made as regards a moving vehicle.
Therefore, a valid warrant was not necessary to effect the search
on appellant and his co-accused.
In this connection, We cite with approval the averment of the
Solicitor General, as contained in the appellee's brief, that the rules
governing search and seizure have over the years been steadily
liberalized whenever a moving vehicle is the object of the search on
the basis of practicality. This is so considering that before a warrant
could be obtained, the place, things and persons to be searched
must be described to the satisfaction of the issuing judge a
requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can
transport contraband from one place to another with impunity. We
might add that a warrantless search of a moving vehicle is justified
on the ground that "it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought." 284

Another instance of a reasonable and valid warrantless search which can be

used analogously for facts arising from Internet or computer use would be in
instances where the existence of the crime has been categorically
acknowledged. People v. De Gracia, 285 explains:
The next question that may be asked is whether or not there was a
valid search and seizure in this case. While the matter has not been
squarely put in issue, we deem it our bounden duty, in light of
advertence thereto by the parties, to delve into the legality of the
warrantless search conducted by the raiding team, considering the
gravity of the offense for which herein appellant stands to be
convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar
Sales Office were not armed with a search warrant at that time. The
raid was actually precipitated by intelligence reports that said office
was being used as headquarters by the RAM. Prior to the raid,
 there was a surveillance conducted on the premises wherein the
surveillance team was fired at by a group of men coming from the
Eurocar building. When the military operatives raided the place, the
occupants thereof refused to open the door despite requests for
them to do so, thereby compelling the former to break into the
office. The Eurocar Sales Office is obviously not a gun store and it is
definitely not an armory or arsenal which are the usual
depositories for explosives and ammunition. It is primarily and
solely engaged in the sale of automobiles. The presence of an
unusual quantity of high-powered firearms and explosives could
not be justifiably or even colorably explained. In addition, there was
general chaos and disorder at that time because of simultaneous
and intense firing within the vicinity of the office and in the nearby
Camp Aguinaldo which was under attack by rebel forces. The courts
in the surrounding areas were obviously closed and, for that
matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion
that the instant case falls under one of the exceptions to the
prohibition against a warrantless search. In the first place, the
military operatives, taking into account the facts obtaining in this
case, had reasonable ground to believe that a crime was being
committed. There was consequently more than sufficient probable
cause to warrant their action. Furthermore, under the situation
then prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. The trial judge
himself manifested that on December 5, 1989 when the raid was
conducted, his court was closed. Under such urgency and exigency
of the moment, a search warrant could lawfully be dispensed with.
286

But the internet has created other dangers to privacy which may not be
present in the usual physical spaces that have been the subject of searches
and seizures in the past. Commercial owners of servers and information
technologies as well as some governments have collected data without the
knowledge of the users of the internet. It may be that our Data Privacy Law
287 may be sufficient.

Absent an actual case therefore, I am not prepared to declare Section 12 of

Rep. Act 10175 as unconstitutional on the basis of Section 2 or Section 3 (a)
of Article III of the Constitution. My vote only extends to its declaration of
unconstitutionality because the unlimited breadth of discretion given to law
enforcers to acquire traffic data for "due cause" chills expression in the
internet. For now, it should be stricken down because it violates Article III,
Section 4 of the Constitution.
VIII
Limitations on Commercial Speech
are Constitutional
I dissent from the majority in their holding that Section 4 (c) (3) of Rep. Act
No. 10175 is unconstitutional. This provides:
"(3) Unsolicited Commercial Communications. The transmission
of commercial electronic communication with the use of computer
system which seek to advertise, sell, or offer for sale product and
services are prohibited unless:
"(i) there is prior affirmative consent from the
recipient; or
"(ii) the primary intent of the communication is for
service and/or administrative announcements from
the sender to its existing users, subscribers or
customers; or
"(iii) the following conditions are present:
"(aa) the commercial electronic communication
contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial
electronic messages (opt out) from the same
source;
"(bb) the commercial electronic communication
does not purposely disguise the source of the
electronic message; and
"(cc) the commercial electronic communication
does not purposely include misleading
information in any part of the message in order
to induce the recipients to read the message."
On the origins of this provision, the Senate Journal's reference to the
deliberations on the Cybercrime Law 288 states:
Unsolicited Commercial Communications in Section 4(C)(3)
This offense is not included in the Budapest Convention. Although
there is an ongoing concern against receiving spams or unsolicited
commercial e-mails sent in bulk through the computer or
telecommunication network, Section 4(C)(3) is too general in the
sense it can include a simple email from one person to another
person, wherein the sender offers to sell his house or car to the
receiver. Therefore, to avoid such acts of injustice, Section 4(C)(3)
should be narrowed.
Senator Angara accepted the recommendation as he clarified that
what the bill covers is unsolicited emails in bulk. 289

VIII (B)
Section 4 (c) (3) Has No Chilling Effect
on Speech of Lower Value
Section 4 (c) (3) of Rep. Act No. 10175 on unsolicited commercial
communication has no chilling effect. It is narrowly drawn. Absent an actual
case, it should not be declared as unconstitutional simply on the basis of its
provisions. I dissent, therefore, in the majority's holding that it is
unconstitutional.
Commercial speech merited attention in 1996 in Iglesia ni Cristo v. Court of
Appeals. 290 In Iglesia ni Cristo, this court stated that commercial speech is
"low value" speech to which the clear and present danger test is not
applicable. 291
In 2007, Chief Justice Reynato Puno had the opportunity to expound on the
treatment of and the protection afforded to commercial speech in his
concurring and separate opinion in Pharmaceutical and Health Care
Association of the Philippines v. Duque III. 292 Writing "to elucidate another
reason why the absolute ban on the advertising and promotion of breastmilk
substitutes . . . should be struck down," 293 he explained the concept of
commercial speech and traced the development of United States
jurisprudence on commercial speech:
The advertising and promotion of breastmilk substitutes properly
falls within the ambit of the term commercial speech-that is, speech
that proposes an economic transaction. This is a separate category
of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.
A look at the development of jurisprudence on the subject would
show us that initially and for many years, the United States Supreme
Court took the view that commercial speech is not protected by the
First Amendment. It fastened itself to the view that the broad powers
of government to regulate commerce reasonably includes the power
to regulate speech concerning articles of commerce.
This view started to melt down in the 1970s. In Virginia Pharmacy
Board v. Virginia Citizens Consumer Council, the U.S. Supreme court
struck down a law prohibiting the advertising of prices for
prescription drugs. It held that price information was important to
consumers, and that the First Amendment protects the "right to
receive information" as well as the right to speak. It ruled that
consumers have a strong First Amendment interest in the free flow
of information about goods and services available in the marketplace
and that any state regulation must support a substantial interest.
SEDICa

Central Hudson Gas & Electric v. Public Service Commission is the

watershed case that established the primary test for evaluating the
constitutionality of commercial speech regulations. In this landmark
decision, the U.S. Supreme Court held that the regulation issued by
the Public Service Commission of the State of New York, which
reaches all promotional advertising regardless of the impact of the
touted service on overall energy use, is more extensive than
necessary to further the state's interest in energy conservation. In
addition, it ruled that there must be a showing that a more limited
restriction on the content of promotional advertising would not
adequately serve the interest of the State. In applying the First
Amendment, the U.S. Court rejected the highly paternalistic view that
the government has complete power to suppress or regulate
commercial speech.
Central Hudson provides a four-part analysis for evaluating the
validity of regulations of commercial speech. To begin with, the
 commercial speech must "concern lawful activity and not be
misleading" if it is to be protected under the First Amendment. Next,
the asserted governmental interest must be substantial. If both of
these requirements are met, it must next be determined whether the
state regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is necessary to
serve that interest. 294 (Citations omitted)

In his separate concurring opinion in Chavez v. Gonzales, 295 Justice Antonio

Carpio, citing Pharmaceutical and Health Care Association of the Philippines,
stated that "false or misleading advertisement" is among the instances in
which "expression may be subject to prior restraint," 296 thus:
The exceptions, when expression may be subject to prior restraint,
apply in this jurisdiction to only four categories of expression,
namely: pornography, false or misleading advertisement, advocacy
of imminent lawless action, and danger to national security. All other
expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, "[T]he First
Amendment (Free Speech Clause), subject only to narrow and well
understood exceptions, does not countenance governmental control
over the content of messages expressed by private individuals." 297
(Citations omitted)

Further in his separate concurring opinion, Justice Carpio reiterates this

point. Making reference to the norm in the United States, he states that
"false or deceptive commercial speech is categorized as unprotected
expression that may be subject to prior restraint". 298 Conformably, he also
cited Pharmaceutical and Health Care Association of the Philippines and its
having "upheld the constitutionality of Section 6 of the Milk Code requiring
the submission to a government screening committee of advertising
materials for infant formula milk to prevent false or deceptive claims to the
public."
In his twelfth footnote, Justice Carpio made reference to the state interest,
articulated in the Constitution itself, in regulating advertisements:
Another fundamental ground for regulating false or misleading
advertisement is Section 11(2), Article XVI of the Constitution which
states: "The advertising industry is impressed with public interest,
 and shall be regulated by law for the protection of consumers and
the promotion of the general welfare." 299

As acknowledged by the majority, "[c]ommercial speech is a separate

category of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection." 300
I agree that the basis of protection accorded to commercial speech rests in
its informative character: "[t]he First Amendment's concern for commercial
speech is based on the informational function of advertising": 301
Commercial expression not only serves the economic interest of
the speaker, but also assists consumers and furthers the societal
interest in the fullest possible [447 U.S. 557, 562] dissemination of
information. In applying the First Amendment to this area, we have
rejected the "highly paternalistic" view that government has
complete power to suppress or regulate commercial speech.
"[P]eople will perceive their own best interest if only they are well
enough informed, and . . . the best means to that end is to open the
channels of communication, rather than to close them. . . ." Id., at
770; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92
(1977). Even when advertising communicates only an incomplete
version of the relevant facts, the First Amendment presumes that
some accurate information is better than no information at all.
Bates v. State Bar of Arizona, supra, at 374. 302

Since it is valuable only to the extent of its ability to inform, advertising is not
at par with other forms of expression such as political or religious speech.
The other forms of speech are indispensable to the democratic and
republican mooring of the state whereby the sovereignty residing in the
people is best and most effectively exercised through free expression.
Business organizations are not among the sovereign people. While business
organizations, as juridical persons, are granted by law a capacity for rights
and obligations, they do not count themselves as among those upon whom
human rights are vested.
The distinction between commercial speech and other forms of speech is,
thus, self-evident. As the United States Supreme Court noted in a discursive
footnote in Virginia Pharmacy Board: 303
In concluding that commercial speech enjoys First Amendment
protection, we have not held that it is wholly undifferentiable from
other forms. There are commonsense differences between
speech that does "no more than propose a commercial
transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413
U.S., at 385, and other varieties. Even if the differences do not
justify the conclusion that commercial speech is valueless, and thus
subject to complete suppression by the State, they nonetheless
suggest that a different degree of protection is necessary to
insure that the flow of truthful and legitimate commercial
information is unimpaired. The truth of commercial speech, for
example, may be more easily verifiable by its disseminator than, let
us say, news reporting or political commentary, in that ordinarily
the advertiser seeks to disseminate information about a specific
product or service that he himself provides and presumably knows
more about than anyone else. Also, commercial speech may be
more durable than other kinds. Since advertising is the sine qua
non of commercial profits, there is little likelihood of its being
chilled by proper regulation and forgone entirely.
Attributes such as these, the greater objectivity and hardiness of
commercial speech, may make it less necessary to tolerate
inaccurate statements for fear of silencing the speaker.
Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964), with Dun
& Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it
appropriate to require that a commercial message appear in such a
form, or include such additional information, warnings, and
disclaimers, as are necessary to prevent its being deceptive.
Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. (1974),
with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert.
denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf.
United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924) ("It is
not difficult to choose statements, designs and devices which will not
deceive"). They may also make inapplicable the prohibition against
prior restraints. Compare New York Times Co. v. United States, 403 U.S.
713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191
(1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F.
Drew & Co. v. FTC, 235 F.2d 735, 739-740 (CA2 1956), cert. denied, 352
U.S. 969 (1957). 304 (Emphasis supplied)
It follows, therefore, that the state may validly suppress commercial speech
that fails to express truthful and accurate information. As emphasized in
Central Hudson: 305
The First Amendment's concern for commercial speech is based
on the informational function of advertising. See First National
Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Consequently,
there can be no constitutional objection to the suppression of
commercial messages that do not accurately inform the public
about lawful activity. The government may ban forms of
communication more likely to deceive the public than to inform it,
Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn.,
supra, at 464-465, or [447 U.S. 557, 564] commercial speech related
to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413
U.S. 376, 388 (1973).
If the communication is neither misleading nor related to unlawful
activity, the government's power is more circumscribed. The State
must assert a substantial interest to be achieved by restrictions on
commercial speech. Moreover, the regulatory technique must be in
proportion to that interest. The limitation on expression must be
designed carefully to achieve the State's goal. Compliance with this
requirement may be measured by two criteria. First, the restriction
must directly advance the state interest involved; the regulation may
not be sustained if it provides only ineffective or remote support for
the government's purpose. Second, if the governmental interest
could be served as well by a more limited restriction on commercial
speech, the excessive restrictions cannot survive. 306

Section 4 (c) (3) of the Rep. Act No. 10175 refers only to commercial speech
since it regulates communication that advertises or sells products or
services. These communications, in turn, proposes only commercial or
economic transactions. Thus, the parameters for the regulation of
commercial speech as articulated in the preceding discussions are squarely
applicable.
Definitely, there is no occasion for Section 4 (c) (3) to chill speech of
fundamental value. Absent an actual case, judicial review should not go past
that test. Hence, this provision should not be declared unconstitutional.
VIII (C)
 The Provision has a Valid Purpose
As noted by the majority, Section 4 (c) (3) refers to what, in contemporary
language, has been referred to as "spam". The origin of the term is explained
as follows:
The term "spam," as applied to unsolicited commercial email and
related undesirable online communication, is derived from a popular
Python sketch set in a cafe that includes the canned meat product
SPAM in almost every dish. As the waitress describes the menu with
increasing usage of the word "spam," a group of Vikings in the cafe
start singing, "Spam, spam, spam, spam, spam," drowning out all
other communication with their irrelevant repetitive song. 307

Spam is typified by its being unsolicited and repetitive as well as by its

tendency to drown out other communication. Compared with other forms of
advertising, spam has been distinguished as a negative externality. This
means that it imposes upon a party a cost despite such party's not having
chosen to engage in any activity that engenders such cost. Thus:
How does spam differ from legitimate advertising? If you enjoy
watching network television, using a social networking site, or
checking stock quotes online, you know that you will be subjected to
advertisements, many of which you may find relevant or even
annoying. Google, Yahoo!, Microsoft, Facebook, and others provide
valuable consumer services, such as search, news, and email,
supported entirely by advertising revenue. While people may resent
advertising, most consumers accept that advertising is a price they
pay for access to content and services that they value. By contrast,
unsolicited commercial email imposes a negative externality on
consumers without any market-mediated benefit, and without the
opportunity to opt-out. 308

The noxious effects of spam are clearly demonstrable. Any email user knows
the annoyance of having to sift through several spam messages in a
seemingly never ending quest to weed them out. Moreover, while certain
spam messages are readily identifiable, a significant number are designed
(or disguised) in such a way as to make a user think that they contain
legitimate content.
For instance, spam emails are given titles or headings like, "Please update
your information," "Conference Invitation," "Please Confirm," "Alert," "Hello
My Dearest," and "Unclaimed Check." Spam messages also make reference
to current events and civic causes.
Similarly, spam messages disguise themselves as coming from legitimate
sources by using subtle or inconspicuous alterations in sender information.
Thus, a letter "i," which appears in the middle of a word, is replaced with the
number "1," a letter "o" may be replaced with the number zero; a spam
message may be made to appear to come from the legitimate online
financial intermediary PayPal, when in fact, the sending address is
"paypol.com". At times, entirely false names are used, making spam
messages appear to come from relatively unfamiliar but ostensibly legitimate
senders such as low-key government agencies or civic organizations. As
noted by Cisco Systems: "The content in the message looks and sounds
much more legitimate and professional than it used to. Spam often closely
mimics legitimate senders' messages not just in style but by 'spoofing' the
sender information, making it look like it comes from a reputable sender." 309
The damage cost by spamming is manifest in calculable financial and
economic costs and not just in the nebulous vexation it causes users. IT
research firm Nuclear Research found that as far back as eleven (11) years
ago, in 2003, an average employee receives 13.3 spam messages a day.
Moreover, a person may spend as much as ninety (90) minutes a day
managing spam. This translates to 1.4% lost productivity per person per year
and an average cost of US$ 874 per employee per year. 310 A 2012 study also
noted that some US$20 billion is spent annually to fend off unwanted email
with US$6 billion spent annually on anti-spam software. 311
Apart from being associated with the vexation of users and costs
undermining productivity and efficiency, spamming is also a means for
actually attacking IT systems. The 2000 attack of the "I Love You" Worm,
which was earlier noted in this opinion, was committed through means of
email messages sent out to a multitude of users. While defensive
technologies against spamming have been developed (e.g., IP blacklisting,
crowd sourcing, and machine learning), spammers have likewise improved
on their mechanisms. The present situation is thus indicative of escalation,
an arms race playing out in cyberspace. As is typical of escalation, the
capacity of spammers to inflict damage has significantly increased. In 2003,
spamming botnets began to be used, thereby enabling the spread of
malware (i.e., malicious software):EADSIa

Blacklists gradually made it impossible for spammers to use their

own servers (or others' open relay servers) with fixed IP addresses.
Spammers responded with a "Whack-a-Mole" strategy, popping up
with a new computer IP address every time the old one got shut
down. This strategy was observed and named as early as 1996, and
eventually became considerably cheaper with another major
innovation in spam: the botnet.

A botnet is a network of "zombie" computers infected by a piece of malicious

software (or "malware") designed to enslave them to a master computer. The
malware gets installed in a variety of ways, such as when a user clicks on an
ad promising "free ringtones." The infected computers are organized in a
militaristic hierarchy, where early zombies try to infect additional
downstream computers and become middle managers who transmit
commands from the central "command and control" servers down to the
frontline computers
The first spamming botnets appeared in 2003. Static blacklists are
powerless against botnets. In a botnet, spam emails originate from
tens of thousands of IP addresses that are constantly changing
because most individual consumers have their IP addresses
dynamically allocated by Dynamic Host Control Protocol (DHCP).
Dynamic blacklisting approaches have since been developed; Stone-
Gross, Holz, Stringhini, and Vigna (2011) document that 90 percent of
zombie computers are blacklisted before the end of each day.
However, if the cable company assigns a zombie computer a new IP
address each day, that computer gets a fresh start and can once
again successfully send out spam. 312

Spam's capacity to deceive recipients through false and misleading headers,

content, and senders likewise makes it a viable means for phishing and
identity theft, thereby enabling spammers to gain control of user accounts
(e.g., online banking, social networking). This is demonstrated by the case of
Jeffrey Brett Goodin, the first person to be convicted under the United States'
Controlling the Assault of Non-Solicited Pornography and Marketing Act of
2003 (more briefly and popularly known as the CAN-SPAM Act). Goodin was
found guilty of sending emails to users of America Online (AOL). Posing as
someone from AOL's billing department, his emails directed users to go to
websites operated by Goodin himself. On the pretense that information was
necessary to prevent the termination of their AOL services, these websites
prompted users to supply personal and credit card information. This, in turn,
enabled Goodin to engage in fraudulent transactions. 313
There can be no more direct way of curtailing spamming and its deleterious
effects than by prohibiting the "transmission of commercial electronic
communication with the use of computer system which seek to advertise,
sell, or offer for sale products and services", 314 unless falling under any of
the enumerated exceptions, as Section 4 (c) (3) does. The preceding
discussion has clearly demonstrated the extent to which spamming
engenders or otherwise facilitates vexation, intrusions, larceny, deception,
violence, and economic damage. Spamming represents a hazard, and its
riddance will entail the concomitant curtailment of the perils it entails.
VIII (D)
The Provision is Narrowly Drawn
Section 4 (c) (3) is phrased in a manner that is sufficiently narrow. It is not a
blanket prohibition of the "transmission of commercial electronic
communication with the use of computer system which seek to advertise,
sell, or offer for sale products and services." 315 Quite the contrary, it
recognizes instances in which commercial information may be validly
disseminated electronically. It provides multiple instances in which such
communications are not prohibited.
First, when there is prior affirmative consent from the recipient.
Second, when it is primarily in the nature of a service and/or administrative
announcement sent by a service provider to its clients.
Third, when there is a means to opt out of receiving such communication,
such communication not being deceptive in that it purposely disguises its
source or does not purposely contain misleading information.
The first exception, far from curtailing free commercial expression, actually
recognizes it. It vests upon the parties to a communication, albeit with
emphasis on the receiver, the freedom to will for themselves if the
transmission of communication shall be facilitated. cEaTHD

The second exception recognizes that there are instances when a service
provider must necessarily disseminate information (with or without the
recipient's consent) to ensure the effective functioning and client's use of its
services.
The third exception directly deals with intentionally deceptive spam that
intends to ensnare users by not allowing them to opt out of receiving
messages.
Section 4 (c) (3) merely provides parameters to ensure that the dissemination
of commercial information online is done in a manner that is not injurious to
others. For as long as they are not vexatious (i.e., prior affirmative consent
and opt-out requirement) or misleading, to the extent that they are not
intrusive on their recipients, they may continue to be validly disseminated.
The opt-out provision provides the balance. Others may have as much right
to speak about their products and exaggerate as they offer to make a
commercial transaction. But that right is not an entitlement to vex others by
their repetitive and insistent efforts to insist that others listen even if the
customer has already declined. Commercial speech is protected only until it
ceases to inform.
A FINAL NOTE
"Section 4. No law shall be passed abridging the freedom of speech,
of expression or of the press . . ."

Rather than act with tempered but decisive vigilance for the protection of
these rights, we have precariously perched the freedoms of our people on
faith that those who are powerful and influential will not use the overly
broad provisions that prohibit libel, cyber libel, and cybersex against their
interests. We have exposed those that rely on our succor to the perils of
retaliation because we stayed our hand in declaring libel provisions as
unconstitutional. By diminishing the carefully drawn jurisprudential
boundaries of what is obscene and what is not, we have allowed the state to
unleash the dominant patriarchal notions of "lascivious" to police sexual
expression.
On the other hand, the majority has opted to strike down what appears to be
narrowly tailored protections against unsolicited commercial communication
through cyberspace. I decline to endow this kind of speech the
commercial and the corporate with more value. The balance struck by the
majority in this case weighs more heavily towards those who have more
resources and are more powerful. We have put the balance in favor of what
is in the hegemony. Legitimate dissent will be endangered.
That, to me, is not what the Constitution says.
The Constitution protects expression. It affirms dissent. The Constitution
valorizes messages and memes at the margins of our society. The
Constitution also insists that we will cease to become a democratic society
when we diminish our tolerance for the raw and dramatically delivered idea,
the uncouth defamatory remark, and the occasional lascivious
representations of ourselves.
What may seem odd to the majority may perhaps be the very kernel that
unlocks our collective creativity.
ACCORDINGLY, I vote to declare as unconstitutional for being overbroad
and violative of Article III, Section 4 of the Constitution the following
provisions of Republic Act No. 10175 or the Cybercrime Prevention Act of
2012:
(a) The entire Section 19 or the "take down" provision;
(b) The entire Section 4 (c) (4) on cyber libel as well as Articles
353, 354, and 355 on libel of the Revised Penal Code;
(c) The entire Section 4 (c) (1) on cybersex;
(d) Section 5 as it relates to Sections 4 (c) (1) and 4 (c) (4);
(e) Section 6 as it increases the penalties to Sections 4 (c) (1) and
4 (c) (4);
(f) Section 7 as it allows impermissibly countless prosecution of
Sections 4 (c) (1) and 4 (c) (4); and
(g) Section 12 on warrantless real-time traffic data surveillance.
I dissent with the majority in its finding that Section 4 (c) (3) on
Unsolicited Commercial Advertising is unconstitutional.
I vote to dismiss the rest of the constitutional challenges against the
other provisions in Republic Act No. 10175 as raised in the consolidated
petitions for not being justiciable in the absence of an actual case or
controversy. EHSIcT

(Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359,
|||

203378, 203391, 203407, 203440, 203453, 203454, 203469, 203501, 203509,

203515, 203518, [February 18, 2014], 727 PHIL 28-430)

[G.R. No. 97214. July 18, 1994.]

ERNESTO NAVALLO, petitioner, vs. HONORABLE

SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.

SYLLABUS

1. REMEDIAL LAW; SANDIGANBAYAN; ARRAIGNMENT OF ACCUSED AT THE

REGIONAL TRIAL COURT DOES NOT DEPRIVE THE SANDIGANBAYAN OF ITS
JURISDICTION TO TRY THE CASE; CASE AT BAR. Presidential Decree No.
1606 is explicit and clear. Sections 4 and 8 of the law provide that a case
falling under the jurisdiction of the Sandiganbayan shall be transferred to it
so long as the accused has not as yet been properly arraigned elsewhere on
the date of effectivity of the law, i.e., on 10 December 1978. The accused is
charged with having violated paragraph 4, Article 217, of the Revised Penal
Code, an offense which falls under Title VII of the Revised Penal Code and,
without question, triable by the Sandiganbayan. Navallo's arraignment
before the Regional Trial Court on 18 July 1985 is several years after
Presidential Decree No. 1606, consigning that jurisdiction to the
Sandiganbayan, had become effective.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; REQUISITES.
Double jeopardy requires the existence of the following requisites: (1) The
previous complaint or information or other formal charge is sufficient in
form and substance to sustain a conviction: (2) The court has jurisdiction to
try the case; (3) The accused has been arraigned and has pleaded to the
charge; and (4) The accused is convicted or acquitted or the case is dismissed
without his express consent. When all the above elements are present, a
second prosecution for (a) the same offense, or (b) an attempt to commit the
said offense, or (c) a frustration of the said offense, or (d) any offense which
necessarily includes, or is necessarily included in, the first offense charged,
can rightly be barred.
3. ID.; ID.;. ID.; CASE AT BAR. In the case at bench, the RTC was devoid of
jurisdiction when it conducted an arraignment of the accused which by then
had already been conferred on the Sandiganbayan. Moreover, neither did
the case there terminate with conviction or acquittal nor was it dismissed.
4. ID.; ID.; RIGHTS OF THE ACCUSED DURING CUSTODIAL INVESTIGATION;
RIGHT NOT AVAILABLE WHERE ONE IS UNDER NORMAL AUDIT
EXAMINATION. Accused-petitioner claims to have been deprived of his
constitutional rights under Section 12, Article III, of the 1987 Constitution.
Well-settled is the rule that such rights are invocable only when the accused
is under "custodial investigation," or is "in custody investigation," which we
have since defined as any "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." A person under a normal audit
examination is not under custodial investigation. An audit examiner himself
can hardly be deemed to be the law enforcement officer contemplated in the
above rule. In any case, the allegation of his having been "pressured" to sign
the Examination Report prepared by Dulguime appears to be belied by his
own testimony.
5. CRIMINAL LAW; MALVERSATION; PRESUMED WHERE PUBLIC OFFICER
FAILED TO ACCOUNT PUBLIC FUNDS OR PROPERTY WHICH HE IS CHARGED
WITH. Accused-petitioner challenges the sufficiency of evidence against
him. Suffice it to say that the law he contravened itself creates a presumption
of evidence. Article 217 of the Revised Penal Code states that "(t)he failure of
a public officer to have dully forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to
personal use." An accountable officer, therefore, may be convicted of
malversation even in the absence of direct proof of misappropriation as long
as there is evidence of shortage in his accounts which he is unable to explain.
6. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE TRIAL COURT,
GENERALLY UPHELD ON APPEAL. Findings of facts made by a trial court
are accorded the highest degree of respect by an appellate tribunal and,
absent a clear disregard of the evidence before it that can otherwise affect
the results of the case, those findings should not be ignored. We see nothing
on record in this case that can justify a deviation from the rule.

DECISION

VITUG, J :
p

On 11 May 1978, an information charging petitioner with having violated

Article 217, paragraph 4, of the Revised Penal Code, was filed with the then
Court of First Instance ("CFI") of Surigao del Norte (docketed Criminal Case
No. 299). It read:
"That on or before January 27, 1978 in the municipality of del
Carmen, Province of Surigao del Norte and within the jurisdiction of
this Honorable Court, accused who is the Collecting and Disbursing
Officer of the Numancia National Vocational School, which school is
also located at del Carmen, Surigao del Norte and while a Collecting
and Disbursing Officer of the aforestated school therefore was
holding in trust moneys and/or properties of the government of the
Republic of the Philippines and holding in trust public funds with all
freedom, intelligence, criminal intent and intent of gain, did then and
there voluntarily, unlawfully, feloniously and without lawful authority
appropriate and misappropriate to his own private benefit, public
funds he was holding in trust for the Government of the Philippines
in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY
THREE PESOS and SIXTY-TWO CENTAVOS (P16,483.62), Philippine
Currency, which total sum accused failed to account during an audit
and failed as well to restitute despite demands by the office of the
Provincial Auditor, to the damage and prejudice of the Government
equal to the amount misappropriated.
 "Act contrary to par. 4 of Article 217, of the Revised Penal Code with a
penalty of Reclusion Temporal, minimum and medium periods and in
addition to penalty of perpetual special disqualification and fine as
provided in the same Article." 1

A warrant of arrest was issue, followed by two alias warrants of arrest, but
accused-petitioner Ernesto Navallo still then could not be found.
Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect
creating the Sandiganbayan and conferring on it original and exclusive
jurisdiction over crimes committed by public officers embraced in Title VII of
the Revised Penal Code.
On 15 November 1984, Navallo was finally arrested. He was, however, later
released on provisional liberty upon the approval of his property bail bond.
When arraigned by the Regional Trial Court ("RTC") on 18 July 1985, he
pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC
transferred the case and transmitted its records to the Sandiganbayan. On
27 January 1989, Special Prosecutor Luz L. Quinones-Marcos opined that
since Navallo had already been arraigned before the case was transferred to
the Sandiganbayan, the RTC should continue taking cognizance of the case.
The matter was referred to the Office of the Ombudsman which held
otherwise. The information was docketed (Criminal Case No. 13696) with the
Sandiganbayan. A new order for Navallo's arrest was issued by the
Sandiganbayan. The warrant was returned with a certification by the RTC
Clerk of Court that the accused had posted a bail bond. The bond, having
been later found to be defective, on 30 August 1989, a new bond was
approved and transmitted to the Sandiganbayan. prcd

Navallo filed a motion to quash, contending (1) that the Sandiganbayan had
no jurisdiction over the offense and the person of the accused and (2) that
since the accused had already been arraigned by the RTC, the attempt to
prosecute him before the Sandiganbayan would constitute double jeopardy.
On 15 September 1989, the Sandiganbayan issued a resolution denying
Navallo's motion. On 20 October 1989, Navallo was arraigned; he pleaded,
"not guilty," to the charge. Trial ensued.
Evidence for the Prosecution:
On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio
Espino, made a preliminary audit examination of cash and other accounts of
Ernesto Navallo (then Collecting and Disbursing Officer of Numancia National
Vocational School). Espino found Navallo to be short of P16,483.62. The
auditor, however, was then merely able to prepare a cash count sheet since
he still had to proceed to other municipalities. Before departing, Espino
sealed the vault of Navallo.
On 30 January 1978, Leopoldo a. Dulguime was directed by Espino to
complete the preliminary examination and to conduct a final audit. Dulguime
broke the seal, opened the vault, and made a new cash count. Dulguime next
examined the cashbook of Navallo. Dulguime did not examine the official
receipts reflected in the cashbook, said receipts having been previously
turned over to the Office of the Provincial Auditor. After the audit, he had the
cashbook likewise deposited with the same office. The audit covered the
period from July 1976 to January 1978 on the basis of postings and record of
collections certified to by Navallo. Dulguime made a Report of Examination
and wrote Navallo a letter demanding the restitution of the missing amount.
The latter neither complied nor offered any explanation for the shortage. The
official receipts and cashbook, together with some other records, were
subsequently lost or damaged on account of a typhoon that visited the
province.
Evidence for the Defense:
The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia
National Vocational School. In 1976, he was appointed Collecting and
Disbursing Officer of the school. His duties included the collection of tuition
fees, preparation of vouchers for salaries of teachers and employees, and
remittance of collections exceeding P500.00 to the National Treasury. Even
while he had not yet received his appointment papers, he, together with, and
upon the instructions of, Cesar Macasemo (the Principal and Navallo's
predecessor as Collecting and Disbursing Officer of the school), was himself
already doing entries in the cashbook. Navallo and Macasemo thus both
used the vault. Navallo said that he stated the job of a disbursement officer
in June 1977, and began to discharge in full the duties of his new position
(Collection and Disbursement Officer) only in 1978. There was no formal turn
over of accountability from Macasemo to Navallo.
Gainsaying the prosecution's evidence, Navallo continued that the charge
against him was motivated by a personal grudge on the part of Espino. On 25
January 1978, he said, he was summoned to appear at the Numancia
National Vocational School where he saw Espino and Macasemo. The safe
used by him and by Macasemo was already open when he arrived, and the
cash which was taken out from the safe was placed on top of a table. He did
not see the actual counting of the money and no actual audit of his
accountability was made by Espino. Navallo signed the cash count only
because he was pressured by Macasemo who assured him that he
(Macasemo) would settle everything. The collections in 1976, reflected in the
Statement of Accountability, were not his, he declared, but those of
Macasemo who had unliquidated cash advances. prLL

Navallo admitted having received the demand letter but he did not reply
because he was already in Manila looking for another employment. He was
in Manila when the case was filed against him. He did not exert any effort to
have Macasemo appear in the preliminary investigation, relying instead of
Macasemo's assurance that he would settle the matter. He, however, verbally
informed the investigating fiscal that the shortage represented the
unliquidated cash advance of Macasemo.
The Appealed Decision:
On 08 November 1990, after evaluation the evidence, the Sandiganbayan
reached a decision, and it rendered judgment, thus:
"WHEREFORE, the Court finds the accused ERNESTO NAVALLO y
GALON GUILTY beyond reasonable doubt as principal of the crime of
malversation of public funds defined and penalized under Article
217, paragraph 4, of the Revised Penal Code.
"Accordingly and there being no modifying circumstances nor reason
negating the application of the Indeterminate Sentence Law, as
amended, the Court imposes upon the accused the indeterminate
sentence ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor as minimum to SIXTEEN (160 YEARS, FIVE (5) MONTHS and
ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of
perpetual special disqualification, and a fine in the amount of
 SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS AND
SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency.
"The Court further orders the accused to restitute the amount
malversed to the Government.
"SO ORDERED." 2

Accused-petitioner's motion for reconsideration was denied by the

Sandiganbayan in its resolution of 05 February 1991.
Hence, the instant petition.
Four issues are raised in this appeal
1. Whether or not the Sandiganbayan acquired jurisdiction to try and decide
the offense filed against petitioner in spite of the fact that long before the
law creating the Sandiganbayan took effect, an Information had already been
filed with the then Court of First Instance of Surigao del Norte.
2. Whether or not double jeopardy set in when petitioner was arraigned by
the Regional Trial Court on July 18, 1985.
3. Whether or not petitioner was under custodial investigation when he
signed the certification prepared by State Auditing Examiner Leopoldo
Dulguime.
4. Whether or not the guilt of petitioner has been established by the
prosecution beyond reasonable doubt as to warrant his conviction for the
offense imputed against him. Cdpr

We see no merit in the petition.

On 10 December 1978, Presidential Decree No. 1606 took effect providing,
among other things, thusly:
"SECTION 4. Jurisdiction. The Sandiganbayan shall have jurisdiction
over:
"(a) Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, and Republic Act
No. 1379;
"(b) Crimes committed by public officers and employees, including
those employed in government-owned or controlled corporations,
 embraced in Title VII of the Revised Penal Code, whether simple or
complexed with other crimes; and
"(c) Other crimes or offenses committed by public offices or
employees, including those employed in government-owned or
controlled corporations, in relation to their office."
"xxx xxx xxx
"SECTION 8. Transfer of cases. As of the date of the effectivity of
this decree, any case cognizable by the Sandiganbayan within its
exclusive jurisdiction where none of the accused has been arraigned
shall be transferred to the Sandiganbayan."

The law is explicit and clear. A case falling under the jurisdiction of the
Sandiganbayan shall be transferred to it so long as the accused has not as
yet been properly arraigned elsewhere on the date of effectivity of the law,
i.e., on 10 December 1978. The accused is charged with having violated
paragraph 4, Article 217, of the Revised Penal Code
"ARTICLE 217. Malversation of public funds or property. Presumption
of Malversation. Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
"xxx xxx xxx
"4. The penalty of reclusion temporal in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua."

an offense which falls under Title VII of the Revised Penal Code and,
without question, triable by the Sandiganbayan. Navallo's arraignment
before the RTC on 18 July 1985 is several years after Presidential Decree
No. 1606, consigning that jurisdiction to the Sandiganbayan, had become
effective.
Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of
Court, pleads double jeopardy. We cannot agree. Double jeopardy requires
the existence of the following requisites:
(1) The previous complaint or information or other formal
charge is sufficient in form and substance to sustain a
conviction;
(2) The court has jurisdiction to try the case;
(3) The accused has been arraigned and has pleaded to the
charge; and
(4) The accused is convicted or acquitted or the case is
dismissed without his express consent.
When all the above elements are present, a second prosecution for (a) the
same offense, or (b) an attempt to commit the said offense, or (c) a
frustration of the said offense, or (d) any offense which necessarily
includes, or is necessarily included in, the first offense charged, can rightly
be barred.
In the case at bench, the RTC was devoid of jurisdiction when it conducted an
arraignment of the accused which by then had already been conferred on
the Sandiganbayan. Moreover, neither did the case there terminate with
conviction or acquittal nor was it dismissed.
Accused-petitioner claims to have been deprived of his constitutional rights
under Section 12, Article III, of the 1987 Constitution. 3 Well-settled is the rule
that such rights are invocable only when the accused is under "custodial
investigation," or is "in custody investigation," 4 which we have since defined
as any "questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in
any significant way." 5 A person under a normal audit examination is not
under custodial investigation. An audit examiner himself can hardly be
deemed to be the law enforcement officer contemplated in the above rule. In
any case, the allegation of his having been "pressured" to sign the
Examination Report prepared by Dulguime appears to be belied by his own
testimony. To quote:
"Q. How were you pressured?
 "A. Mr. Macasemo told me to sign the report because he will be the
one to settle everything.
"xxx xxx xxx
"Q. Why did you allow yourself to be pressured when you will be the
one ultimately to suffer?
"A. Because he told me that everything will be all right and that he
will be the one to talk with the auditor.
"Q. Did he tell you exactly what you will do with the auditor to be
relieved of responsibility?
"A. No, your honor.
"Q. Why did you not ask him?
"A. I was ashamed to ask him, your Honor, because he was my
superior." 6

Navallo may have been persuaded, but certainly not pressured, to sign the
auditor's report. Furthermore, Navallo again contradicted himself when, in
his very petition to this Court, he stated:
"Bearing in mind the high respect of the accused with his superior
officer and taking favors that his superior officer has extended him in
recommending him the position he held even if he was not an
accountant, he readily agreed to sign the auditor's report even if he
was not given the opportunity to explain the alleged shortage." 7

Finally, accused-petitioner challenges the sufficiency of evidence against him.

Suffice it to say that the law he contravened itself creates a presumption of
evidence. Article 217 of the Revised Penal Code states that "(t)he failure of a
public officer to have dully forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to
personal use." An accountable officer, therefore, may be convicted of
malversation even in the absence of direct proof of misappropriation as long
as there is evidence of shortage in his accounts which he is unable to explain.
8 Not least insignificant is the evaluation of the evidence of the
Sandiganbayan itself which has found thusly:
 "The claim that the amount of the shortage represented the
unliquidated cash advance of Macasemo does not inspire belief. No
details whatsoever were given by the accused on the matter such as,
for instance, when and for what purpose was the alleged cash
advance granted, what step or steps were taken by Navallo or
Macasemo to liquidate it. In fact, Navallo admitted that he did not
even ask Macasemo as to how he (Navallo) could be relieved of his
responsibility for the missing amount when he was promised by
Macasemo that everything would be all right. When Navallo was
already in Manila, he did not also even write Macasemo about the
shortage.

"As to the collections made in 1976 which Navallo denied having

made, the evidence of the prosecution shows that he assumed the
office of Collecting and Disbursing Officer in July 1976 and the
cashbook which was examined during the audit contained entries
from July 1976 to January 1978, which he certified to. Navallo
confirmed that indeed he was appointed Collecting and Disbursing
Officer in 1976.
"Finally, the pretense that the missing amount was the unliquidated
cash advance of Macasemo and that Navallo did not collect tuition
fees in 1976 was advanced for the first time during the trial, that is,
12 long solid years after the audit on January 30, 1978. Nothing was
said about it at the time of the audit and immediately thereafter."

Findings of fact made by a trial court are accorded the highest degree of
respect by an appellate tribunal and, absent a clear disregard of the
evidence before it that can otherwise affect the results of the case, those
findings should not be ignored. We see nothing on record in this case that
can justify a deviation from the rule. Cdpr

WHEREFORE, the petition is DISMISSED and the decision of respondent

Sandiganbayan is AFFIRMED in toto.
SO ORDERED.
||| (Navallo v. Sandiganbayan, G.R. No. 97214, [July 18, 1994], 304 PHIL 343-354)

[G.R. No. L-56291. June 27, 1988.]

 CRISTOPHER GAMBOA, petitioner, vs. HON. ALFREDO CRUZ,
JUDGE of the Court of First Instance of Manila, Br. XXIX,
respondent.

Rene V. Sarmiento for petitioner.

DECISION

PADILLA, J :p

Petition for certiorari and prohibition, with prayer for a temporary restraining
order, to annul and set aside the order dated 23 October 1980 of the Court
of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled
"People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales,
Accused," and to restrain the respondent court from proceeding with the
trial of the aforementioned case.
Petitioner alleges that:
On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for
vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia.
Thereafter, petitioner was brought to Precinct 2, Manila, where he was
booked for vagrancy and then detained therein together with several others.
The following day, 20 July 1979, during the lineup of five (5) detainees,
including petitioner, complainant Erlinda B. Bernal pointed to petitioner and
said, "that one is a companion." After the identification, the other detainees
were brought back to their cell but petitioner was ordered to stay on. While
the complainant was being interrogated by the police investigator, petitioner
was told to sit down in front of her.
On 23 July 1979, an information for robbery was filed against the petitioner.
On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held.
On 2 April 1980, the prosecution formally offered its evidence and then
rested its case.
On 14 July 1980, petitioner, by counsel, instead of presenting his defense,
manifested in open court that he was filing a Motion to Acquit or Demurrer
to Evidence. On 13 August 1980, petitioner filed said Motion predicated on
the ground that the conduct of the line-up, without notice to, and in the
absence of, his counsel violated his constitutional rights to counsel and to
due process.
On 23 October 1980, the respondent court issued the following order
(assailed in the petition at bar) denying the Motion to Acquit:
"For resolution is a motion to acquit the accused based on the
grounds that the constitutional rights of the said accused, to counsel
and to due process, have been violated. After considering the
allegations and arguments in support of the said motion in relation
to the evidence presented, the Court finds the said motion to be
without merit and, therefore, denies the same.
"The hearing of this case for the purpose of presenting the evidence
for the accused is hereby set on November 28, 1980, at 8:30 o'clock
in the morning."

Hence, the instant petition.

On 3 March 1981, the Court issued a temporary restraining order "effective
as of this date and continuing until otherwise ordered by the court". 1
Petitioner contends that the respondent judge acted in excess of jurisdiction
and with grave abuse of discretion, in issuing the assailed order. He insists
that said order, in denying his Motion To Acquit, is null and void for being
violative of his rights to counsel and to due process. 2
We find no merit in the contentions of petitioner.
To begin with, the instant petition is one for certiorari, alleging grave abuse
of discretion, amounting to lack of jurisdiction, committed by the respondent
judge in issuing the questioned order dated 23 October 1980.
It is basic, however, that for certiorari to lie, there must be a capricious,
arbitrary and whimsical exercise of power, the very antithesis of judicial
prerogative in accordance with centuries of both civil law and common law
traditions. 3 To warrant the issuance of the extraordinary writ of certiorari,
the alleged lack of jurisdiction, excess thereof, or abuse of discretion must be
so gross or grave, as when power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility, or the abuse
must be so patent as to amount to an evasion of positive duty, or to a virtual
refusal to perform a duty enjoined by law, or to act at all, in contemplation of
law. 4 This is not the situation in the case at bar. The respondent court
considered petitioner's arguments as well as the prosecution's evidence
against him, and required him to present his evidence.
The rights to counsel and to due process of law are indeed two (2) of the
fundamental rights guaranteed by the Constitution, whether it be the 1973
or 1987 Constitution. In a democratic society, like ours, every person is
entitled to the full enjoyment of the rights guaranteed by the Constitution.
On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973
Constitution, reads:
"No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other
means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible
in evidence."

The same guarantee, although worded in a different manner, is included in

the 1987 Constitution. Section 12 (1, 2 & 3), Article III thereof provides:
"Sec. 12 (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommumicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible in evidence against him."
The right to counsel attaches upon the start of an investigation, i.e. when the
investigating officer starts to ask questions to elicit information and/or
confessions or admissions from the respondent/accused. At such point or
stage, the person being interrogated must be assisted by counsel to avoid
the pernicious practice of extorting false or coerced admissions or
confessions from the lips of the person undergoing interrogation, for the
commission of an offense.
Any person under investigation must, among other things, be assisted by
counsel. The above-cited provisions of the Constitution are clear. They leave
no room for equivocation. Accordingly, in several cases, this Court has
consistently held that no custodial investigation shall be conducted unless it
be in the presence of counsel, engaged by the person arrested, or by any
person in his behalf, or appointed by the court upon petition either of the
detainee himself or by anyone in his behalf, and that, while the right may be
waived, the waiver shall not be valid unless made in writing and in the
presence of counsel. 5
As aptly observed, however, by the Solicitor General, the police line-up (at
least, in this case) was not part of the custodial inquest, hence, petitioner was
not yet entitled, at such stage, to counsel. The Solicitor General states: LLphil

"When petitioner was identified by the complainant at the police line-

up, he had not been held yet to answer for a criminal offense. The
police line-up is not a part of the custodial inquest, hence, he was not
yet entitled to counsel. Thus, it was held that when the process had
not yet shifted from the investigatory to the accusatory as when
police investigation does not elicit a confession the accused may not
yet avail of the services of his lawyer (Escobedo v. Illinois of the
United States Federal Supreme Court, 378 US 478, 1964). Since
petitioner in the course of his identification in the police line-up had
not yet been held to answer for a criminal offense, he was, therefore,
not deprived of his right to be assisted by counsel because the
accusatory process had not yet set in. The police could not have
violated petitioner's right to counsel and due process as the
confrontation between the State and him had not begun. In fact,
when he was identified in the police line-up by complainant he did
not give any statement to the police. He was, therefore, not
interrogated at all as he was not facing a criminal charge. Far from
 what he professes, the police did not, at that stage, exact a
confession to be used against him. For it was not he but the
complainant who was being investigated at that time. He "was
ordered to sit down in front of the complainant while the latter was
being investigated" (par. 3.03, Petition). Petitioner's right to counsel
had not accrued." 6

Even under the constitutional guarantees obtaining in the United States,

petitioner would have no cause for claiming a violation of his rights to
counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the
votes of the Justices therein are summarized as follows:
"After arresting the petitioner and a companion and bringing them to
a police station, police officers learned that certain items found in
their possession had been stolen in a recent robbery. The robbery
victim was brought to the police station and immediately identified
the petitioner and his companion as the robbers. No attorney was
present when the identification was made, and neither the petitioner
nor his companion had asked for legal assistance or had been
advised of any right to the presence of counsel. Several weeks later,
the petitioner and his companion were indicted for the robbery. At
trial in an Illinois state court, the robbery victim testified that he had
seen the petitioner and his companion at the police station, and he
pointed them out in the courtroom and identified them as the
robbers. The petitioner and his companion were convicted, and the
Illinois Appellate Court, First District, affirmed the petitioner's
conviction, holding that the constitutional rule requiring the
exclusion of evidence derived from out of-court identification
procedures conducted in the absence of counsel did not apply to
preindictment identifications (121 III App 2d 323, 257 NEE 2d 589).

"On certiorari, the United States Supreme Court, although not

agreeing on an opinion, affirmed. In an opinion by STEWART, J.,
announcing the judgment of the court and expressing the view of
four members of the court, it was held that the constitutional right to
counsel did not attach until judicial criminal proceedings were
initiated, and that the exclusionary rule relating to out-of-court
identifications in the absence of counsel did not apply to
identification testimony based upon a police station show-up which
 took place before the accused had been indicted or otherwise
formally charged with any criminal offense.
"BURGER, Ch. J., concurring, joined in the plurality opinion and
expressed his agreement that the right to counsel did not attach
until criminal charges were formally made against an accused.
"POWELL, J., concurred in the result on the ground that the
exclusionary rule should not be extended.
"BRENNAN, J., joined by DOUGHLAS and MARSHALL, JJ., dissented on
the grounds that although Supreme Court decisions establishing the
exclusionary rule happened to involve postindictment identifications,
the rationale behind the rule was equally applicable to the present
case.
"WHITE, J., dissented on the grounds that Supreme Court decisions
establishing the exclusionary rule governed the present case." 8

Mr. Justice Steward, expressing his view and that of three other members 9 of
the Court, said:
"In a line of constitutional cases in this Court stemming back to the
Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed
158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a
person's Sixth and Fourteenth Amendment right to counsel attaches
only at or after the time that adversary judicial proceedings have been
initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst,
304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v.
Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v.
Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 92 ALR 2d 733;
White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Massiah
v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States
v. Wade, 388 US 218, 18 L Ed 1149, 87 S Ct 1926; Gilbert v. California,
388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399
US 1, 26 L Ed 2d 387, 90 S Ct. 1999.
This is not to say that a defendant in a criminal case has a
constitutional right to counsel only at the trial itself. The Powell case
makes clear that the right attaches at the time of arraignment and
the Court has recently held that it exists also at the time of a
preliminary hearing. Coleman v. Alabama, supra. But the point is
that, while members of the court have differed as to existence of the
 right to counsel in the contexts of some of the above cases, all of
those cases have involved points of time at or after the initiation of
adversary judicial criminal proceedings whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment." (Emphasis supplied). 10

As may be observed, the 1973 and 1987 Philippine Constitutions go farther

and beyond the guarantee of the right to counsel under the Sixth and
Fourteenth Amendments to the U.S. Constitution. For while, under the latter,
the right to counsel "attaches only at or after the time that adversary judicial
proceedings have been initiated against him (the accused)," under the 1973
and 1987 Philippine Constitutions, the right to counsel attaches at the start of
investigation against a respondent and, therefore, even before adversary
judicial proceedings against the accused have begun. LibLex

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to
extend to those under police investigation the right to counsel, this occasion
may be better than any to remind police investigators that, while the Court
finds no real need to afford a suspect the services of counsel during a police
line-up, the moment there is a move or even an urge of said investigators to
elicit admissions or confessions or even plain information which may appear
innocent or innocuous at the time, from said suspect, he should then and
there be assisted by counsel, unless he waives the right, but the waiver shall
be made in writing and in the presence of counsel.
On the right to due process, the Court finds that petitioner was not, in any
way, deprived of this substantive and constitutional right, as he was duly
represented by a member of the Bar. He was accorded all the opportunities
to be heard and to present evidence to substantiate his defense; only that he
chose not to, and instead opted to file a Motion to Acquit after the
prosecution had rested its case. What due process abhors is the absolute
lack of opportunity to be heard. 11 The case at bar is far from this situation.
In any event, certiorari and prohibition are not the proper remedies against
an order denying a Motion To Acquit. Section 1, Rule 117 of the Rules of
Court provides that, upon arraignment, the defendant shall immediately
either move to quash the complaint or information or plead thereto, or do
both and that, if the defendant moves to quash, without pleading, and the
motion is withdrawn or overruled, he should immediately plead, which
means that trial must proceed. If, after trial on the merits, judgment is
rendered adversely to the movant (in the motion to quash), he can appeal
the judgment and raise the same defenses or objections (earlier raised in his
motion to quash) which would then be subject to review by the appellate
court.
An order denying a Motion to Acquit (like an order denying a motion to
quash) is interlocutory and not a final order. It is, therefore, not appealable.
Neither can it be the subject of a petition for certiorari. Such order of denial
may only be reviewed, in the ordinary course of law, by an appeal from the
judgment, after trial. As stated in Collins vs. Wolfe, 12 and reiterated in Mill vs.
Yatco, 13 the accused, after the denial of his motion to quash, should have
proceeded with the trial of the case in the court below, and if final judgment
is rendered against him, he could then appeal, and, upon such appeal,
present the questions which he sought to be decided by the appellate court
in a petition for certiorari.
In Acharon vs. Purisima, 14 the procedure was well defined, thus:
"Moreover, when the motion to quash filed by Acharon to nullify the
criminal cases filed against him was denied by the Municipal Court of
General Santos his remedy was not to file a petition for certiorari but
to go to trial without prejudice on his part to reiterate the special
defenses he had invoked in his motion and, if, after trial on the
merits, an adverse decision is rendered, to appeal therefrom in the
manner authorized by law. This is the procedure that he should have
followed as authorized by law and precedents. Instead, he took the
usual step of filing a writ of certiorari before the Court of First
Instance which in our opinion is unwarranted it being contrary to the
usual course of law." 15

Conformably with the above rulings, whether or not petitioner was, afforded
his rights to counsel and to due process is a question which he could raise, as
a defense or objection, upon the trial on the merits, and, if that defense or
objection should fail, he could still raise the same on appeal.
On the other hand, if a defendant does not move to quash the complaint or
information before he pleads, he shall be taken to have waived all objections
which are grounds for a motion to quash, except where the complaint or
information does not charge an offense, or the court is without jurisdiction of
the same. 16
Here, petitioner filed a Motion To Acquit only after the prosecution had
presented its evidence and rested its case. Since the exceptions, above-
stated, are not applicable, petitioner is deemed to have waived objections
which are grounds for a motion to quash.
Besides, the grounds relied upon by petitioner in his Motion to Acquit are not
among the grounds provided in Sec. 2, Rule 117 of the Rules of Court for
quashing a complaint or information. Consequently, the lower court did not
err in denying petitioner's Motion to Acquit.
WHEREFORE, the petition is DISMISSED. The temporary restraining order
issued on 3 March 1981 is LIFTED. The instant case is remanded to the
respondent court for further proceedings to afford the petitioner-accused
the opportunity to present evidence on his behalf. This decision is
immediately executory. With costs against the petitioner.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino
and Medialdea, JJ., concur.
Gutierrez, Jr., J., I concur pro hac vice.

Separate Opinions

CRUZ, J., concurring:

I concur because it does not appear from the narration of the facts in this
case that improper suggestions were made by the police to influence the
witnesses in the identification of the accused.
In United States v. Wade, 388 U.S. 218, the U.S. Supreme Court observed
through Justice Brennan: LLpr

"What facts have been disclosed in specific cases about the conduct of
pretrial confrontations for identification illustrate both the potential for
substantial prejudice to the accused at that stage and the need for its
revelation at trial. A commentator provides some striking examples:
'In a Canadian case . . . the defendant had been picked out of a line-up of six
men, of which he was the only Oriental. In other cases, a black-haired
suspect was placed among a group of light-haired persons, tall suspects have
been made to stand with short non-suspects, and, in a case where the
perpetrator of the crime was known to be a youth, a suspect under twenty
was placed in a line-up with five other persons, all of whom were forty or
over.'
"Similarly state reports, in the course of describing prior identifications
admitted as evidence of guilt, reveal numerous instances of suggestive
procedures, for example, that all in the line-up but the suspect were known
to the identifying witness, that the other participants in a lineup were grossly
dissimilar in appearance to the suspect, that only the suspect was required
to wear distinctive clothing which the culprit allegedly wore, that the witness
is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail, that the
suspect is pointed out before or during a lineup, and that the participants in
the lineup are asked to try on an article of clothing which fits only the
suspect."

I reserve my judgment on any subsequent case where the question raised

here is submitted anew and the same or similar circumstances as those
described above are present.

YAP, C.J., dissenting:

I am constrained to dissent from the majority opinion. In my opinion, after

the police line-up with other detainees in which the accused was pointed out
by the complainant as one of the "companions" of those who allegedly
committed the crime of robbery, the investigatory part of the proceedings
started when the accused was singled out and "ordered to sit down in front
of the complainant" while the latter gave her statement which led to the filing
of the information. The majority opinion holds that the police line-up was not
part of the custodial inquest, hence, petitioner (the herein accused) was not
yet entitled to counsel. But this overlooks the fact that the incident objected
to took place after the police line-up, when the accused was made to
confront the complainant, and the latter made her statement which became
the basis of the information filed against the accused. At this point, it can be
said that the custodial investigation had already begun.
The applicable provision of the 1973 Constitution states that "any person
under investigation for the commission of an offense shall have the right to
counsel, and to be informed of such rights." (Sec. 20, Art. IV, Bill of Rights). A
similar provision has been incorporated in the 1987 Constitution. I do not
agree with the view that since the accused was not asked any question, he
was not "under investigation." The investigation commenced the moment he
was taken from the police line-up and made to sit in front of the
complainant, while the latter made her statement to the police.
Neither do I agree with the view of the Solicitor General, which is sustained
by the majority opinion, that the accused at that point was not entitled to be
informed of his right to counsel, because "the police did not, at that stage,
exact a confession to be used against him." The right to counsel must be
afforded to the accused the moment he is under custodial investigation, and
not only when a confession is being exacted from him.
For these reasons, I am of the opinion that the petitioner should have been
informed, at that stage, of his constitutional right to counsel, and accordingly,
I vote to grant the petition.

SARMIENTO, J., dissenting:

Insofar as the majority would deny the accused the right to counsel (at an in-
custody confrontation) in this particular case, I am constrained to dissent.
The accused was arrested, without a warrant, for vagrancy, on July 19, 1979.
It is clear that at that time, no probable cause to indict him for robbery
existed. For this reason, he was "booked" for vagrancy alone and thereafter
detained.
Unexplainably, he was made to take part in a line-up the following day, July
20, 1979, upon the behest, apparently, of the complainant, who unabashedly
pointed to him as a "companion" in a certain robbery case. He was later
made to "sit down in front of' the said complainant while the latter gave her
statement which led to the filing of the information.
It is the view of the majority that "the police line-up (at least, in this case) was
not part of the custodial inquest, hence, petitioner was not yet entitled, at
such stage, to counsel." It is my own view, however, that given the particular
circumstances of this case, he was entitled to counsel pursuant to the
provisions of Section 12, of Article III, of the Bill of Rights.
It is noteworthy that the accused was already in custody at the time. And
although he was detained for some other cause (vagrancy), it left him little or
no choice other than to face his accuser. It cannot be then gainsaid that as
far as he was concerned, the situation had reached what American
jurisprudence refers to as the "critical stage" 1 of the inquiry, in which the
confrontation becomes an accusation rather than a routine procedure
preliminary to a formal prosecution. He was in custody not for the "usual
questioning" but for an existing charge, although the investigation was in
connection with another offense. The confrontation, exacerbated by the
pressure of actual custody, had become adversarial rather than
informational, and the assistance of counsel to the accused, a matter of
Constitutional necessity. That he was being held for vagrancy whereas the
line-up involved a complaint for robbery does not make a difference to him.
He was under detention, a development that made him vulnerable to
pressures, whatever offense was involved. cdrep

While I am not prepared to hold that a police line-up per se amounts to a

critical stage of the investigation, for in most cases, it merely forms part of
the evidence-gathering process, the fact that the accused herein stood
charged for an offense and has been detained therefor should make this
case different. 2
So also is it noteworthy that the accused was made to confront the
complainant in an interrogation following the line-up. It is my belief that,
other than such a line-up, the subsequent confrontation had reinforced his
need for legal assistance. Verily, he was an unwilling audience to his accuser,
if a mute witness to his own prosecution. In People v. Hassan, 3 we struck
down a similar confrontation for repugnancy to the Constitution. This Court
said therein:
 The manner by which Jose Samson, Jr. was made to confront and
identify the accused alone at the funeral parlor, without being placed
in a police line-up, was "pointedly suggestive, generated confidence
where there was none, activated visual imagination, and, all told,
subverted his reliability as eyewitness. This unusual, coarse, and
highly singular method of identification, which revolts against the
accepted principles of scientific crime detection, alienates the esteem
of every just man, and commands neither our respect nor
acceptance."

Moreover, the confrontation arranged by the police investigator between the

self-proclaimed eyewitness and the accused did violence to the right of the
latter to counsel in all stages of the investigation into the commission of a
crime especially at its most crucial stage- the identification of the accused.
As it turned out, the method of identification became just a confrontation. At
that critical and decisive moment, the scales of justice tipped unevenly
against the young, poor, and disadvantaged accused. The police procedure
adopted in this case in which only the accused was presented to witness
Samson, in the funeral parlor, and in the presence of the grieving relatives of
the victim, is as tainted as an uncounselled confession and thus falls within
the same ambit of the constitutionally entrenched protection. For this
infringement alone, the accused-appellant should be acquitted. 4
It is in such cases indeed that the more questions are asked, the more
convinced is the complainant of the accused's guilt, and in extreme cases, the
better "convinced" is the accused himself that he is truly guilty. The presence
of counsel would have obviated the one-sidedness of the investigation.
To be sure, the majority itself would concede that something is amiss in such
a procedure, at least in this case ("this occasion may be better than any to
remind police investigators that, while the Court finds no real need to afford
a suspect the services of counsel during a police line-up, the moment there is
a move or even an urge of said investigators to elicit admissions or
confessions or even plain information which may appear innocent or
innocuous at the time, from said suspect, he should then and there be
assisted by counsel, unless he waives the right, but the waiver shall be made
in writing and in the presence of counsel"). 5 The point, however, is that such
a police procedure is invariably intended to secure admissions from the
accused (assuming that he is identified), unless the authorities are possessed
of other evidence. They would not be so obtuse to do a useless act. cdphil

To my mind, the accused herein was not only denied the right to counsel
which I hold to be available under the circumstances, he was deprived of due
process the day he was arrested. Albeit it does not appear to have been put
in issue in his petition, he was not apprised of his rights when he was
apprehended for vagrancy. The next day, he was placed in a line-up upon a
complaint for robbery. To my mind, he was a ready-made suspect for an
offense in which no probable cause existed to warrant a custodial
interrogation. If this is a customary police procedural, I do not hesitate to
condemn it for Constitutional reasons.
While it is true that he was not denied the right to present his defense, it
does not cure the defect surrounding his arrest, or make admissible
whatever evidence gathered in the course of the confrontation and
investigation. The resulting unfairness has deprived him of the opportunity
to prepare a meaningful defense.
I agree that in terms of the provisions of the Rules of Court, the accused may
not challenge, on certiorari, a denial of a motion to acquit. But it seems to me
that the case, for all its Constitutional implications, should stand on its merits
and not on the errors of the counsel for the accused on his choice of judicial
remedies. Accordingly, I am for denying the Rules of their rigidity and for
deciding on the petition on Constitutional grounds.
I vote to grant the petition.
||| (Gamboa v. Cruz, G.R. No. L-56291, [June 27, 1988], 245 PHIL 598-618)

[G.R. No. 89223. May 27, 1994.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AURELIO

BANDULA y LOPEZ, accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; CUSTODIAL INVESTIGATION;

RIGHTS OF A PERSON SUBJECTED THERETO; RULE. From the records, it can
be gleaned that when accused-appellant Bandula and accused Dionanao
were investigated immediately after their arrest, they had no counsel
present. If at all, counsel came in only a day after the custodial investigation
with respect to accused Dionanao, and two weeks later with respect to
appellant Bandula. And, counsel who supposedly assisted both accused was
Atty. Ruben Zerna, the Municipal Attorney of Tanjay. On top of this, there are
telltale signs that violence was used against the accused. Certainly, these are
blatant violations of the Constitution which mandates in Sec. 12, Art. III, that
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel. (2) No torture, force, violence, threat, intimidation or any other
means vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him. (4) The law shall provide
for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices,
and their families.
2. ID.; ID.; ID.; PROCEDURE THAT ARRESTING OFFICER MUST FOLLOW IN THE
CONDUCT THEREOF. In the twin cases of Morales, Jr. v. Enrile, (121 SCRA
538 [1983]) and Moncupa, Jr. v. Enrile, (121 SCRA 538 [1983]) and the
subsequent case of People v. Galit, (135 SCRA 465 [1985]) all promulgated
even before the effectivity of the 1987 Constitution, we laid down the
procedure for peace officers to follow when making an arrest and conducting
a custodial investigation . . . At the time a person is arrested, it shall be the
duty of the arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement
he might make could be used against him. The person arrested shall have
the right to communicate with his lawyer, a relative, or anyone he chooses by
the most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it
that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested, by
any person on his behalf, or appointed by the court upon petition either of
the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of
counsel. Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
3. ID.; ID.; ID.; RIGHT TO COUNSEL; WHEN AVAILABLE. We further said in
Gamboa v. Judge Cruz that "[t]he right to counsel attaches upon the start of an
investigation, i.e., when the investigating officer starts to ask questions to
elicit information and/or confessions or admissions from
respondent/accused. At such point or stage, the person being interrogated
must be assisted by counsel to avoid the pernicious practice of extorting
false or coerced admissions or confessions from the lips of the person
undergoing interrogation for the commission of the offense." Hence, if there
is no counsel at the start of the custodial investigation, any statement elicited
from the accused is inadmissible in evidence against him. Custodial
investigation is the stage where the police investigation is no longer a general
inquiry into an unsolved crime but has began to focus on a particular suspect
who had been taken into custody by the police who carry out a process of
interrogation that lends itself to illicit incriminating statements. It is when
questions are initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way.
4. ID.; ID.; ID.; ID.; UNCOUNSELLED ADMISSIONS; EFFECT; RULE. Indeed,
the instant case is analogous to the more recent case of People v. De Jesus,
(213 SCRA 345 [1992]) where we said that admissions obtained during
custodial interrogations without the benefit of counsel although later
reduced to writing and signed in the presence of counsel are still flawed
under the Constitution.
5. ID.; ID.; ID.; ID.; INDEPENDENT COUNSEL; DEFINED; APPLIED TO CASE AT
BAR. The Constitution also requires that counsel be independent.
Obviously, he cannot be a special counsel, public or private prosecutor,
counsel of the police, or a municipal attorney whose interest is admittedly
adverse to the accused. Granting that Atty. Zerna assisted accused Dionanao
and Bandula when they executed their respective extrajudicial confessions,
still their confessions are inadmissible in evidence considering that Atty.
Zerna does not qualify as an independent counsel. As a legal officer of the
municipality, he provides legal assistance and support to the mayor and the
municipality in carrying out the delivery of basic services to the people,
including the maintenance of peace and order. It is thus seriously doubted
whether he can effectively undertake the defense of the accused without
running into conflict of interests. He is no better than a fiscal or prosecutor
who cannot represent the accused during custodial investigation.
6. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; RULE WHEN
THERE IS DOUBT TO THE VOLUNTARINESS THEREOF; CASE AT BAR. What is
most upsetting however is the allegation of the four (4) accused that they
were mauled into owning the crime. Based on the records, we are strongly
drawn to the belief that violence indeed attended the extraction of
statements from the accused. For, why did the investigators not inform the
accused of their right to remain silent and to have competent and
independent counsel, preferably of their own choice, even before attempting
to elicit statements that would incriminate them? Why did the investigators
not advise the accused that if they could not afford the services of counsel
they could be provided with counsel free of charge before conducting any
investigation? Why did the investigators continuously disregard the repeated
requests of the accused for medical assistance? How did accused Sedigo get
his "black eye" which even Pat. Baldejera admitted? How and why did
accused-appellant Bandula suffer a fractured rib? This Court is greatly
disturbed with the way the accused were treated or maltreated. In fine, we
cannot accept the extrajudicial confessions of the accused and use the same
against them or any of them. Where there is doubt as to their voluntariness,
the same must be rejected in toto.
7. ID.; ID.; BURDEN OF PROOF IN CRIMINAL CASES; RULE. The prosecution
is left with nothing but the alleged positive identification of appellant
Bandula by witness Salva. But this by itself does not measure up to the
required standard of moral certainty. We cannot give credence to the lone
identification by witness Salva of all four (4) accused who were supposedly
bold enough to bare their faces. For, Maria Paz Garay, widow of the victim,
recounted that except for Pastrano and Salva whose hands were tied behind
their backs, she could not recognize any of the men as all their faces were
fully covered, although according to Salve only two (2) were hooded. She
could only see their eyes. Thus, even Pastrano who witnessed the crime
together with Salva was not able to recognize any of the armed men as they
were hooded. In fact, even if there was light, he said he would not be able to
recognize the malefactors. Contraposed with the testimonies of Garay and
Pastrano, the alleged positive identification by Salva crumbles. With the
failure of the prosecution to prove the guilt of accused-appellant Bandula
beyond reasonable doubt, acquittal should follow as a matter of course. We
have oftentimes said that while the alibi of the accused is easily fabricated,
this claim assumes importance when faced with the inconsistencies and the
rather shaky nature of the prosecution evidence. The prosecution must rely
not on the weakness of the defense evidence but rather on its own proof
which must be strong enough to convince this Court that the prisoner in the
dock deserves to be punished. In this, the state has utterly failed.

DECISION

BELLOSILLO, J :p

After he and his wife were individually hog-tied and their house ransacked,
JUANITO GARAY, a lawyer, was found dead with three (3) gunshot wounds.
For his death and the loss of their things on the occasion thereof, AURELIO
BANDULA, PANTALEON SEDIGO, TEOFILO DIONANAO and VICTORIANO EJAN
were haled to court for robbery with homicide.
On 5 May 1989, after hearing twelve (12) prosecution and nine (9) defense
witnesses, the trial court rendered judgment finding accused Aurelio Bandula
guilty of the crime charged. However, his three (3) co-accused were acquitted
"for insufficiency of evidence." 1
As found by the court a quo, 2 on 27 January 1986, at around ten o'clock in the
evening, six (6) armed men barged into the compound of Polo Coconut
Plantation in Tanjay, Negros Oriental. The armed men were identified by
Security Guard Antonio Salva of the plantation as Aurelio Bandula, Teofilo
Dionanao, Victoriano Ejan and Pantaleon Sedigo while the two others who
wore masks were simply referred to as "Boy Tall" and "Boy Short." At
gunpoint, the two (2) masked men held Salva who was manning his post,
disarmed him of his shotgun and tied his hands behind his back. They then
went up the house of Leoncio Pastrano, Chief of Security and General
Foreman of the plantation, hog-tied him, and divested him of his driver's
license, goggles, wristwatch and .38 cal. snubnose revolver. From there, the
six (6) armed men with Salva and Pastrano in tow proceeded to the house of
Atty. Juanito Garay, Manager of the Polo Coconut Plantation. Accused
Dionanao, Ejan and Sedigo stayed downstairs while accused Bandula and the
two masked men with Salva and Pastrano went up the house of Atty. Garay.
After forcing their way into the house, the masked men and Bandula
ransacked the place and took with them money and other valuables.
Thereafter, the hooded men who were bringing with them Atty. Garay locked
Pastrano inside his house together with Salva. A few minutes later, Pastrano
and Salva heard gunshots coming from the direction of the gate of the
compound. After succeeding in untying themselves, Pastrano and Salva went
to report the matter to the police. On their way, they found outside the gate
the lifeless body of Atty. Garay.LLphil

In arriving at its conclusions, the trial court considered the alleged confession
of accused Bandula that after the incident he gave his .38 cal. revolver for
safekeeping to Jovito Marimat, Jr., from whom three handguns were
recovered by the police, i.e., a .38 cal. revolver with four (4) live ammunitions
and one (1) empty shell, a .22 cal. "paltik" revolver, and a revolver with M16
bullets. It likewise took into account the supposed admission of accused
Victoriano Ejan that he kept a 12-gauge Winchester shotgun, a tape recorder,
a bayonet and a pair of binoculars in the house of his relative Emilio Rendora
who was found to have the goods in his possession. The court also noted
that a sum of money suspected to be part of the loot was recovered from
accused Pantaleon Sedigo.
Admitted also in evidence were the alleged extrajudicial confessions of
accused Bandula and Dionanao that they were merely forced to participate
in the commission of the crime by "Boy Tall" and "Boy Short." These
extrajudicial confessions made by accused Teofilo Dionanao and Aurelio
Bandula extracted during custodial investigation," the trial court ruled, "have
all the qualities and have complied with all the requirements of an admissible
confession, it appearing from the confession itself that accused were
informed of their rights under the law regarding custodial investigation and
were duly represented by counsel (Atty. Ruben Zerna)." 3
Thus the trial court disregarded the following defenses of the four (4)
accused: LLpr

(a) Teofilo Dionanao that he was arrested without a warrant and brought
to the Tanjay Police Station on 28 January 1986 for no apparent reason; that
there he was made to sit on a bench for about an hour when Cpl. Kagawasan
Borromeo, Pat. Tomas Borromeo and Pat. El Moso arrived and took turns in
mauling him until he spat blood, after which, he was locked up in the
municipal jail; that his repeated requests to see a doctor were ignored; that
the following morning, he was taken out of his cell and again mauled, after
which, he was forced to sign a piece of paper without a counsel and the
contents of which he did not know; that, prior to his detention, he did not
know his three (3) co-accused as he met them for the first time only when
they were detained together in the Municipal Jail of Tanjay. 4
(b) Aurelio Bandula that in the evening of 27 January 1986 he was in the
house of Jovito Marimat, Sr., a quack doctor; that he was bedridden as he
was undergoing treatment for an inflamed stomach which, at that time, was
fully covered with herbs; that, the following morning, at around six o'clock, he
was awakened and dragged by Cpl. Borromeo and Pat. Moso from his
sickbed into a wating motorcycle and brought to the Municipal Hall where he
was interrogated by Pat. Melvin Baldejera; that, later that afternoon, he was
brought to a room where four (4) persons, including Antonio Salva, took
turns in beating him up until he became unconscious; that evening, he was
made to sign a blank paper purportedly for his release; that he was then put
behind bars; that because of the mauling, he felt extreme pain on his left rib;
that he saw accused Dionanao for the first time only on 28 January 1986 in
the Municipal Hall, and his two (2) other co-accused Sedigo and Ejan only the
following day when they were locked up together with him in his cell; that his
relatives were not allowed to see him; and, that he did not know nor ever
met Atty. Ruben Zerna. 5
(c) Victoriano Ejan that he first met his three (3) co-accused only on 29
January 1986 when he was confined in the Municipal Hall; that after taking
supper on 27 January 1986, he slept with his wife and four (4) children; that
he was not aware of the incident that transpired that night until he was
arrested at gunpoint by Pat. Mose, Pat. Gaste and Pat. Esparicia at around
five o'clock the following afternoon; that he was brought to the Municipal
Hall and there mauled until he lost consciousness; that his relatives were
barred from seeing him; that during his four-month detention in Tanjay, he
was never investigated; that he has no relative by the name of Emilio
Rendora. 6
(d) Pantaleon Sedigo that on 29 January 1986, at around six-thirty in the
morning, Pat. Esparicia and Cpl. Borromeo, with their guns drawn, just
barged into his house, searched his belongings and arrested him without a
warrant; that when he refused to go with them, he was hit on the chest and
eye; that he had never met any of his co-accused prior to his detention,
neither did he know the deceased Atty. Garay; and, that he did not know
anything about the charges against him. 7
On 6 June 1986, the four (4) accused were transferred from the
Municipal Jail of Tanjay to the Negros Oriental Provincial Rehabilitation
Center in Dumaguete City. It was there where accused Bandula asked to
see a doctor; that, as a result of his request, he was brought to the
provincial hospital where he was examined 8 and diagnosed to have an
"[o]ld healed fracture with callous formation at the 6th and 7th rib along
the mid-auxiliary line, left;" 9 that when prosecution witness Pat. Baldejera
was asked on 15 September 1987 in open court if he saw any contusions
or bruises on any of the four (4) accused after their arrest, he admitted
that he noticed accused Sedigo with a "black eye." 10
Although the respective alibis of all four (4) accused were disregarded
considering their positive identification by Salva as the ones who raided Polo
Coconut Plantation, the trial court nevertheless acquitted Dionanao, Ejan and
Sedigo on the ground that while "these three accused were present at the
scene of the crime . . . from the inception of the crime to its final termination,
they were merely bystanders and did not participate in one way or another
in the commission thereof . . . The mere knowledge, acquiescence or
approval of the act without cooperation or agreement to cooperate is not
enough to constitute one a party to a conspiracy." 11 Hence, the instant
appeal by the lone convict.
Appellant Bandula argues that the extrajudicial confessions he and accused
Dionanao executed suffer from constitutional infirmities, hence, inadmissible
in evidence considering that they were extracted under duress and
intimidation, and were merely countersigned later by the municipal attorney
who, by the nature of his position, was not entirely an independent counsel
nor counsel of their choice. Consequently, without the extrajudicial
confessions, the prosecution is left without sufficient evidence to convict him
of the crime charged. Cdpr

The prosecution witnesses themselves disclosed that on 28 January 1986

accused Dionanao was "picked-up for investigation" and interrogated by Cpl.
Ephraim Valles inside the Police Station in Tanjay where he implicated
accused Sedigo. 12 The following day, on 29 January 1986, he was brought to
the Office of the Municipal Attorney of Tanjay, Atty. Ruben Zerna, where he
supposedly executed his extrajudicial confession in the presence of the
latter. 13 On 4 February 1986, upon the suggestion of another investigator,
Cpl. Valles took the Supplementary Sworn Statement of Dionanao, again in
the presence of Atty. Zerna. 14 In his Sworn Statement, Dionanao supposedly
admitted that he was with Bandula when the latter, together with "Boy Short"
and "Boy Tall," shot Atty. Garay. He added that he was going to be killed if he
did not join the group. He also said that Sedigo and Ejan were with them that
evening. 15 Then, in his Supplementary Sworn Statement, he implicated three
(3) more persons but they were not thereafter included in the Information. 16
The prosecution likewise asseverated that accused Bandula was arrested on
28 January 1986, at around six o'clock in the morning, brought to the Tanjay
Police Station and there interrogated. 17 He was investigated by Cpl.
Borromeo, Cpl. Esparicia, Cpl. Ebarso, Pat. Moso and Pat. Baldejera. 18 In that
investigation, Bandula allegedly admitted that he together with two (2) others
shot Atty. Garay with a .38 cal. revolver. 19 At that time, there was no counsel
present "because that (investigation) was not yet in writing." 20 Two weeks
after his arrest, Bandula allegedly gave a sworn statement in the presence of
Atty. Zerna admitting his participation in the killing of Atty. Garay. In that
statement, Bandula narrated that after "Boy Short" and "Boy Tall" shot Atty.
Garay, he (Bandula) was ordered likewise to shoot the latter which he did. 21
From the records, it can be gleaned that when accused-appellant Bandula
and accused Dionanao were investigated immediately after their arrest, they
had no counsel present. If at all, counsel came in only a day after the
custodial investigation with respect to accused Dionanao, and two weeks
later with respect to appellant Bandula. And, counsel who supposedly
assisted both accused was Atty. Ruben Zerna, the Municipal Attorney of
Tanjay. On top of this, there are telltale signs that violence was used against
the accused. Certainly, these are blatant violations of the Constitution which
mandates in Sec. 12, Art. III, that
(1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of
detention are prohibited. prcd

(3) Any confession or admission obtained in violation of this or

Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of
this section as well as compensation to and rehabilitation of victims
of torture or similar practices, and their families.

In the twin cases of Morales, Jr., v. Enrile, 22 and Moncupa, Jr. v. Enrile, 23 and
the subsequent case of People v. Galit, 24 all promulgated even before the
effectivity of the 1987 Constitution, we laid down the procedure for peace
officers to follow when making an arrest and conducting a custodial
investigation
. . . At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person
arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means by
 telephone if possible or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it
be in the presence of counsel engaged by the person arrested, by
any person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. The right
to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel. Any statement obtained in
violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence.
LLphil

We further said in Gamboa v. Judge Cruz 25 that "[t]he right to counsel

attaches upon the start of an investigation, i.e., when the investigating officer
starts to ask questions to elicit information and/or confessions or admissions
from respondent/accused. At such point or stage, the person being
interrogated must be assisted by counsel to avoid the pernicious practice of
extorting false or coerced admissions or confessions from the lips of the
person undergoing interrogation for the commission of the offense." Hence,
if there is no counsel at the start of the custodial investigation, any statement
elicited from the accused is inadmissible in evidence against him. Custodial
investigation is the stage where the police investigation is no longer a general
inquiry into an unsolved crime but has began to focus on a particular suspect
who had been taken into custody by the police who carry out a process of
interrogation that lends itself to elicit incriminating statements. It is when
questions are initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. 26
Indeed, the instant case is analogous to the more recent case of People v. De
Jesus 27 where we said that admissions obtained during custodial
interrogations without the benefit of counsel although later reduced to
writing and signed in the presence of counsel are still flawed under the
Constitution.
The Constitution also requires that counsel be independent. Obviously, he
cannot be a special counsel, public or private prosecutor, counsel of the
police, or a municipal attorney whose interest is admittedly adverse to the
accused. Granting that Atty. Zerna assisted accused Dionanao and Bandula
when they executed their respective extrajudicial confessions, still their
confessions are inadmissible in evidence considering that Atty. Zerna does
not qualify as an independent counsel. As a legal officer of the municipality,
he provides legal assistance and support to the mayor and the municipality
in carrying out the delivery of basic services to the people, including the
maintenance of peace and order. It is thus seriously doubted whether he can
effectively undertake the defense of the accused without running into
conflict of interests. He is no better than a fiscal or prosecutor who cannot
represent the accused during custodial investigations. 28
What is most upsetting however is the allegation of the four (4) accused that
they were mauled into owning the crime. Based on the records, we are
strongly drawn to the belief that violence indeed attended the extraction of
statements from the accused.
For, why did the investigators not inform the accused of their right to remain
silent and to have competent and independent counsel, preferably of their
own choice, even before attempting to elicit statements that would
incriminate them? Why did the investigators not advise the accused that if
they could not afford the services of counsel they could be provided with
counsel free of charge before conducting any investigation? Why did the
investigators continuously disregard the repeated requests of the accused
for medical assistance? How did accused Sedigo get his "black eye" which
even Pat. Baldajera admitted? How and why did accused-appellant Bandula
suffer a fractured rib?cdphil

We cannot close our eyes to these unanswered questions. This Court is

greatly disturbed with the way the accused were treated or maltreated. In
fine, we cannot accept the extrajudicial confessions of the accused and use
the same against them or any of them. Where there is doubt as to their
voluntariness, the same must be rejected in toto. 29
Consequently, the prosecution is left with nothing but the alleged positive
identification of appellant Bandula by witness Salva. But this by itself does
not measure up to the required standard of moral certainty.
We cannot give credence to the lone identification by witness Salva of all four
(4) accused who were supposedly bold enough to bare their faces. For, Maria
Paz Garay, widow of the victim, recounted that except for Pastrano and Salva
whose hands were tied behind their backs, she could not recognize any of
the men as all their faces were fully covered, although according to Salva only
two (2) were hooded. She could only see their eyes. 30 Thus, even Pastrano
who witnessed the crime together with Salva was not able to recognize any
of the armed men as they were hooded. In fact, even if there was light, he
said he would not be able to recognize the malefactors. 31 Contraposed with
the testimonies of Garay and Pastrano, the alleged positive identification by
Salva crumbles.
With the failure of the prosecution to prove the guilt of accused-appellant
Bandula beyond reasonable doubt, acquittal should follow as a matter of
course. We have oftentimes said that while the alibi of the accused is easily
fabricated, this claim assume importance when faced with the
inconsistencies and the rather shaky nature of the prosecution evidence. 32
The prosecution must rely not on the weakness of the defense evidence but
rather on its own proof which must be strong enough to convince this Court
that the prisoner in the dock deserves to be punished. In this, the state has
utterly failed. LLphil

Indeed, it is unfortunate that the investigators who are sworn to do justice to

all appear to have toyed with the fundamental rights of the accused. Men in
uniform do not have blanket authority to arrest anybody they take fancy on,
rough him up and put words into his mouth. There is a living Constitution
which safeguards the rights of an accused, 33 a penal law which punishes
maltreatment of prisoners 34 and a statute which penalizes the failure to
inform and accord the accused his constitutional rights. 35
WHEREFORE, on reasonable doubt, the conviction of accused-appellant
AURELIO BANDULA Y LOPEZ by the court a quo is REVERSED and SET ASIDE
and a new one entered ACQUITTING him of the crime charged.
SO ORDERED.
||| (People v. Bandula y Lopez, G.R. No. 89223, [May 27, 1994], 302 PHIL 599-613)

[G.R. No. 69866. April 15, 1988.]

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO,

NOEL ETABAG, DANILO DE LA FUENTE, BELEN DIAZ-FLORES,
MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ,
 ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH
PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA,
MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO,
ARTURO TABARA, EDWIN TULALIAN and REBECCA
TULALIAN, petitioners, vs. MAJ. GEN. FABIAN VER, COL. FIDEL
SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B.
LANTORIA, COL. GALILEO KINTANAR, LT. COL. PANFILO M.
LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO
PIZARRO, 1LT. PEDRO TANGO, 1LT. ROMEO RICARDO, 1LT.
RAUL BACALSO, MSGT. BIENVENIDO BALABA, and REGIONAL
TRIAL COURT, National Capital Judicial Region, Branch XCV
(95), Quezon City, respondents.

SYLLABUS

1. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF

CONSTITUTIONAL RIGHTS; MEMBERS OF THE ARMED FORCES LIABLE.
Article 32 of the Civil Code which renders any public officer or employee or
any private individual liable in damages for violating the Constitutional rights
and liberties of another, as enumerated therein, does not exempt the
respondents from responsibility. Only judges are excluded from liability
under the said article, provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.
2. ID.; ID.; ID.; NOT AFFECTED BY SUSPENSION OF THE PRIVILEGE OF WRIT OF
HABEAS CORPUS. The suspension of the privilege of the writ of habeas
corpus does not destroy petitioners' right and cause of action for damages
for illegal arrest and detention and other violations of their constitutional
rights.
3. CONSTITUTIONAL LAW; HABEAS CORPUS; SUSPENSION OF PRIVILEGE OF
THE WRIT DOES NOT VALIDATE ILLEGAL ARREST OR DETENTION. The
suspension does not render valid an otherwise illegal arrest or detention.
What is suspended is merely the right of the individual to seek release from
detention through the writ of habeas corpus as a speedy means of obtaining
his liberty.
4. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF
CONSTITUTIONAL RIGHTS; DOCTRINE OF RESPONDEAT SUPERIOR NOT
APPLICABLE TO SUPERIOR OFFICERS OF THE ARMED FORCES AND THEIR
SUBORDINATES. The doctrine of respondent superior is inapplicable to the
case. We agree. The doctrine of respondent superior has been generally
limited in its application to principal and agent or to master and servant (i.e.
employer and employee) relationship. No such relationship exists between
superior officers of the military and their subordinates.
5. ID.; ID.; ID.; PERSONS RESPONSIBLE. Article 32 speaks of an officer or
employee or person "directly" or "indirectly" responsible for the violation of
the constitutional rights and liberties of another. Thus, it is not the actor
alone (i.e. the one directly responsible) who must answer for damages under
Article 32; the person indirectly responsible has also to answer for the
damages or injury caused to the aggrieved party.
6. ID.; ID.; ID.; ID. By this provision, the principle of accountability of public
officials under the Constitution acquires added meaning and assumes a
larger dimension. No longer may a superior official relax his vigilance or
abdicate his duty to supervise his subordinates, secure in the thought that he
does not have to answer for the transgressions committed by the latter
against the constitutionally protected rights and liberties of the citizen. Part
of the factors that propelled people power in February 1986 was the widely
held perception that the government was callous or indifferent to, if not
actually responsible for, the rampant violations of human rights. While it
would certainly be too naive to expect that violators of human rights would
easily be deterred by the prospect of facing damage suits, it should
nonetheless be made clear in no uncertain terms that Article 32 of the Civil
Code makes the persons who are directly, as well as indirectly, responsible
for the transgression joint tortfeasors.
7. REMEDIAL LAW' MOTION TO DISMISS; FAILURE TO STATE A CAUSE OF
ACTION, A GROUND; DETERMINED BY THE FACTS ALLEGED IN THE
COMPLAINT. A motion to dismiss on the ground that the complaint states
no cause of action must be based on what appears on the face of the
complaint. To determine the sufficiency of the cause of action, only the facts
alleged in the complaint, and no others, should be considered. For this
purpose, the motion to dismiss must hypothetically admit the truth of the
facts alleged in the complaint.
8. LEGAL ETHICS; ATTORNEYS; AUTHORITY TO APPEAR FOR A PARTY,
ASSUMED. The authority of an attorney to appear for and in behalf of a
party can be assumed, unless questioned or challenged by the adverse party
or the party concerned, which was never done in this case.
9. REMEDIAL LAW; COMPLAINT; DISMISSAL OF COMPLAINT WITH RESPECT
TO PARTIES WHOSE LAWYERS DID NOT SIGN THE MOTION FOR
RECONSIDERATION CONSTITUTES GRAVE ABUSE OF DISCRETION. In filing
the motion to set aside the resolution of November 8, 1983, the signing
attorneys did so on behalf of all the plaintiffs. They needed no specific
authority to do that. Thus, it was grave abuse on the part of respondent
judge to take it upon himself to rule that the motion to set aside the order of
November 8, 1953 dismissing the complaint was filed only by some of the
plaintiffs, when by its very language it was clearly intended to be filed by and
for the benefit of all of them. It is obvious that the respondent judge took
umbrage under a contrived technicality to declare that the dismissal of the
complaint had already become final with respect to some of the plaintiffs
whose lawyers did not sign the motion for reconsideration. Such action
tainted with legal infirmity cannot be sanctioned.
TEEHANKEE, C.J., concurring:
1. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF
CONSTITUTIONAL RIGHTS; PERSONS COVERED. All persons, be they public
officers or employees, or members of the military or police force or private
individuals who directly or indirectly obstruct, defeat, violate or in any
manner impede or impair the constitutional rights and civil liberties of
another person, stand liable and may be sued in court for damages as
provided in Art. 32 of the Civil Code.
2. ID.; ID.; ID.; PRINCIPLE OF RESPONDEAT SUPERIOR; NOT APPLICABLE TO
OFFICERS OF THE ARMED FORCES AND THEIR SUBORDINATES. The case at
bar rejects the automatic application of the principle of respondent superior
or command responsibility that would hold a superior officer jointly and
severally accountable for damages, including moral and exemplary, with his
subordinates who committed such transgressions.
3. ID.; ID.; ID.; SUPERIOR OFFICER RESPONSIBLE FOR GROSS NEGLIGENCE IN
ABDICATION OF PROPER SUPERVISION OF SUBORDINATES. The judgment
gives the caveat that a superior officer must not abdicate is duty to properly
supervise his subordinates for he runs the risk of being held responsible for
gross negligence and of being held under the cited provision of the Civil Code
as indirectly and solidarily accountable with the tortfeasor.
4. ID.; ID.; ID.; ID.; RATIONALE. The rationale for this rule of law was best
expressed by Brandeis in this wise: "In a government of laws, existence of the
government will be imperilled if it fails to observe the law scrupulously. Our
government is the potent omnipresent teacher. For good or ill, it teaches the
whole people by example. Crime is contagious. If the government becomes
the law breaker, it breeds contempt for the law, it invites every man to
become a law unto himself, it invites anarchy. To declare that in the
administration of criminal law the end justifies the means . . . . would bring
terrible retribution."

DECISION

YAP, J :
p

This petition for certiorari presents vital issues not heretofore passed upon
by this Court. It poses the question whether the suspension of the privilege
of the writ of habeas corpus bars a civil action for damages for illegal
searches conducted by military personnel and other violations of rights and
liberties guaranteed under the Constitution. If such action for damages may
be maintained, who can be held liable for such violations: only the military
personnel directly involved and/or their superiors as well.
This case stems from alleged illegal searches and seizures and other
violations of the rights and liberties of plaintiffs by various intelligence units
of the Armed Forces of the Philippines, known as Task Force Makabansa
(TFM), ordered by General Fabian Ver "to conduct pre-emptive strikes against
known communist-terrorist (CT) underground houses in view of increasing
reports about CT plans to sow disturbances in Metro Manila." Plaintiffs
allege, among others, that complying with said order, elements of the TFM
raided several places, employing in most cases defectively issued judicial
search warrants; that during these raids, certain members of the raiding
party confiscated a number of purely personal items belonging to plaintiffs;
that plaintiffs were arrested without proper warrants issued by the courts;
that for some period after their arrest, they were denied visits of relatives
and lawyers; that plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated them employed
threats, tortures and other forms of violence on them in order to obtain
incriminatory information or confessions and in order to punish them; that
all violations of plaintiffs constitutional rights were part of a concerted and
deliberate plan to forcibly extract information and incriminatory statements
from plaintiffs and to terrorize, harass and punish them, said plans being
previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to P39,030.00;
moral damages in the amount of at least P150,000.00 each or a total of
P3,000,000.00; exemplary damages in the amount of at least P150,000.00
each or a total of P3,000,000.00; and attorney's fees amounting to not less
than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then

Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a
judicial inquiry into the circumstances of their detention in the guise of a
damage suit because, as to them, the privilege of the writ of habeas corpus is
suspended; (2) assuming that the courts can entertain the present action,
defendants are immune from liability for acts done in the performance of
their official duties; and (3) the complaint states no cause of action against
the defendants. Opposition to said motion to dismiss was filed by plaintiffs
Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo
Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez,
Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo
Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz Flores, Rogelio Aberca,
Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7,
1983, a Consolidated Reply was filed by defendants' counsel. cdrep
Then, on November 8, 1983, the Regional Trial Court, National Capital Region,
Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting
the motion to dismiss. It sustained, lock, stock and barrel, the defendants'
contention (1) the plaintiffs may not cause a judicial inquiry into the
circumstances of their detention in the guise of a damage suit because, as to
them, the privilege of the writ of habeas corpus is suspended; (2) that
assuming that the court can entertain the present action, defendants are
immune from liability for acts done in the performance of their official
duties; and (3) that the complaint states no cause of action against
defendants, since there is no allegation that the defendants named in the
complaint confiscated plaintiffs' purely personal properties in violation of
their constitutional rights, and with the possible exception of Major Rodolfo
Aguinaldo and Sergeant Bienvenido Balabo, committed acts of torture and
maltreatment, or that the defendants had the duty to exercise direct
supervision and control of their subordinates or that they had vicarious
liability as employers under Article 2180 of the Civil Code. The lower court
stated, "After a careful study of defendants' arguments, the court finds the
same to be meritorious and must, therefore, be granted. On the other hand,
plaintiffs' arguments in their opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental
motion for reconsideration was filed by the plaintiffs on November 18, 1983,
and November 24, 1983, respectively. On December 9, 1983, the defendants
filed a comment on the aforesaid motion of plaintiffs, furnishing a copy
thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio
L. Rosales, Pedro B. Ella, Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo,
Rene Saguisag, Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting
himself from further proceeding in the case and leaving the resolution of the
motion to set aside the order of dismissal to Judge Lising, "to preclude any
suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending
motion with the cold neutrality of an impartial judge and to put an end to
plaintiffs' assertion that the undersigned has no authority or jurisdiction to
resolve said pending motion." This order prompted plaintiffs to file an
amplificatory motion for reconsideration signed in the name of the Free
Legal Assistance Group (FLAG] of Mabini Legal Aid Committee, by Attys. Joker
P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,
1984, the defendants filed a comment on said amplificatory motion for
reconsideration.
In an order dated May 11, 1984, the trial court, Judge Esteban Lising,
Presiding, without acting on the motion to set aside order of November 8,
1983, issued an order, as follows:
"It appearing from the records that, indeed, the following plaintiffs,
Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by
counsel, Atty. Jose W. Diokno, Alan Jasminez, represented by counsel,
Atty. Augusto Sanchez, Spouses Alex Marcelino and Elizabeth
Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran,
Alfredo Mansos, represented by counsel, Atty. Rene Sarmiento, and
Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed
to file a motion to reconsider the Order of November 8, 1983,
dismissing the complaint, nor interposed an appeal therefrom within
the reglementary period, as prayed for by the defendants, said Order
is now final against said plaintiffs."

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for
reconsideration on May 28, 1984, alleging that it was not true that plaintiffs
Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex
Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin
failed to file a motion to reconsider the order of November 8, 1983
dismissing the complaint, within the reglementary period. Plaintiffs claimed
that the motion to set aside the order of November 8, 1983 and the
amplificatory motion for reconsideration was filed for all the plaintiffs,
although signed by only some of the lawyers. llcd

In its resolution of September 21, 1984, the respondent court dealt with both
motions (1) to reconsider its order of May 11, 1984 declaring that with
respect to certain plaintiffs, the resolution of November 8, 1983 had already
become final, and (2) to set aside its resolution of November 8, 1983 granting
the defendants' motion to dismiss. In the dispositive portion of the order of
September 21, 1984, the respondent court resolved:
(1) That the motion to set aside the order of finality, dated May 11,
1984, of the Resolution of dismissal of the complaint of plaintiffs
 Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex
Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and
Rolando Salutin is denied for lack of merit;
(2) For lack of cause of action as against the following defendants, to
wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Kintanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of dismissal of
the present action or complaint, dated November 8, 1983, is also
denied; but in so far as it affects and refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba,
the motion to reconsider and set aside the Resolution of dismissal
dated November 3, 1983 is granted and the Resolution of dismissal
is, in this respect, reconsidered and modified."

Hence, petitioners filed the instant petition for certiorari on March 15, 1985
seeking to annul and set aside the respondent court's resolution of
November 8, 1983, its order of May 11, 1984, and its resolution dated
September 21, 1984. Respondents were required to comment on the
petition, which it did on November 9, 1985. A reply was filed by petitioners
on August 26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 of the Civil Code which
provides:
ARTICLE 32. Any public officer or employee, or any private individual
who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and liberties
of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical
publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of
law;
(7) The right to a just compensation when private property is taken
for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to
be informed of the nature and cause of the accusation against him,
to have a speedy and public trial, to meet the witnesses face to face,
 and to have compulsory process to secure the attendance of witness
in his behalf;
(17) Freedom from being compelled to be a witness against one's
self, or from being forced to confess guilt, or from being induced by a
promise of immunity or reward to make such confession, except
when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute
which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts. LLjur

In any of the cases referred to in this article, whether or not the

defendant's act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter
be instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages
may also be adjudicated.
The responsibility herein set forth is not demandable from a judge
unless his act or omission constitutes a violation of the Penal Code or
other penal statute.

It is obvious that the purpose of the above codal provision is to provide a

sanction to the deeply cherished rights and freedoms enshrined in the
Constitution. Its message is clear: no man may seek to violate those sacred
rights with impunity. In times of great upheaval or of social and political
stress, when the temptation is strongest to yield borrowing the words of
Chief Justice Claudio Teehankee to the law of force rather than the force of
law, it is necessary to remind ourselves that certain basic rights and liberties
are immutable and cannot be sacrificed to the transient needs or imperious
demands of the ruling power. The rule of law must prevail, or else liberty will
perish. Our commitment to democratic principles and to the rule of law
compels us to reject the view which reduces law to nothing but the
expression of the will of the predominant power in the community.
"Democracy cannot be a reign of progress, of liberty, of justice, unless the
law is respected by him who makes it and by him for whom it is made. Now
this respect implies a maximum of faith, a minimum of idealism. On going to
the bottom of the matter, we discover that life demands of us a certain
residuum of sentiment which is not derived from reason, but which reason
nevertheless controls." 2
Seeking to justify the dismissal of plaintiffs' complaint, the respondents
postulate the view that as public officers they are covered by the mantle of
state immunity from suit for acts done in the performance of official duties
or functions. In support of said contention, respondents maintain that
"Respondents are members of the Armed Forces of the Philippines.
Their primary duty is to safeguard public safety and order. The
Constitution no less provides that the President may call them "to
prevent or supress lawless violence, invasion, insurrection or
rebellion, or imminent danger thereof." (Constitution, Article VII,
Section 9).
On January 17, 1981, the President issued Proclamation No. 2045
lifting martial law but providing for the continued suspension of the
privilege of the writ of habeas corpus in view of the remaining
dangers to the security of the nation. The proclamation also provided
"that the call to the Armed Forces of the Philippines to prevent or
suppress lawless violence, insurrection, rebellion and subversion
shall continue to be in force and effect."
Petitioners allege in their complaint that their causes of action
proceed from respondent General Ver's order to Task Force
Makabansa to launch preemptive strikes against communist terrorist
underground houses in Metro Manila. Petitioners claim that this
order and its subsequent implementation by elements of the task
force resulted in the violation of their constitutional rights against
unlawful searches, seizures and arrest, rights to counsel and to
silence, and the right to property and that, therefore, respondents
Ver and the named members of the task force should be held liable
for damages.
But, by launching a preemptive strike against communist terrorists,
respondent members of the armed forces merely performed their
official and constitutional duties. To allow petitioners to recover from
 respondents by way of damages for acts performed in the exercise
of such duties run contrary to the policy considerations to shield
respondents as public officers from undue interference with their
duties and from potentially disabling threats of liability (Aarlon v.
Fitzgerald, 102 S. Ct. 2731; Forbes v. Chuoco Tiaco, 16 Phil. 534), and
upon the necessity of protecting the performance of governmental
and public functions from being harassed unduly or constantly
interrupted by private suits (McCallan v. State, 35 Cal. App. 605;
Metran v. Paredes, 79 Phil. 819). cdphil

xxx xxx xxx

The immunity of public officers from liability arising from the
performance of their duties is now a settled jurisprudence (Alzua v.
Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v.
Vilas, 161 US 483; 40 L. Ed. 738, 16 S. Ct. 631; Barr v. Mateo, 360; Butz
v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v.
Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de
Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).
Respondents-defendants who merely obeyed the lawful orders of
the President and his call for the suppression of the rebellion
involving petitioners enjoy such immunity from suit." 3

We find respondents' invocation of the doctrine of state immunity from suit

totally misplaced. The cases invoked by respondents actually involved acts
done by officers in the performance of official duties within the ambit of their
powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4
"No one can be held legally responsible in damages or otherwise for
doing in a legal manner what he had authority, under the law, to do.
Therefore, if the Governor-General had authority, under the law to
deport or expel the defendants, and circumstances justifying the
deportation and the method of carrying it out are left to him, then he
cannot be held liable in damages for the exercise of this power.
Moreover, if the courts are without authority to interfere in any
manner, for the purpose of controlling or interferring with the
exercise of the political powers vested in the chief executive
authority of the Government, then it must follow that the courts
cannot intervene for the purpose of declaring that he is liable in
damages for the exercise of this authority."
It may be that the respondents, as members of the Armed Forces of the
Philippines, were merely responding to their duty, as they claim, "to prevent
or suppress lawless violence, insurrection, rebellion and subversion" in
accordance with Proclamation No. 2054 of President Marcos, despite the
lifting of martial law on January 27, 1981, and in pursuance of such objective,
to launch pre-emptive strikes against alleged communist terrorist
underground houses. But this cannot be construed as a blanket license or a
roving commission untramelled by any constitutional restraint, to disregard
or transgress upon the rights and liberties of the individual citizen enshrined
in and protected by the Constitution. The Constitution remains the supreme
law of the land to which all officials, high or low, civilian or military, owe
obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or employee or
any private individual liable in damages for violating the Constitutional rights
and liberties of another, as enumerated therein, does not exempt the
respondents from responsibility. Only judges are excluded from liability
under the said article, provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.
This is not to say that military authorities are restrained from pursuing their
assigned task or carrying out their mission with vigor. We have no quarrel
with their duty to protect the Republic from its enemies, whether of the left
or of the right, or from within or without, seeking to destroy or subvert our
democratic institutions and imperil their very existence. What we are merely
trying to say is that in carrying out this task and mission, constitutional and
legal safeguards must be observed, otherwise, the very fabric of our faith will
start to unravel. In the battle of competing ideologies, the struggle for the
mind is just as vital as the struggle of arms. The linchpin in that psychological
struggle is faith in the rule of law. Once that faith is lost or compromised, the
struggle may well be abandoned.
We do not find merit in respondents' suggestion that plaintiffs' cause of
action is barred by the suspension of the privilege of the writ of habeas
corpus. Respondents contend that "Petitioners cannot circumvent the
suspension of the privilege of the writ by resorting to a damage suit aimed at
the same purpose - a judicial inquiry into the alleged illegality of their
detention. While the main relief they ask by the present action is
indemnification for alleged damages they suffered, their causes of action are
inextricably based on the same claim of violations of their constitutional
rights that they invoked in the habeas corpus case as grounds for release
from detention. Were the petitioners allowed the present suit, the judicial
inquiry barred by the suspension of the privilege of the writ will take place.
The net result is that what the courts cannot do, i.e. override the suspension
ordered by the President, petitioners will be able to do by the mere
expedient of altering the title of their action."
We do not agree. We find merit in petitioners' contention that the suspension
of the privilege of the writ of habeas corpus does not destroy petitioners'
right and cause of action for damages for illegal arrest and detention and
other violations of their constitutional rights. The suspension does not
render valid an otherwise illegal arrest or detention. What is suspended is
merely the right of the individual to seek release from detention through the
writ of habeas corpus as a speedy means of obtaining his liberty. LibLex

Moreover, as pointed out by petitioners, their right and cause of action for
damages are explicitly recognized in P.D. No. 1755 which amended Article
1146 of the Civil Code by adding the following to its text:
"However, when the action (for injury to the rights of the plaintiff or
for a quasi-delict) arises from or out of any act, activity or conduct of
any public officer involving the exercise of powers or authority
arising from Martial Law including the arrest, detention and/or trial
of the plaintiff, the same must be brought within one (1) year."

Petitioners have a point in contending that even assuming that the

suspension of the privilege of the writ of habeas corpus suspends
petitioners' right of action for damages for illegal arrest and detention, it
does not and cannot suspend their rights and causes of action for injuries
suffered because of respondents' confiscation of their private belongings,
the violation of their right to remain silent and to counsel and their right to
protection against unreasonable searches and seizures and against torture
and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed

upon us. On March 25, 1986, President Corazon C. Aquino issued
Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting
the suspension of the privilege of the writ of habeas corpus. The question
therefore has become moot and academic.
This brings us to the crucial issue raised in this petition. May a superior
officer under the notion of respondeat superior be answerable for damages,
jointly and severally with his subordinates, to the person whose
constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondeat superior is inapplicable
to the case. We agree. The doctrine of respondeat superior has been generally
limited in its application to principal and agent or to master and servant (i.e.
employer and employee) relationship. No such relationship exists between
superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our view, is the
language of Article 32. The law speaks of an officer or employee or person
"directly" or "indirectly" responsible for the violation of the constitutional
rights and liberties of another. Thus, it is not the actor alone (i.e. the one
directly responsible) who must answer for damages under Article 32; the
person indirectly responsible has also to answer for the damages or injury
caused to the aggrieved party.
By this provision, the principle of accountability of public officials under the
Constitution 5 acquires added meaning and assumes a larger dimension. No
longer may a superior official relax his vigilance or abdicate his duty to
supervise his subordinates, secure in the thought that he does not have to
answer for the transgressions committed by the latter against the
constitutionally protected rights and liberties of the citizen. Part of the
factors that propelled people power in February 1986 was the widely held
perception that the government was callous or indifferent to, if not actually
responsible for, the rampant violations of human rights. While it would
certainly be too naive to expect that violators of human rights would easily
be deterred by the prospect of facing damage suits, it should nonetheless be
made clear in no uncertain terms that Article 32 of the Civil Code makes the
persons who are directly, as well as indirectly, responsible for the
transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants General Fabian Ver,
Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col.
Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, 1st Lt. Pedro
Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the complaint on the
assumption that under the law, they cannot be held responsible for the
wrongful acts of their subordinates. Only Major Rodolfo Aguinaldo and
Master Sgt. Bienvenido Balaba were kept as defendants on the ground that
they alone "have been specifically mentioned and identified to have allegedly
caused injuries on the persons of some of the plaintiffs, which acts of alleged
physical violence constitute a delict or wrong that gave rise to a cause of
action." But such finding is not supported by the record, nor is it in accord
with law and jurisprudence.
Firstly, it is wrong to limit the plaintiffs' action for damages to "acts of alleged
physical violence" which constituted delict or wrong. Article 32 clearly
specifies as actionable the act of violating or in any manner impeding or
impairing any of the constitutional rights and liberties enumerated therein,
among others
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due process of
law;
3. The right to be secure in one's person, house, papers and effects
against unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness against one's self,
or from being forced to confess guilt, or from being induced by a
promise of immunity or reward to make a confession, except when
the person confessing becomes a state witness. LLphil

The complaint in this litigation alleges facts showing with abundant clarity
and details, how plaintiffs' constitutional rights and liberties mentioned in
Article 32 of the Civil Code were violated and impaired by defendants. The
complaint speaks of, among others, searches made without search warrants
or based on irregularly issued or substantially defective warrants; seizures
and confiscation, without proper receipts, of cash and personal effects
belonging to plaintiffs and other items of property which were not subversive
and illegal nor covered by the search warrants; arrest and detention of
plaintiffs without warrant or under irregular, improper and illegal
circumstances; detention of plaintiffs at several undisclosed places of
"safehouses" where they were kept incommunicado and subjected to
physical and psychological torture and other inhuman, degrading and brutal
treatment for the purpose of extracting incriminatory statements. The
complaint contains a detailed recital of abuses perpetrated upon the
plaintiffs violative of their constitutional rights.
Secondly, neither can it be said that only those shown to have participated
"directly" should be held liable. Article 32 of the Civil Code encompasses
within the ambit of its provisions those directly, as well as indirectly,
responsible for its violation.
The responsibility of the defendants, whether direct or indirect, is amply set
forth in the complaint. It is well established in our law and jurisprudence that
a motion to dismiss on the ground that the complaint states no cause of
action must be based on what appears on the face of the complaint. 6 To
determine the sufficiency of the cause of action, only the facts alleged in the
complaint, and no others, should be considered. 7 For this purpose, the
motion to dismiss must hypothetically admit the truth of the facts alleged in
the complaint. 8
Applying this test, it is difficult to justify the trial court's ruling, dismissing for
lack of cause of action the complaint against all defendants, except Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint
contained allegations against all the defendants which, if admitted
hypothetically, would be sufficient to establish a cause or causes of action
against all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court correct in dismissing the
complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Fuente,
Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino,
Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of
said plaintiffs to file a motion for reconsideration of the court's resolution of
November 8, 1983, granting the respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said order of November 8,
1983 was filed by "plaintiffs, through counsel." True, the motion was signed
only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgundo; Atty. Antonio
Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B.
Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad,
counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer;
and Atty. Alexander Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that the motion was filed
on behalf of all the plaintiffs. And this must have been also the
understanding of defendants' counsel himself for when he filed his comment
on the motion, he furnished copies thereof, not just to the lawyers who
signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose W.
Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez,
Antonio Rosales, Pedro Ella, Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo,
Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of November 8, 1983, the
signing attorneys did so on behalf of all the plaintiffs. They needed no
specific authority to do that. The authority of an attorney to appear for and in
behalf of a party can be assumed, unless questioned or challenged by the
adverse party or the party concerned, which was never done in this case.
Thus, it was grave abuse on the part of respondent judge to take it upon
himself to rule that the motion to set aside the order of November 8, 1953
dismissing the complaint was filed only by some of the plaintiffs, when by its
very language it was clearly intended to be filed by and for the benefit of all
of them. It is obvious that the respondent judge took umbrage under a
contrived technicality to declare that the dismissal of the complaint had
already become final with respect to some of the plaintiffs whose lawyers did
not sign the motion for reconsideration. Such action tainted with legal
infirmity cannot be sanctioned. cdphil

Accordingly, we grant the petition and annul and set aside the resolution of
the respondent court, dated November 8, 1983, its order dated May 11, 1984
and its resolution dated September 21, 1984. Let the case be remanded to
the respondent court for further proceedings. With Costs against private
respondents.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Cortes and Grio-Aquino, JJ., concur.
Teehankee, C.J., concurs with a separate opinion.
Gutierrez, Jr., J., in the result.
Padilla, J., took no part; related to counsel for Rodolfo Benosa.

Separate Opinion

TEEHANKEE, C .J ., concurring:

The Court's judgment at bar makes clear that all persons, be they public
officers or employees, or members of the military or police force or private
individuals who directly or indirectly obstruct, defeat, violate or in any
manner impede or impair the constitutional rights and civil liberties of
another person, stand liable and may be sued in court for damages as
provided in Art. 32 of the Civil Code.

The case at bar specifically upholds and reinstates the civil action for
damages filed in the court below by petitioners-plaintiffs for illegal searches
conducted by military personnel and other violations of their constitutional
rights and liberties. At the same time it rejects the automatic application of
the principle of respondeat superior or command responsibility that would
hold a superior officer jointly and severally accountable for damages,
including moral and exemplary, with his subordinates who committed such
transgressions. However, the judgment gives the caveat that a superior
officer must not abdicate his duty to properly supervise his subordinates for
he runs the risk of being held responsible for gross negligence and of being
held under the cited provision of the Civil Code as indirectly and solidarily
accountable with the tortfeasor. prcd

The rationale for this rule of law was best expressed by Brandeis in this wise:
"In a government of laws, existence of the government will be imperilled if it
fails to observe the law scrupulously. Our government is the potent
omnipresent teacher. For good or ill, it teaches the whole people by example.
Crime is contagious. If the government becomes the law breaker, it breeds
contempt for the law, it invites every man to become a law unto himself, it
invites anarchy. To declare that in the administration of criminal law the end
justifies the means . . . . would bring terrible retribution." 1
As the writer stressed in Hildawa vs. Enrile 2 which was an action to enjoin the
operations of the dreaded secret marshals during the past regime, "In a
democratic state, you don't stop to the level of criminals. If we stoop to what
they do, then we're no better than they . . . there would be no difference." . . .
The Supreme Court stands as the guarantor of the Constitutional and human
rights of all persons within its jurisdiction and cannot abdicate its basic role
under the Constitution that these rights be respected and enforced. The
spirit and letter of the Constitution negates as contrary to the basic precepts
of human rights and freedom that a person's life be snuffed out without due
process in a split second even if he is caught in flagrante delicto unless it
was called for as an act of self-defense by the law agents using reasonable
means to prevent or repel an unlawful aggression on the part of the
deceased."
Needless to say, the criminal acts of the "Sparrow Units" or death squads of
the NPA which have infiltrated the cities and suburbs and performed their
despicable killings of innocent civilians and military and police officers
constitute an equally perverse violation of the sanctity of human life and
must be severely condemned by all who adhere to the Rule of Law.
It need only be pointed out that one of the first acts of the present
government under President Corazon C. Aquino after her assumption of
office in February, 1986 was to file our government's ratification and access
to all human rights instruments adopted under the auspices of the United
Nations, declaring thereby the government's commitment to observe the
precepts of the United Nations Charter and the Universal Declaration of
Human Rights. More than this, pursuant to our Constitution which the
people decisively ratified on February 2, 1987, the independent office of the
Commission on Human Rights has been created and organized with ample
powers to investigate human rights violations and take remedial measures
against all such violations by the military as well as by the civilian groups.
||| (Aberca v. Ver, G.R. No. 69866, [April 15, 1988], 243 PHIL 735-756)
 [G.R. No. L-29676. December 24, 1968.]

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON.

LOURDES P. SAN DIEGO, as Presiding Judge of Branch II of
the Court of First Instance of Rizal (Quezon City Branch);
MARIO HENSON y DE GUZMAN; RAFAEL GONZALES y
SINCHONGCO; ANGEL MENDOZA y MARQUEZ; ROGELIO
LAZARO y MAURICIO, and BIENVENIDO WIJANGCO,
respondents.

Solicitor Amores for petitioner.

D. Castro for respondent Angel Mendoza.
Judge Lourdes P. San Diego in her own behalf as respondent.

SYLLABUS

1.CONSTITUTIONAL LAW; PROCEDURAL DUE PROCESS: BAIL OF DEFENDANT

IN CUSTODY OF A CAPITAL OFFENSE; RIGHT OF PROSECUTION TO PRESENT
ALL EVIDENCE BEFORE MOTION FOR BAIL IS RESOLVED; CASE AT BAR.
Whether the motion for bail of a defendant who is in custody for a capital
offense be resolved in a summary proceeding or in the course of a regular
trial, the prosecution must be given an opportunity to present, within a
reasonable time, all the evidence that it may desire to introduce before the
court. Should it be denied such an opportunity, there would be a violation of
procedural due process, and the order of the court granting bail should be
considered void.
2.CRIMINAL PROCEDURE; COURT'S DISCRETION IN GRANTING BAIL IN
CAPITAL OFFENSES; LIMITATION; CONTENTS OF ORDER GRANTING OR
REFUSING BAIL. The court's discretion to grant bail in capital offenses
must be exercised in the light of a summary of the evidence presented by the
prosecution; otherwise, it would be uncontrolled and might be capricious or
whimsical. Hence, the court's order granting or refusing bail must contain a
summary of the evidence for the prosecution followed by its conclusion
whether or not the evidence of guilt is wrong.
 DECISION

CAPISTRANO, J :p

In criminal case No. Q-8711, Court of First Instance of Rizal, Quezon City
Branch, the information charged the defendants, Mario Henson, Rafael
Gonzales, Angel Mendoza, Rogelio Lazaro and Bienvenido Wijangco, as
principals of the murder of Jesus Lapid with the qualifying circumstances of
treachery, evident premeditation, and abuse of superior strength and with
the aggravating circumstances of nocturnity, aid of armed men and craft or
fraud. The prosecution and the defense agreed that the motions for bail of
the defendants would be considered in the course of the regular trial instead
of in a summary proceeding. In the course of the regular trial, after the
prosecution had presented eight witnesses, the trial court resolved the
motions for bail granting the same despite the objection of the prosecution
on the ground that it still had material witnesses to present. The orders
granting bail in the amount of P50,000.00 for each defendant on the ground
that the evidence of guilt was not strong must have made Fiscal Oscar
Inocentes very angry because in his motion for reconsideration of the orders
granting bail he used contumacious language for which he was forthwith
cited for contempt. Fortunately, after the Fiscal had submitted his answer
and explanation, the trial judge, in a forgiving mood, did not punish him for
contempt on condition that the contumacious words be deleted from his
motion for reconsideration.
The question presented before us is, whether the prosecution was deprived
of procedural due process. The answer is in the affirmative. We are of the
considered opinion that whether the motion for bail of a defendant who is in
custody for a capital offense be resolved in a summary proceeding or in the
course of a regular trial, the prosecution must be given an opportunity to
present, within a reasonable time, all the evidence that it may desire to
introduce before the court should resolve the motion for bail. If, as in the
criminal case involved in the instant special civil action, the prosecution
should be denied such an opportunity, there would be a violation of
procedural due process, and the order of the court granting bail should be
considered void on that ground. The orders complained of dated October 7,
9 and 12, 1968, having been issued in violation of procedural due process,
must be considered null and void.
The court's discretion to grant bail in capital offenses must be exercised in
the light of a summary of the evidence presented by the prosecution;
otherwise, it would be uncontrolled and might be capricious or whimsical.
Hence, the court's order granting or refusing bail must contain a summary of
the evidence for the prosecution followed by its conclusion whether or not
the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968,
granting bail to the five defendants are defective in form and substance
because they do not contain a summary of the evidence presented by the
prosecution. They only contain the court's conclusion that the evidence of
guilt is not strong. Being thus defective in form and substance, the orders
complained of cannot, also on this ground, be allowed to stand.
PREMISES CONSIDERED, the orders of October 7, 9 and 12, 1968, are set
aside. No costs.
Certiorari granted.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro,
Fernando and Teehankee, JJ., concur.
Barredo, J., took no part.
||| (People v. San Diego, G.R. No. L-29676, [December 24, 1968], 135 PHIL 514-517)
[G.R. No. 134504. March 17, 2000.]

JOSELITO V. NARCISO, petitioner, vs. FLOR MARIE STA.

ROMANA-CRUZ, respondent.

Antonio Navarrete for petitioner.

Rene Sarmiento for private respondent.

SYNOPSIS

Petitioner was charged with parricide in connection with the death of his
wife, Corazon, sister of Flor Marie, herein respondent. The resolution of the
prosecutor finding prima facie case against petitioner was upheld in an
appeal to the Department of Justice, but upon motion of petitioner,
reinvestigation was conducted by another public prosecutor who found no
reason to disturb the findings of the previous prosecutor and recommended
the remand of the case for arraignment and trial. Petitioner filed an urgent
ex-parte motion to post bail which was granted by the trial court ten minutes
from its filing. The public prosecutor did not object to the grant thereof.
When respondent moved to lift the order granting bail, petitioner moved to
expunge the appearance of the private prosecutor representing respondent
and the urgent motion to lift order allowing bail. Hearings were conducted
without the resolution of the motion, prompting respondent to file a petition
for certiorari with the Court of Appeals. The appellate court ruled in favor of
respondent. It reversed and set aside the order of the Regional Trial granting
bail. Hence, this recourse by petitioner, raising the issues on the validity of
the grant of bail and private respondent's standing to file the petition before
the CA. ICacDE

In crimes punishable by death, reclusion perpetua or life imprisonment, a

hearing to be conducted by the trial judge is necessary before bail can be
granted. Without such hearing, the order granting bail is void for having been
issued with grave abuse of discretion.
In parricide, the accused cannot be considered as an offended party. In the
interest of justice and in view of the peculiar circumstances of this case, the
sister of the victim, being a close relative of the deceased, may be deemed to
be an offended party; hence, she has the legal personality to challenge the
void order of the trial court. Moreover, petitioner is estopped from
challenging the legal personality of private respondent considering that it
was never disputed by [him] during the preliminary investigation of the case,
in his appeal to the Department of Justice and during the reinvestigation of
the case.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DUTY OF JUDGE IN

OFFENSES PUNISHABLE BY RECLUSION PERPETUA OR DEATH. Stressing in
Basco v. Rapatalo that the judge had the duty to determine whether the
evidence of guilt was strong, the Court held: . . . "In the application for bail of
a person charged with a capital offense punishable by death, reclusion
perpetua or life imprisonment, a hearing, whether summary or otherwise in
the discretion of the court, must actually be conducted to determine whether
or not the evidence of guilt against the accused is strong." . . .
2. ID.; ID.; ID.; HEARING REQUIRED EVEN IN ABSENCE OF OBJECTION FROM
PROSECUTION. Jurisprudence is replete with decisions compelling judges
to conduct the required hearings in bail applications, in which the accused
stands charged with a capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such cases, for the judge
has no right to presume that the prosecutor knows what he is doing on
account of familiarity with the case. "Said reasoning is tantamount to ceding
to the prosecutor the duty of exercising judicial discretion to determine
whether the guilt of the accused is strong. Judicial discretion is the domain of
the judge before whom the petition for provisional liberty will be decided.
The mandated duty to exercise discretion has never been reposed upon the
prosecutor. So basic and fundamental is it to conduct a hearing in
connection with the grant of bail in the proper cases that it would amount to
judicial apostasy for any member of the judiciary to disclaim knowledge or
awareness thereof."
3. ID.; ID.; ID.; ID.; SUMMARY OF EVIDENCE IN GRANT OR REFUSAL OF BAIL, A
PROCEDURAL ASPECT OF DUE PROCESS. Additionally, the court's grant or
refusal of bail must contain a summary of the evidence for the prosecution,
on the basis of which should be formulated the judge's own conclusion on
whether such evidence is strong enough to indicate the guilt of the accused.
The summary thereof is considered an aspect of procedural, due process for
both the prosecution and the defense; its absence will invalidate the grant or
the denial of the application for bail.
4. ID.; ID.; PARTIES; PRIVATE PROSECUTOR IN CRIMINAL CASE HAS NO
AUTHORITY TO ACT FOR PEOPLE BEFORE APPELLATE COURTS; OFFENDED
PARTIES IN CRIMINAL CASES, EXCEPTED FROM RULE. Petitioner attacks
respondent's legal standing to file the Petition for Certiorari before the
appellate court, maintaining that only the public prosecutor or the solicitor
general may challenge the assailed Order. He invokes People v. Dacudao,
which ruled: ". . . A private prosecutor in a criminal case has no authority to
act for the People of the Philippines before this Court. It is the Government's
counsel, the Solicitor General who appears in criminal cases or incidents
before the Supreme Court. At the very least, the Provincial Fiscal himself,
with the conformity of the Solicitor General, should have raised the issue (of
whether or not the prosecution was deprived of procedural due process on
account of the grant of bail to the accused without any hearing on the
motion for bail) before us, instead of the private prosecutor with the
conformity of the Assistant Provincial Fiscal of Cebu." Citing "the ends of
substantial justice," People v. Cato, however, provided an exception to the
above doctrines in this manner: . . . "In Paredes vs. Gopengco, 29 SCRA 688
(1969), this Court ruled that the offended parties in criminal cases have
sufficient interest and personality as 'person(s) aggrieved' to file the special
civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in
line with the underlying spirit of the liberal construction of the Rules of Court
in order to promote their object." . . .
5. ID.; ID.; ID.; ID.; ID.; SISTER OF DECEASED-VICTIM IN PARRICIDE, AKIN TO
"OFFENDED PARTY." It should be remembered that the crime charged
against the private respondent is parricide; hence, the accused cannot be
regarded as an offended party. That would be a contradiction in terms and
an absurdity in fact. Nor can one expect the minor child to think and to act
for himself. Hence, we rule that in view of the peculiar circumstances of this
case, the sister of the deceased is a proper party-litigant who is akin to the
"offended party," she being a close relative of the deceased. There is no
closer kin who may be expected to take up the cudgels of justice for the
deceased.
6. ID.; ID.; ID.; FAILURE TO CHALLENGE LEGAL PERSONALITY OF PARTY
CONSTITUTES ESTOPPEL. Moreover, we agree with the Office of the
Solicitor General that "it is too late in the day for the petitioner to challenge
the legal personality of private respondent considering that it was never
disputed by [him] during the preliminary investigation of the case, in his
appeal to the Department of Justice and during the reinvestigation of the
case."TSIDEa

DECISION
PANGANIBAN, J : p

When the penalty prescribed by law is death, reclusion perpetua or life

imprisonment, a hearing must be conducted by the trial judge before bail
can be granted to the accused. Absent such hearing, the order granting bail
is void for having been issued with grave abuse of discretion. In parricide, the
accused cannot be considered an offended party just because he was
married to the deceased. In the interest of justice and in view of the peculiar
circumstances of this case, the sister of the victim may be deemed to be an
"offended party"; hence, she has the legal personality to challenge the void
order of the trial court.
cda

The Case
We invoke the foregoing principles in rejecting the Petition for Review on
Certiorari before us, assailing the February 26, 1998 Decision 1 and the June
29, 1998 Resolution of the Court of Appeals (CA), 2 which reversed and set
aside the Order of Executive Judge Pedro T. Santiago of the Regional Trial
Court (RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179
entitled "People of the Philippines v. Joselito V. Narciso."
The dispositive portion of the challenged CA Decision reads:
"WHEREFORE, the petition for certiorari is hereby GRANTED and the
order granting bail is annulled and set aside." 3

The assailed Resolution, on the other hand, denied petitioner's Motion for
Reconsideration.
The full text of the August 3, 1992 RTC Order, which the Court of Appeals
annulled and set aside, reads as follows:
"Accused who is present filed thru counsel a Motion to Allow Accused
Joselito V. Narciso to Post Bail.
"Considering that the Presiding Judge of Branch 83 who is hearing
this case is on leave and the Pairing Judge Honorable Salvador
Ceguerra is no longer within the premises, there being no objection
by the City Prosecutor Candido Rivera to the accused posting a
cashbond of P150,000.00, the undersigned in his capacity as
Executive Judge hereby approves the same." 4

The Facts of the Case

The undisputed antecedents of the case were summarized by the Court of
Appeals as follows:
"1) After conducting a preliminary investigation on the death of
Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City
Prosecutor Myrna Dimaranan Vidal of Quezon City recommended
and thereafter filed, the information for parricide against Joselito
Narciso on November 13, 1991, with the Regional Trial Court of
Quezon City, docketed therein as Criminal Case No. Q-91-24179.
"2) Joselito Narciso thereafter asked for a review of the prosecutor's
resolution [before] the Department of Justice (DOJ) which was
however denied. Joselito Narciso moved for reconsideration, which
was still denied by the DOJ.

"3) Failing before DOJ, the accused on February 6, 1992, filed in

Criminal Case No. Q-91-24179 an "Omnibus Motion for
Reinvestigation and to Lift the Warrant of Arrest." The Motion was
granted and the case was set for reinvestigation by another
prosecutor.
"4) Assistant Prosecutor Lydia A. Navarro, to whom the case was
assigned for reinvestigation, found no reason to disturb the findings
of the previous prosecutor and recommended the remand of the
case to the court for arraignment and trial.
"5) On August 3, 1992, accused filed an 'Urgent Ex-Parte (Ex Abundanti
Cautela) to Allow Accused Joselito Narciso to Post Bail'. The Public
Prosecutor registered no objection and said motion was granted on
the same day, allowing accused to post bail at P150,000.00.
xxx xxx xxx
"6) On August 14, 1992, the private prosecutor representing private
complainant Flor Marie Sta. Romana-Cruz, a sister of accused's
deceased wife, filed an "Urgent Motion to Lift Order Allowing
Accused To Post Bail'.
"7) Accused objected to the aforesaid urgent motion by filing a
'Motion to Expunge 1) Notice of Appearance of the Private
Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accused
to Post Bail".
"8) Arraignment was conducted on September 14, 1992 and the case
was set for hearing on November 9, 16, 23, December 2, 9, 1992,
January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24, 1993.
"9) On October 15, 1992, private complainant through counsel filed
her opposition to the motion to expunge [filed by] accused.
"10) On November 3, 1992 private complainant moved for the
postponement of the trials set on November 9, 16 and 23 and the
subsequent hearings thereon pending the resolution of their 'Urgent
Motion to Lift Order Allowing Accused To Post Bail'.
"11) On November 9, 1992, the court issued the first assailed order
stating therein to wit:
prcd

'ORDER
'Counsel for the accused, upon being informed of the motion
for postponement dated November 3, 1992 filed by the private
complainant, through counsel, offered no objection to the
cancellation of today's trial but not the trial set on November
16, 23 and December 2 and 9, 1992 for the reason that the
trial can proceed independently of the pending 'Urgent Motion
to Lift Order Allowing the Accused to Post Bail'.
'WHEREFORE, the trial set for today is hereby cancelled and re-
set on November 16, 1992 at 10:30 o'clock in the morning, as
previously scheduled.
'SO ORDERED.'
"12) On November 16, 1992, the court cancelled the hearing upon
motion of the public prosecutor because no prosecution witness was
available.
"13) [I]n the hearing of November 23, 1992, the private prosecutor
again moved for postponement because of the pendency of his
'Motion to Lift Order Allowing Accused to Post Bail'. On the same
date, the court issued the second assailed order which reads:
'ORDER
'On motion of the Asst. City Prosecutor, for the reason that
there is no showing in the record that the private complainant
was duly notified, hence there is no available witness this
 morning, the trial set for today is hereby cancelled and reset
on December 2 and 9, 1992 both at 10:30 o'clock in the
morning, as previously scheduled.
'Let a subpoena be issued to complainant Corazon [sic] Sta.
Romana-Narciso, the same to be served personally by the
Deputy Sheriff/Process server of this Court.
'The accused is notified of this Order in open court.
'SO ORDERED.'
"Not obtaining any resolution on her 'Motion To Lift Order Allowing
Accused to Post Bail,' private complainant filed this petition [before
the CA]."

As earlier mentioned, the Court of Appeals granted private respondent's

Petition for Certiorari. Hence, this recourse to us via Rule 45 of the Rules of
Court. 5
The Issues
Petitioner imputes to the Court of Appeals this alleged error:
"The Respondent Court of Appeals has erroneously decided
questions of substance, in a manner not in accord with law, the Rules
of Court and applicable jurisprudence, as exemplified in the
decisions of this Honorable Court, when it reversed and set aside the
order of the Regional Trial Court of Quezon-City which granted the
petitioner his constitutional right to bail, considering the absence of
strong evidence or proof of his guilt, and more especially when the
public prosecutors, who have direct control of the proceedings and
after assessment of the evidence, have themselves recommended
the grant of bail." 6

Respondent, on the other hand, poses the following issues: 7

"A
Whether or not the Respondent Court of Appeals correctly ruled that
the Order of the Regional Trial Court which granted bail to the
petitioner is substantially and procedurally infirm notwithstanding
the absence of any opposition from the public prosecutor.
"B
 Whether or not the private respondent has the legal personality to
intervene in the present criminal case."

To resolve this case, the Court believes that two issues must be taken up;
namely, (1) the validity of the grant of bail and (2) private respondent's
standing to file the Petition before the CA.
The Court's Ruling
The Petition is devoid of merit.
First Issue:
Validity of the Grant of Bail
Section 13, Article III of the Constitution provides: "All persons, except those
charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required." Furthermore, Section 7,
Article 114 of the Rules of Court, as amended, also provides: "No person
charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence of guilt is strong, shall be
admitted to bail regardless of the stage of the criminal prosecution."
Although petitioner was charged with parricide which is punishable with
reclusion perpetua, he argued before the CA that he was entitled to bail
because the evidence of his guilt was not strong. He contended that the
prosecutor's conformity to his Motion for Bail was tantamount to a finding
that the prosecution evidence against him was not strong. cdasia

The Court of Appeals ruled, however, that there was no basis for such
finding, since no hearing had been conducted on the application for bail
summary or otherwise. The appellate court found that only ten minutes had
elapsed between the filing of the Motion by the accused and the Order
granting bail, a lapse of time that could not be deemed sufficient for the trial
court to receive and evaluate any evidence. We agree with the CA.
Stressing in Basco v. Rapatalo 8 that the judge had the duty to determine
whether the evidence of guilt was strong, the Court held:
 "When the grant of bail is discretionary, the prosecution has the
burden of showing that the evidence of guilt against the accused is
strong. However, the determination of whether or not the evidence
of guilt is strong, being a matter of judicial discretion, remains with
the judge. 'This discretion by the very nature of things, may rightly be
exercised only after the evidence is submitted to the court at the
hearing. Since the discretion is directed to the weight of the evidence
and since evidence cannot properly be weighed if not duly exhibited
or produced before the court, it is obvious that a proper exercise of
judicial discretion requires that the evidence of guilt be submitted to
the court, the petitioner having the right of cross examination and to
introduce his own evidence in rebuttal.'
xxx xxx xxx
"Consequently, in the application for bail of a person charged with a
capital offense punishable by death, reclusion perpetua or life
imprisonment, a hearing, whether summary or otherwise in the
discretion of the court, must actually be conducted to determine whether
or not the evidence of guilt against the accused is strong. 'A summary
hearing means such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and consistent with
the purpose of hearing which is merely to determine the weight of
evidence for the purposes of bail. On such hearing, the court does
not sit to try the merits or to enter into any nice inquiry as to the
weight that ought to be allowed to the evidence for or against the
accused, nor will it speculate on the outcome of the trial or on what
further evidence may be therein offered and admitted. The course of
inquiry may be left to the discretion of the court which may confine
itself to receiving such evidence as has reference to substantial
matters, avoiding unnecessary thoroughness in the examination and
cross examination.' If a party is denied the opportunity to be heard,
there would be a violation of procedural due process." (Italics
supplied.)

Jurisprudence is replete with decisions compelling judges to conduct the

required hearings in bail applications, in which the accused stands charged
with a capital offense. The absence of objection from the prosecution is
never a basis for the grant of bail in such cases, for the judge has no right to
presume that the prosecutor knows what he is doing on account of
familiarity with the case. "Said reasoning is tantamount to ceding to the
prosecutor the duty of exercising judicial discretion to determine whether
the guilt of the accused is strong. Judicial discretion is the domain of the
judge before whom the petition for provisional liberty will be decided. The
mandated duty to exercise discretion has never been reposed upon the
prosecutor." 9
Imposed in Baylon v. Sison 10 was this mandatory duty to conduct a hearing
despite the prosecution's refusal to adduce evidence in opposition to the
application to grant and fix bail. We quote below the pertinent portion of the
Decision therein:
"The importance of a hearing has been emphasized in not a few
cases wherein the Court ruled that even if the prosecution refuses to
adduce evidence or fails to interpose an objection to the motion for
bail, it is still mandatory for the court to conduct a hearing or ask
searching questions from which it may infer the strength of the
evidence of guilt, or the lack of it, against the accused."

In Gimeno v. Arcueno Sr., 11 the Court also held:

"The grant of bail is a matter of right except in cases involving capital
offenses when the matter is left to the sound discretion of the court.
That discretion lies, not in the determination whether or not a
hearing should be held but in the appreciation and evaluation of the
prosecution's evidence of guilt against the accused. . . . A hearing is
plainly indispensable before a judge can aptly be said to be in a
position to determine whether the evidence for the prosecution is
weak or strong."

And in Concerned Citizens v. Elma, 12 the Court ruled:

"It is true that the weight of the evidence adduced is addressed to
the sound discretion of the court. However, such discretion may only
be exercised after the hearing called to ascertain the degree of guilt of
the accused for the purpose of determining whether or not he
should be granted liberty."
Basco v. Rapatalo 13 summarized several cases 14 that emphasized the
mandatory character of a hearing in a petition for bail in a capital case. It
enunciated the following duties of the trial judge in such petition:
"(1) Notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Section 18, Rule 114 of
the Rules of Court as amended);
"(2) Conduct a hearing of the application for bail regardless of
whether or not the prosecution refuses to present evidence to show
that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion (Sections 7 and 8, supra);
"(3) Decide whether the evidence of guilt of the accused is strong
based on the summary of evidence of the prosecution (Baylon v.
Sison, supra);
"(4) If the guilt of the accused is not strong, discharge the accused
upon the approval of the bailbond. (Section 19, supra). Otherwise,
petition should be denied." LibLex

The Court added: "The above-enumerated procedure should now leave no

room for doubt as to the duties of the trial judge in cases of bail applications.
So basic and fundamental is it to conduct a hearing in connection with the
grant of bail in the proper cases that it would amount to judicial apostasy for
any member of the judiciary to disclaim knowledge or awareness thereof."
Additionally, the court's grant or refusal of bail must contain a summary of
the evidence for the prosecution, on the basis of which should be formulated
the judge's own conclusion on whether such evidence is strong enough to
indicate the guilt of the accused. The summary thereof is considered an
aspect of procedural due process for both the prosecution and the defense;
its absence will invalidate the grant or the denial of the application for bail. 15
Clearly, the grant of bail by Executive Judge Santiago was laced with grave
abuse of discretion and the Court of Appeals was correct in reversing him.
Second Issue:
Respondent's Standing to File the Petition
Petitioner attacks respondent's legal standing to file the Petition for Certiorari
before the appellate court, maintaining that only the public prosecutor or the
solicitor general may challenge the assailed Order. He invokes People v.
Dacudao, 16 which ruled:
". . . A private prosecutor in a criminal case has no authority to act for
the People of the Philippines before this Court. It is the
Government's counsel, the Solicitor General who appears in criminal
cases or incidents before the Supreme Court. At the very least, the
Provincial Fiscal himself, with the conformity of the Solicitor General,
should have raised the issue (of whether or not the prosecution was
deprived of procedural due process on account of the grant of bail to
the accused without any hearing on the motion for bail) before us,
instead of the private prosecutor with the conformity of the Assistant
Provincial Fiscal of Cebu."

He also cites Republic v. Partisala 17 which held as follows:

"We make it known that only the Solicitor General can bring or
defend actions on behalf of the Republic of the Philippines.
Henceforth actions filed in the name of the Republic of the
Philippines if not initiated by the Solicitor General will be summarily
dismissed."

Citing the "ends of substantial justice," People v. Calo, 18 however, provided an

exception to the above doctrines in this manner:
"While the rule is, as held by the Court of Appeals, only the Solicitor
General may bring or defend actions on behalf of the Republic of the
Philippines, or represent the People or the State in criminal
proceedings pending in this Court and the Court of Appeals (Republic
vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice
would be better served, and the issues in this action could be
determined in a more just, speedy and inexpensive manner, by
entertaining the petition at bar. As an offended party in a criminal
case, private petitioner has sufficient personality and a valid
grievance against Judge Adao's order granting bail to the alleged
murderers of his (private petitioner's) father.
"In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that
the offended parties in criminal cases have sufficient interest and
personality as "person(s) aggrieved" to file the special civil action of
prohibition and certiorari under Sections 1 and 2 of Rule 65 in line
 with the underlying spirit of the liberal construction of the Rules of
Court in order to promote their object, thus:
'Furthermore, as offended parties in the pending criminal case
before petitioner judge, it cannot be gainsaid that respondents
have sufficient interest and personality as 'person(s)
aggrieved' by petitioner judge's ruling on his non-
disqualification to file the special civil action under sections 1
and 2 of Rule 65. Recently, in line with the underlying spirit of a
liberal construction of the Rules of Court in order to promote
their object, as against the literal interpretation of Rule 110,
Section 2, we held, overruling the implication of an earlier
case, that a widow possesses the right as an offended party to
file a criminal complaint for the murder of her deceased
husband."' (Id., p. 699)

The ends of substantial justice indeed require the affirmation of the

appellate court's ruling on this point. Clearly, the assailed Order of Judge
Santiago was issued in grave abuse of discretion amounting to lack of
jurisdiction. A void order is no order at all. 19 It cannot confer any right or be
the source of any relief. This Court is not merely a court of law; it is likewise a
court of justice.
To rule otherwise would leave the private respondent without any recourse
to rectify the public injustice brought about by the trial court's Order, leaving
her with only the standing to file administrative charges for ignorance of the
law against the judge and the prosecutor. A party cannot be left without
recourse to address a substantive issue in law. cda

Moreover, we agree with the Office of the Solicitor General that "it is too late
in the day for the petitioner to challenge the legal personality of private
respondent considering that it was never disputed by [him] during the
preliminary investigation of the case, in his appeal to the Department of
Justice and during the reinvestigation of the case." 20
Corollary to the question of standing, petitioner submits that even if the
exception were made to apply, private respondent is not an "offended party"
who is granted the right to challenge the assailed RTC Order. He maintains
that only the compulsory heirs of the deceased, who are the accused himself
and his minor child, may file the instant action. We disagree.
It should be remembered that the crime charged against the private
respondent is parricide; hence, the accused cannot be regarded as an
offended party. That would be a contradiction in terms and an absurdity in
fact. Nor can one expect the minor child to think and to act for himself.
Hence, we rule that in view of the peculiar circumstances of this case, the
sister of the deceased is a proper party-litigant who is akin to the "offended
party," she being a close relative of the deceased. There is no closer kin who
may be expected to take up the cudgels of justice for the deceased.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED.
Costs against petitioner. LLpr

SO ORDERED.
(Narciso v. Sta. Romana-Cruz, G.R. No. 134504, [March 17, 2000], 385 PHIL 208-
|||

224)
[G.R. No. 168338. February 15, 2008.]

FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his

capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),
respondents.

DECISION

PUNO, C.J :
p

A. Precis
In this jurisdiction, it is established that freedom of the press is
crucial and so inextricably woven into the right to free speech and free
expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present would
be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished
freedom. We have struck down laws and issuances meant to curtail this
right, as in Adiong v. COMELEC, 1 Burgos v. Chief of Staff, 2 Social Weather
Stations v. COMELEC, 3 and Bayan v. Executive Secretary Ermita. 4 When on its
face, it is clear that a governmental act is nothing more than a naked
means to prevent the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the
2004 national and local elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation
allegedly between the President of the Philippines, Gloria Macapagal
Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped allegedly through wire-
tapping. 5 Later, in a Malacaang press briefing, Secretary Bunye produced
two versions of the tape, one supposedly the complete version, and the
other, a spliced, "doctored" or altered version, which would suggest that
the President had instructed the COMELEC official to manipulate the
election results in the President's favor. 6 It seems that Secretary Bunye
admitted that the voice was that of President Arroyo, but subsequently
made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph
Estrada, Atty. Alan Paguia, subsequently released an alleged authentic
tape recording of the wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers. 8
3. On June 8, 2005, respondent Department of Justice (DOJ)
Secretary Raul Gonzales warned reporters that those who had copies of
the compact disc (CD) and those broadcasting or publishing its contents
could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that persons
possessing or airing said tapes were committing a continuing offense,
subject to arrest by anybody who had personal knowledge if the crime
was committed or was being committed in their presence. 9
4. On June 9, 2005, in another press briefing, Secretary Gonzales
ordered the National Bureau of Investigation (NBI) to go after media
organizations "found to have caused the spread, the playing and the printing
of the contents of a tape" of an alleged wiretapped conversation involving
the President about fixing votes in the 2004 national elections. Gonzales
said that he was going to start with Inq7.net, a joint venture between the
Philippine Daily Inquirer and GMA7 television network, because by the
very nature of the Internet medium, it was able to disseminate the
contents of the tape more widely. He then expressed his intention of
inviting the editors and managers of Inq7.net and GMA7 to a probe, and
supposedly declared, "I [have] asked the NBI to conduct a tactical
interrogation of all concerned." 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country's unusual situation, and in
order not to unnecessarily aggravate the same, the NTC warns all
radio stations and television network owners/operators that the
conditions of the authorization and permits issued to them by
Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use [their]
stations for the broadcasting or telecasting of false information or
willful misrepresentation. Relative thereto, it has come to the
attention of the [NTC] that certain personalities are in possession of
alleged taped conversations which they claim involve the President
of the Philippines and a Commissioner of the COMELEC regarding
supposed violation of election laws.
These personalities have admitted that the taped conversations are
products of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast
of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions
of the Provisional Authority and/or Certificate of Authority issued to
these radio and television stations. It has been subsequently
 established that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC
circulars on program standards to be observed by radio and
television stations. NTC Memorandum Circular 111-12-85 explicitly
states, among others, that "all radio broadcasting and television
stations shall, during any broadcast or telecast, cut off from the air
the speech, play, act or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate false information or
such other willful misrepresentation, or to propose and/or incite
treason, rebellion or sedition." The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television
stations from using their stations to broadcast or telecast any
speech, language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive
or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of
due process, to apply with full force the provisions of said
Circulars and their accompanying sanctions on erring radio and
television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of

Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC
allegedly assured the KBP that the press release did not violate the
constitutional freedom of speech, of expression, and of the press, and the
right to information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: 12
NTC respects and will not hinder freedom of the press and
the right to information on matters of public concern.
KBP & its members have always been committed to the
exercise of press freedom with high sense of
 responsibility and discerning judgment of fairness and
honesty.
NTC did not issue any MC [Memorandum Circular] or Order
constituting a restraint of press freedom or censorship.
The NTC further denies and does not intend to limit or
restrict the interview of members of the opposition or
free expression of views.
What is being asked by NTC is that the exercise of press
freedom [be] done responsibly.
KBP has program standards that KBP members will observe
in the treatment of news and public affairs programs.
These include verification of sources, non-airing of
materials that would constitute inciting to sedition and/or
rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or
commentaries.
The supposed wiretapped tapes should be treated with
sensitivity and handled responsibly giving due
consideration to the process being undertaken to verify
and validate the authenticity and actual content of the
same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court
against respondents Secretary Gonzales and the NTC, "praying for the
issuance of the writs of certiorari and prohibition, as extraordinary legal
remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the
respondents." 13
Alleging that the acts of respondents are violations of the freedom
on expression and of the press, and the right of the people to information
on matters of public concern, 14 petitioner specifically asked this Court:
 [F]or [the] nullification of acts, issuances, and orders of respondents
committed or made since June 6, 2005 until the present that curtail
the public's rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of
President Arroyo and for prohibition of the further commission of
such acts, and making of such issuances, and orders by respondents.
15

Respondents 16 denied that the acts transgress the Constitution,

and questioned petitioner's legal standing to file the petition. Among the
arguments they raised as to the validity of the "fair warning" issued by
respondent NTC, is that broadcast media enjoy lesser constitutional
guarantees compared to print media, and the warning was issued
pursuant to the NTC's mandate to regulate the telecommunications
industry. 17 It was also stressed that "most of the [television] and radio
stations continue, even to this date, to air the tapes, but of late within the
parameters agreed upon between the NTC and KBP." 18

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional
challenge peculiar. Petitioner, who is not a member of the broadcast
media, prays that we strike down the acts and statements made by
respondents as violations of the right to free speech, free expression and
a free press. For another, the recipients of the press statements have not
come forward neither intervening nor joining petitioner in this action.
Indeed, as a group, they issued a joint statement with respondent NTC
that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal
standing, having failed to allege "such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions." 19
But as early as half a century ago, we have already held that where
serious constitutional questions are involved, "the transcendental
importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside if we must, technicalities of
procedure." 20 Subsequently, this Court has repeatedly and consistently
refused to wield procedural barriers as impediments to its addressing and
resolving serious legal questions that greatly impact on public interest, 21
in keeping with the Court's duty under the 1987 Constitution to determine
whether or not other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not
abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a
case involves an issue of overarching significance to our society, 22 we
therefore brush aside technicalities of procedure and take cognizance of
this petition, 23 seeing as it involves a challenge to the most exalted of all
the civil rights, the freedom of expression. The petition raises other
issues like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of
the respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether
free speech and freedom of the press have been infringed, the case
at bar also gives this Court the opportunity: (1) to distill the essence
of freedom of speech and of the press now beclouded by the vagaries
of motherhood statements; (2) to clarify the types of speeches and
their differing restraints allowed by law; (3) to discuss the core
concepts of prior restraint, content-neutral and content-based
regulations and their constitutional standard of review; (4) to
examine the historical difference in the treatment of restraints
between print and broadcast media and stress the standard of
review governing both; and (5) to call attention to the ongoing
blurring of the lines of distinction between print and broadcast
media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances. 24
 Freedom of expression has gained recognition as a fundamental
principle of every democratic government, and given a preferred right
that stands on a higher level than substantive economic freedom or other
liberties. The cognate rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the First Amendment of the
U.S. Bill of Rights, 25 were considered the necessary consequence of
republican institutions and the complement of free speech. 26 This
preferred status of free speech has also been codified at the international
level, its recognition now enshrined in international law as a customary
norm that binds all nations. 27
In the Philippines, the primacy and high esteem accorded freedom
of expression is a fundamental postulate of our constitutional system. 28
This right was elevated to constitutional status in the 1935, the 1973 and
the 1987 Constitutions, reflecting our own lesson of history, both political
and legal, that freedom of speech is an indispensable condition for nearly
every other form of freedom. 29 Moreover, our history shows that the
struggle to protect the freedom of speech, expression and the press was,
at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms. 30 For it is only when the people have
unbridled access to information and the press that they will be capable of
rendering enlightened judgments. In the oft-quoted words of Thomas
Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts
that we have adopted as part and parcel of our own Bill of Rights
provision on this basic freedom. 31 What is embraced under this provision
was discussed exhaustively by the Court in Gonzales v. Commission on
Elections, 32 in which it was held:
. . . At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public
interest without censorship and punishment. There is to be no
previous restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and
 present danger of substantive evil that Congress has a right to
prevent. 33

Gonzales further explained that the vital need of a constitutional

democracy for freedom of expression is undeniable, whether as a means
of assuring individual self-fulfillment; of attaining the truth; of assuring
participation by the people in social, including political, decision-making;
and of maintaining the balance between stability and change. 34 As early
as the 1920s, the trend as reflected in Philippine and American decisions
was to recognize the broadest scope and assure the widest latitude for
this constitutional guarantee. The trend represents a profound
commitment to the principle that debate on public issue should be
uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than
the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, and to take refuge in the existing
climate of opinion on any matter of public consequence. 36 When
atrophied, the right becomes meaningless. 37 The right belongs as well
if not more to those who question, who do not conform, who differ. 38
The ideas that may be expressed under this freedom are confined not
only to those that are conventional or acceptable to the majority. To be
truly meaningful, freedom of speech and of the press should allow and
even encourage the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view "induces a condition
of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger." 39 To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us. 40
The scope of freedom of expression is so broad that it extends
protection to nearly all forms of communication. It protects speech, print
and assembly regarding secular as well as political causes, and is not
confined to any particular field of human interest. The protection covers
myriad matters of public interest or concern embracing all issues, about
which information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and free
press for religious, political, economic, scientific, news, or informational
ends, inasmuch as the Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression of ideas that are
conventional or shared by a majority.
The constitutional protection is not limited to the exposition of
ideas. The protection afforded free speech extends to speech or
publications that are entertaining as well as instructive or informative.
Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, 41 this Court
stated that all forms of media, whether print or broadcast, are entitled to
the broad protection of the clause on freedom of speech and of
expression.
While all forms of communication are entitled to the broad
protection of freedom of expression clause, the freedom of film,
television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspapers and other print media, as will
be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would
appear that the right to free speech and a free press is not susceptible of
any limitation. But the realities of life in a complex society preclude a
literal interpretation of the provision prohibiting the passage of a law that
would abridge such freedom. For freedom of expression is not an
absolute, 42 nor is it an "unbridled license that gives immunity for every
possible use of language and prevents the punishment of those who
abuse this freedom."
Thus, all speech are not treated the same. Some types of speech
may be subjected to some regulation by the State under its pervasive
police power, in order that it may not be injurious to the equal right of
others or those of the community or society. 43 The difference in
treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g.,
obscene speech. Distinctions have therefore been made in the treatment,
analysis, and evaluation of the permissible scope of restrictions on various
categories of speech. 44 We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting
words" are not entitled to constitutional protection and may be penalized.
45

Moreover, the techniques of reviewing alleged restrictions on

speech (overbreadth, vagueness, and so on) have been applied differently
to each category, either consciously or unconsciously. 46 A study of free
speech jurisprudence whether here or abroad will reveal that courts
have developed different tests as to specific types or categories of speech
in concrete situations; i.e., subversive speech; obscene speech; the speech
of the broadcast media and of the traditional print media; libelous speech;
speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the dangerous
tendency doctrine which permits limitations on speech once a rational
connection has been established between the speech restrained and the
danger contemplated; 48 (b) the balancing of interests tests, used as a
standard when courts need to balance conflicting social values and
individual interests, and requires a conscious and detailed consideration
of the interplay of interests observable in a given situation of type of
situation; 49 and (c) the clear and present danger rule which rests on the
premise that speech may be restrained because there is substantial
danger that the speech will likely lead to an evil the government has a
right to prevent. This rule requires that the evil consequences sought to
be prevented must be substantive, "extremely serious and the degree of
imminence extremely high." 50
As articulated in our jurisprudence, we have applied either the
dangerous tendency doctrine or clear and present danger testto
resolve free speech challenges. More recently, we have concluded that we
have generally adhered to the clear and present danger test. 51
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom
as part of the larger right of free discussion and expression. Its practical
importance, though, is more easily grasped. It is the chief source of
information on current affairs. It is the most pervasive and perhaps most
powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their
aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the
mistakes of every administration would go uncorrected and its abuses
unexposed. As Justice Malcolm wrote in United States v. Bustos: 52
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear
conscience.

Its contribution to the public weal makes freedom of the press

deserving of extra protection. Indeed, the press benefits from certain
ancillary rights. The productions of writers are classified as intellectual
and proprietary. Persons who interfere or defeat the freedom to write for
the press or to maintain a periodical publication are liable for damages,
be they private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL
AND CONTENT-BASED REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935
Constitution, has recognized four aspects of freedom of the press. These
are (1) freedom from prior restraint; (2) freedom from punishment
subsequent to publication; 53 (3) freedom of access to information; 54 and
(4) freedom of circulation. 55
Considering that petitioner has argued that respondents' press
statement constitutes a form of impermissible prior restraint, a closer
scrutiny of this principle is in order, as well as its sub-specie of content-
based (as distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny
that their acts constitute prior restraints. This presents a unique tinge to
the present challenge, considering that the cases in our jurisdiction
involving prior restrictions on speech never had any issue of whether the
governmental act or issuance actually constituted prior restraint. Rather,
the determinations were always about whether the restraint was justified
by the Constitution.
Be that as it may, the determination in every case of whether there
is an impermissible restraint on the freedom of speech has always been
based on the circumstances of each case, including the nature of the
restraint. And in its application in our jurisdiction, the parameters of
this principle have been etched on a case-to-case basis, always
tested by scrutinizing the governmental issuance or act against the
circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the
press or other forms of expression in advance of actual publication or
dissemination. 56 Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts
that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the
privilege to publish; and even injunctions against publication. Even the
closure of the business and printing offices of certain newspapers,
resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. 57 Any law or official that
requires some
form of permission to be had before publication can be made,
|||

commits an infringement of the constitutional right, and remedy can be

had at the courts.
Given that deeply ensconced in our fundamental law is the hostility
against all prior restraints on speech, and any act that restrains speech is
presumed invalid, 58 and "any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows," 59
it is important to stress not all prior restraints on speech are invalid.
Certain previous restraints may be permitted by the Constitution,
but determined only upon a careful evaluation of the challenged act as
against the appropriate test by which it should be measured against.
 Hence, it is not enough to determine whether the challenged act
constitutes some form of restraint on freedom of speech. A distinction
has to be made whether the restraint is (1) a content-neutral regulation,
i.e., merely concerned with the incidents of the speech, or one that merely
controls the time, place or manner, and under well defined standards; 60
or (2) a content-based restraint or censorship, i.e., the restriction is based
on the subject matter of the utterance or speech. 61 The cast of the
restriction determines the test by which the challenged act is assayed
with.
When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required for its
validity. 62 Because regulations of this type are not designed to suppress
any particular message, they are not subject to the strictest form of
judicial scrutiny but an intermediate approach somewhere between
the mere rationality that is required of any other law and the compelling
interest standard applied to content-based restrictions. 63 The test is
called intermediate because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions be narrowly-tailored
to promote an important or significant governmental interest that is
unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important
or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of

speech or of the press based on content is given the strictest scrutiny
in light of its inherent and invasive impact. Only when the challenged act
has overcome the clear and present danger rule will it pass
constitutional muster, 65 with the government having the burden of
overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the
content-based restraint will be struck down. 66
 With respect to content-based restrictions, the government must
also show the type of harm the speech sought to be restrained would
bring about especially the gravity and the imminence of the threatened
harm otherwise the prior restraint will be invalid. Prior restraint on
speech based on its content cannot be justified by hypothetical fears, "but
only by showing a substantive and imminent evil that has taken the life of
a reality already on ground." 67 As formulated, "the question in every case
is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." 68
The regulation which restricts the speech content must also serve
an important or substantial government interest, which is unrelated to the
suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than
what is essential to the furtherance of that interest. 70 A restriction that is
so broad that it encompasses more than what is required to satisfy the
governmental interest will be invalidated. 71 The regulation, therefore,
must be reasonable and narrowly drawn to fit the regulatory purpose,
with the least restrictive means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral
regulation, it is subjected to an intermediate review. A content-based
regulation, 73 however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case
at bar need to be subjected to the clear and present danger rule, as
they are content-based restrictions. The acts of respondents focused
solely on but one object a specific content fixed as these were on the
alleged taped conversations between the President and a COMELEC
official. Undoubtedly these did not merely provide regulations as to the
time, place or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
 Finally, comes respondents' argument that the challenged act is
valid on the ground that broadcast media enjoys free speech rights that
are lesser in scope to that of print media. We next explore and test the
validity of this argument, insofar as it has been invoked to validate a
content-based restriction on broadcast media.
The regimes presently in place for each type of media differ
from one other. Contrasted with the regime in respect of books,
newspapers, magazines and traditional printed matter, broadcasting, film
and video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins
in the United States. There, broadcast radio and television have been held
to have limited First Amendment protection, 75 and U.S. Courts have
excluded broadcast media from the application of the "strict scrutiny"
standard that they would otherwise apply to content-based restrictions. 76
According to U.S. Courts, the three major reasons why broadcast media
stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while
print medium may be limitless]; 77 (b) its "pervasiveness" as a medium;
and (c) its unique accessibility to children. 78 Because cases involving
broadcast media need not follow "precisely the same approach that [U.S.
courts] have applied to other media," nor go "so far as to demand that
such regulations serve 'compelling' government interests," 79 they are
decided on whether the "governmental restriction" is narrowly
tailored to further a substantial governmental interest," 80 or the
intermediate test.
As pointed out by respondents, Philippine jurisprudence has also
echoed a differentiation in treatment between broadcast and print media.
Nevertheless, a review of Philippine case law on broadcast media will
show that as we have deviated with the American conception of
the Bill of Rights 81 we likewise did not adopt en masse the U.S.
conception of free speech as it relates to broadcast media, particularly
as to which test would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the
difference in treatment, in the main, is in the regulatory scheme applied to
broadcast media that is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g., obscenity, pornography,
seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security
or the electoral process.
Second, regardless of the regulatory schemes that broadcast media
is subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without
making a distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was
first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans, 82
wherein it was held that "[a]ll forms of media, whether print or broadcast,
are entitled to the broad protection of the freedom of speech and expression
clause. The test for limitations on freedom of expression continues to be the
clear and present danger rule . . ." 83
Dans was a case filed to compel the reopening of a radio station
which had been summarily closed on grounds of national security.
Although the issue had become moot and academic because the owners
were no longer interested to reopen, the Court still proceeded to do an
analysis of the case and made formulations to serve as guidelines for all
inferior courts and bodies exercising quasi-judicial functions. Particularly,
the Court made a detailed exposition as to what needs be considered in
cases involving broadcast media. Thus: 84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the
broad protection of the freedom of speech and expression clause.
The test for limitations on freedom of expression continues to
be the clear and present danger rule, that words are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
the lawmaker has a right to prevent, In his Constitution of the
Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L.
Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear
and present danger test, however, does not lend itself to a simplistic
and all embracing interpretation applicable to all utterances in all
forums.
Broadcasting has to be licensed. Airwave frequencies have to be
allocated among qualified users. A broadcast corporation cannot
simply appropriate a certain frequency without regard for
government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of
the freedom of expression clause. Necessarily, however, the freedom
of television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting,
more than other forms of communications, receives the most limited
protection from the free expression clause. First, broadcast media
have established a uniquely pervasive presence in the lives of all
citizens, Material presented over the airwaves confronts the citizen,
not only in public, but in the privacy of his home. Second,
broadcasting is uniquely accessible to children. Bookstores and
motion picture theaters may be prohibited from making certain
material available to children, but the same selectivity cannot be
done in radio or television, where the listener or viewer is constantly
tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive
presence in the lives of all Filipinos. Newspapers and current books
are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even
here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic
needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The
television set is also becoming universal. Their message may be
simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age,
persons of varying susceptibilities to persuasion, persons of different
I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would be difficult to monitor or
predict. The impact of the vibrant speech is forceful and immediate.
Unlike readers of the printed work, the radio audience has lesser
opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the
particular circumstances of broadcast media into account. The
supervision of radio stations-whether by government or through
self-regulation by the industry itself calls for thoughtful, intelligent
and sophisticated handling.
The government has a right to be protected against broadcasts
which incite the listeners to violently overthrow it. Radio and
television may not be used to organize a rebellion or to signal the
start of widespread uprising. At the same time, the people have a
right to be informed. Radio and television would have little reason
for existence if broadcasts are limited to bland, obsequious, or
pleasantly entertaining utterances. Since they are the most
convenient and popular means of disseminating varying views on
public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the
vitality of a representative democracy. In the 1918 case of United
States v. Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all
forms of media by the due process and freedom of expression
clauses of the Constitution. [Citations omitted]
 It is interesting to note that the Court in Dans adopted the
arguments found in U.S. jurisprudence to justify differentiation of
treatment (i.e., the scarcity, pervasiveness and accessibility to children),
but only after categorically declaring that "the test for limitations on
freedom of expression continues to be the clear and present danger
rule," for all forms of media, whether print or broadcast. Indeed, a
close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted
to what is otherwise deemed as "unprotected speech" (e.g., obscenity,
national security, seditious and inciting speech), or to validate a licensing
or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court
declared in Dans that the freedom given to broadcast media was
"somewhat lesser in scope than the freedom accorded to newspaper and
print media," it was not as to what test should be applied, but the context
by which requirements of licensing, allocation of airwaves, and application
of norms to unprotected speech. 85
In the same year that the Dans case was decided, it was reiterated in
Gonzales v. Katigbak, 86 that the test to determine free expression
challenges was the clear and present danger, again without distinguishing
the media. 87 Katigbak, strictly speaking, does not treat of broadcast media
but motion pictures. Although the issue involved obscenity standards as
applied to movies, 88 the Court concluded its decision with the following
obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the
concept of obscenity applicable to motion pictures. It is the
consensus of this Court that where television is concerned, a less
liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be
among the avid viewers of the programs therein shown. . . . . It
cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls

and dissemination of the results by a broadcast company, we reiterated
that the clear and present danger rule is the test we unquestionably
adhere to issues that involve freedoms of speech and of the press. 89
This is not to suggest, however, that the clear and present
danger rule has been applied to all cases that involve the broadcast
media. The rule applies to all media, including broadcast, but only when
the challenged act is a content-based regulation that infringes on free
speech, expression and the press. Indeed, in Osmena v. COMELEC, 90 which
also involved broadcast media, the Court refused to apply the clear and
present danger rule to a COMELEC regulation of time and manner of
advertising of political advertisements because the challenged restriction
was content-neutral. 91 And in a case involving due process and equal
protection issues, the Court in Telecommunications and Broadcast Attorneys
of the Philippines v. COMELEC 92 treated a restriction imposed on a
broadcast media as a reasonable condition for the grant of the media's
franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in
print media is observed also in other jurisdictions, where the statutory
regimes in place over broadcast media include elements of licensing,
regulation by administrative bodies, and censorship. As explained by a
British author:
The reasons behind treating broadcast and films differently from the
print media differ in a number of respects, but have a common
historical basis. The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact
on audiences, films, videos and broadcasting require a system of
prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the
public in a number of respects, but are also seen as possible sources
of harm. 93

Parenthetically, these justifications are now the subject of debate.

Historically, the scarcity of frequencies was thought to provide a
rationale. However, cable and satellite television have enormously
increased the number of actual and potential channels. Digital
technology will further increase the number of channels available. But
still, the argument persists that broadcasting is the most influential means
of communication, since it comes into the home, and so much time is
spent watching television. Since it has a unique impact on people and
affects children in a way that the print media normally does not, that
regulation is said to be necessary in order to preserve pluralism. It has
been argued further that a significant main threat to free expression in
terms of diversity comes not from government, but from private
corporate bodies. These developments show a need for a reexamination
of the traditional notions of the scope and extent of broadcast media
regulation. 94
The emergence of digital technology which has led to the
convergence of broadcasting, telecommunications and the computer
industry has likewise led to the question of whether the regulatory
model for broadcasting will continue to be appropriate in the converged
environment. 95 Internet, for example, remains largely unregulated, yet
the Internet and the broadcast media share similarities, 96 and the
rationales used to support broadcast regulation apply equally to the
Internet. 97 Thus, it has been argued that courts, legislative bodies and the
government agencies regulating media must agree to regulate both,
regulate neither or develop a new regulatory framework and rationale to
justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions
on broadcast media, let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts freedom of speech or of
the press based on content is given the strictest scrutiny, with the
government having the burden of overcoming the presumed
unconstitutionality by the clear and present danger rule. This rule
applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at
bar as it spells out the following: (a) the test; (b) the presumption; (c) the
burden of proof; (d) the party to discharge the burden; and (e) the
quantum of evidence necessary. On the basis of the records of the case at
bar, respondents who have the burden to show that these acts do not
abridge freedom of speech and of the press failed to hurdle the clear and
present danger test. It appears that the great evil which government
wants to prevent is the airing of a tape recording in alleged violation of the
anti-wiretapping law. The records of the case at bar, however, are
confused and confusing, and respondents' evidence falls short of
satisfying the clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the identity of the voices in
the tape recording. Secondly, the integrity of the taped conversation is
also suspect. The Press Secretary showed to the public two versions, one
supposed to be a "complete" version and the other, an "altered" version.
Thirdly, the evidence of the respondents on the who's and the how's of
the wiretapping act is ambivalent, especially considering the tape's
different versions. The identity of the wire-tappers, the manner of its
commission and other related and relevant proofs are some of the
invisibles of this case. Fourthly, given all these unsettled facets of the
tape, it is even arguable whether its airing would violate the anti-
wiretapping law.
We rule that not every violation of a law will justify
straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide
norms of conduct which even if violated have only an adverse effect on a
person's private comfort but does not endanger national security. There
are laws of great significance but their violation, by itself and without
more, cannot support suppression of free speech and free press. In fine,
violation of law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the
press. The totality of the injurious effects of the violation to private and
public interest must be calibrated in light of the preferred status accorded
by the Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and calibrated
measurement of the circumference of all these factors to determine
compliance with the clear and present danger test, the Court should not
be misinterpreted as devaluing violations of law. By all means,
violations of law should be vigorously prosecuted by the State for they
breed their own evil consequence. But to repeat, the need to prevent
their violation cannot per se trump the exercise of free speech and
free press, a preferred right whose breach can lead to greater evils.
For this failure of the respondents alone to offer proof to satisfy the clear
and present danger test, the Court has no option but to uphold the
exercise of free speech and free press. There is no showing that the
feared violation of the anti-wiretapping law clearly endangers the
national security of the State.
This is not all the faultline in the stance of the respondents. We slide
to the issue of whether the mere press statements of the Secretary of
Justice and of the NTC in question constitute a form of content-based
prior restraint that has transgressed the Constitution. In resolving this
issue, we hold that it is not decisive that the press statements made
by respondents were not reduced in or followed up with formal
orders or circulars. It is sufficient that the press statements were
made by respondents while in the exercise of their official functions.
Undoubtedly, respondent Gonzales made his statements as Secretary of
Justice, while the NTC issued its statement as the regulatory body of
media. Any act done, such as a speech uttered, for and on behalf of
the government in an official capacity is covered by the rule on prior
restraint. The concept of an "act" does not limit itself to acts already
converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in
the easy circumvention of the prohibition on prior restraint. The
press statements at bar are acts that should be struck down as they
constitute impermissible forms of prior restraints on the right to free
speech and press.
There is enough evidence of chilling effect of the complained acts
on record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio
and broadcast media. They also came from the Secretary of Justice, the
alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the warnings,
the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press
Statement. After the warnings, petitioner Chavez was left alone to fight
this battle for freedom of speech and of the press. This silence on the
sidelines on the part of some media practitioners is too deafening to be
the subject of misinterpretation.
 The constitutional imperative for us to strike down unconstitutional
acts should always be exercised with care and in light of the distinct facts
of each case. For there are no hard and fast rules when it comes to
slippery constitutional questions, and the limits and construct of relative
freedoms are never set in stone. Issues revolving on their construct must
be decided on a case to case basis, always based on the peculiar shapes
and shadows of each case. But in cases where the challenged acts are
patent invasions of a constitutionally protected right, we should be swift
in striking them down as nullities per se. A blow too soon struck for
freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari
and prohibition are hereby issued, nullifying the official statements made
by respondents on June 8, and 11, 2005 warning the media on airing the
alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the
exercise of freedom of speech and of the press
SO ORDERED.
Ynares-Santiago and Reyes, JJ., concur.
Quisumbing, J., concurs in the result and joins in the separate
concurring opinion of J. Carpio.
Sandoval-Gutierrez, J., please see my separate concurring opinion.
Carpio, J., see separate concurring opinion.
Austria-Martinez, J., also joins in the separate opinion of J. Carpio.
Corona, J., joins the dissent of Mr. Justice Nachura.
Carpio-Morales, J., joins in the separate concurring opinion of J.
Carpio.
Azcuna, J., concurs in a separate opinion.
Tinga, J., please see separate opinion (dissenting and concurring).
Chico-Nazario, J., please see my separate dissenting opinion.
Velasco, Jr., J., please see separate concurring and dissenting
opinion.
 Nachura, J., please see my dissent.
Leonardo-de Castro, J., joins the dissent of Justice Nazario and Justice
Nachura.

Separate Opinions

SANDOVAL-GUTIERREZ, J., concurring:

"Where they have burned books, they will end in burning human
beings."

These are the prophetic words of the German Author Heinrich

Heine when the Nazis fed to the flames the books written by Jewish
authors. True enough, the mass extermination of Jews followed a few
years later. What was first a severe form of book censorship ended up
as genocide.
Today, I vote to grant the writs of certiorari and prohibition mindful
of Heine's prophecy. The issuance of the Press Release by the National
Telecommunications Commission (NTC) is a form of censorship. To allow
the broadcast media to be burdened by it is the first misstep leading to
the strangling of our citizens. We must strike this possibility while we still
have a voice.
I fully concur with the well-written ponencia of Mr. Chief Justice
Reynato S. Puno and that of Mr. Justice Antonio T. Carpio.
The Universal Declaration of Human Rights guarantees that
"everyone has the right to freedom of opinion and expression."
Accordingly, this right "includes the freedom to hold opinions without
interference and impart information and ideas through any media
regardless of frontiers." 1 At the same time, our Constitution mandates
that "no law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people to peaceably
assemble and petition the government for redress of grievances."
These guarantees are testaments to the value that humanity
accords to the above-mentioned freedoms commonly summed up as
freedom of expression. The justifications for this high regard are
specifically identified by Justice Mclachlin of the Canadian Supreme Court
in Her Majesty The Queen v. Keegstra, 2 to wit: (1) Freedom of expression
promotes the free flow of ideas essential to political democracy and
democratic institutions, and limits the ability of the State to subvert other
rights and freedoms; (2) it promotes a marketplace of ideas, which
includes, but is not limited to, the search for truth; (3) it is intrinsically
valuable as part of the self-actualization of speakers and listeners; and (4)
it is justified by the dangers for good government of allowing its
suppression.
These are the same justifications why censorship is anathema to
freedom of expression. Censorship is that officious functionary of the
repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to
say on pain of punishment should he be so rash as to disobey. 3
Censorship may come in the form of prior restraint or subsequent
punishment. Prior restraint means official governmental restrictions on
the press or other forms of expression in advance of actual publication or
dissemination. 4 Its most blatant form is a system of licensing
administered by an executive officer. 5 Similar to this is judicial prior
restraint which takes the form of an injunction against publication. 6 And
equally objectionable as prior restraint is the imposition of license taxes
that renders publication or advertising more burdensome. 7 On the other
hand, subsequent punishment is the imposition of liability to the
individual exercising his freedom. It may be in any form, such as penal,
civil or administrative penalty.
I
The Issuance of the Press Release
Constitutes Censorship
In the case at bar, the first issue is whether the Press Release of the
NTC constitutes censorship. Reference to its pertinent portions is
therefore imperative. Thus:
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast
 of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions
of the Provisional Authority and/or Certificate of Authority issued to
these radio and television stations. It has been subsequently
established that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be a just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations
issued to said companies.
xxx xxx xxx
The [NTC] will not hesitate, after observing the requirements of
due process, to apply with full force the provisions of said
Circulars and their accompanying sanctions on erring radio and
television stations and their owners/operators.

The threat of suspension, revocation and/or cancellation of the

licenses or authorization hurled against radio and television stations
should they air the Garci Tape is definitely a form of prior restraint. The
license or authorization is the life of every media station. If withheld from
them, their very existence is lost. Surely, no threat could be more
discouraging to them than the suspension or revocation of their licenses.
In Far Eastern Broadcasting v. Dans, 8 while the need for licensing was
rightly defended, the defense was for the purpose, not of regulation of
broadcast content, but for the proper allocation of airwaves. In the
present case, what the NTC intends to regulate are the contents of the
Garci Tapes the alleged taped conversation involving the President of
the Philippines and a Commissioner of the Commission on Election. The
reason given is that it is a "false information or willful misrepresentation."
As aptly stated by Mr. Justice Antonio T. Carpio that "the NTC action in
restraining the airing of the Garci Tapes is a content-based prior restraint
because it is directed at the message of the Garci Tapes."
History teaches us that licensing has been one of the most potent
tools of censorship. This powerful bureaucratic system of censorship in
Medieval Europe was the target of John Milton's speech Areopagita to the
Parliament of England in 1644. 9 Under the Licensing Act of 1643, all
printing presses and printers were licensed and nothing could be
published without the prior approval of the State or the Church
Authorities. Milton vigorously opposed it on the ground of freedom of the
press. His strong advocacy led to its collapse in 1695. In the U.S., the first
encounter with a law imposing a prior restraint is in Near v. Minnesota. 10
Here, the majority voided the law authorizing the permanent enjoining of
future violations by any newspaper or periodical if found to have
published or circulated an "obscene, lewd and lascivious" or "malicious,
scandalous and defamatory" issue. While the dissenters maintained that
the injunction constituted no prior restraint, inasmuch as that doctrine
applied to prohibitions of publication without advance approval of an
executive official, the majority deemed the difference of no consequence,
since in order to avoid a contempt citation, the newspaper would have to
clear future publications in advance with the judge. In other similar cases,
the doctrine of prior restraint was frowned upon by the U.S. Court as it
struck down loosely drawn statutes and ordinances requiring licenses to
hold meetings and parades and to distribute literature, with uncontrolled
discretion in the licensor whether or not to issue them, and as it voided
other restrictions on First Amendment rights. 11 Then there came the
doctrine that prior licensing or permit systems were held to be
constitutionally valid so long as the discretion of the issuing official is
limited to questions of times, places and manners. 12 And in New York
Times Company v. United States, 13 the same Court, applying the doctrine of
prior restraint from Near, considered the claims that the publication of the
Pentagon Papers concerning the Vietnam War would interfere with
foreign policy and prolong the war too speculative. It held that such claim
could not overcome the strong presumption against prior restraints.
Clearly, content-based prior restraint is highly abhorred in every
jurisdiction.
Another objectionable portion of the NTC's Press Release is the
warning that it will not hesitate "to apply with full force the provisions
of the Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators. This is a threat of
a subsequent punishment, an equally abhorred form of censorship. This
should not also be countenanced. It must be stressed that the evils to be
prevented are not the censorship of the press merely, but any action of
the government by means of which it might prevent such free and
general discussion of public matters as seems absolutely essential to
prepare the people for an intelligent exercise of their rights as
citizens. 14 There is logic in the proposition that the liberty of the press
will be rendered a "mockery and a delusion" if, while every man is at
liberty to publish what he pleases, the public authorities might
nevertheless punish him for harmless publications. In this regard, the fear
of subsequent punishment has the same effect as that of prior restraint.
It being settled that the NTC's Press Release constitutes censorship
of broadcast media, the next issue is whether such censorship is justified.
II
The Issuance of the Press Release
Constitutes an Unjustified Form of Censorship
Settled is the doctrine that any system of prior restraint of
expression comes to this Court bearing a presumption against its
constitutional validity. 15 The Government thus carries a heavy burden of
showing justification for the enforcement of such a restraint. 16
Various tests have been made to fix a standard by which to
determine what degree of evil is sufficiently substantial to justify a resort
to abridgment of the freedom of expression as a means of protection and
how clear and imminent and likely the danger is. Among these tests are
the Clear and Present Danger, Balancing, Dangerous Tendency, Vagueness,
Overbreadth, and Least Restrictive Means.
Philippine jurisprudence shows that we have generally adhered to
the clear and present danger test. Chief Justice Puno, in his ponencia, has
concluded that the Government has not hurdled this test. He cited four (4)
reasons to which I fully concur.
The justification advanced by the NTC in issuing the Press Release is
that "the taped Conversations have not been duly authenticated nor
could it be said at this time that the tape contains an accurate and
truthful representation of what was recorded therein" and that "its
continuous airing or broadcast is a continuing violation of the Anti-
Wiretapping Law."
 To prevent the airing of the Garci Tapes on the premise that their
contents may or may not be true is not a valid reason for its suppression.
In New York Times v. Sullivan, 17 Justice William Brennan, Jr. states that the
authoritative interpretation of the First Amendment guarantees have
consistently refused to recognize an exception for any test of truth
whether administered by judges, jurists, or administrative officials and
especially not one that puts the burden of proving truth on the speaker.
He stressed that "the constitutional protection does not turn upon
the truth, popularity, or social utility of the ideas and belief which
are offered." Moreover, the fact that the tapes were obtained through
violation of the Anti-Wiretapping Law does not make the broadcast media
privy to the crime. It must be stressed that it was a government
official who initially released the Garci Tapes, not the media.
In view of the presence of various competing interests, I believe the
present case must also be calibrated using the balancing test. In
American Communication Association v. Douds, 18 it is held that "when a
particular conduct is regulated in the interest of public order, and
the regulation results in an indirect, conditional, partial abridgement
of speech, the duty of the courts is to determine which of these two
conflicting interests demand the greater protection under the
circumstances presented. In the present case, perched at the one hand
of the scale is the government's interest to maintain public order, while on
the other hand is the interest of the public to know the truth about the
last national election and to be fully informed. Which of these interests
should be advanced? I believe it should be that of the people.
The right of the people to know matters pertaining to the
integrity of the election process is of paramount importance. It
cannot be sideswiped by the mere speculation that a public disturbance
will ensue. Election is a sacred instrument of democracy. Through it,
we choose the people who will govern us. We entrust to them our
businesses, our welfare, our children, our lives. Certainly, each one of
us is entitled to know how it was conducted. What could be more
disheartening than to learn that there exists a tape containing
conversations that compromised the integrity of the election process. The
doubt will forever hang over our heads, doubting whether those who sit in
government are legitimate officials. In matters such as these, leaving the
people in darkness is not an alternative course. People ought to know the
truth. Yes, the airing of the Garci Tapes may have serious impact, but this
is not a valid basis for suppressing it. As Justice Douglas explained in his
concurring opinion in the New York Times, "the dominant purpose of the
First Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing information. A debate of
large proportions goes in the nation over our posture in Vietnam.
Open debate and discussion of public issues are vital to our national
health."
More than ever, now is the time to uphold the right of the Filipinos
to information on matters of public concern. As Chief Justice Hughes
observed: "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 liberty by criminal alliances and official neglect, emphasize 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 less necessary the immunity of
the press from previous restraint in dealing with official misconduct." 19
Open discussions of our political leaders, as well as their actions, are
essential for us to make informed judgments. Through these, we can
influence our government's actions and policies. Indeed, no government
can be responsive to its citizens who have refrained from voicing
their discontent because of fear of retribution.
III
A free press is an indispensable component of
a democratic and free society.
Burke once called the Press the Fourth Estate in the Parliament. This
is because its ability to influence public opinion made it an important
source in the governance of a nation. It is considered one of the
foundations of a democratic society. One sign of its importance is that
when a tyrant takes over a country, his first act is to muzzle the press.
Courts should therefore be wary in resolving cases that has
 implication on the freedom of the press to the end that the freedom
will never be curtailed absent a recognized and valid justification.
In fine let it be said that the struggle for freedom of expression is as
ancient as the history of censorship. From the ancient time when Socrates
was poisoned for his unorthodox views to the more recent Martial Law
Regime in our country, the lesson learned is that censorship is the biggest
obstacle to human progress. Let us not repeat our sad history. Let us not
be victims again now and in the future.
WHEREFORE, I vote to CONCUR with the majority opinion.

CARPIO, J., concurring:

The Case
This is a petition for the writs of certiorari and prohibition to set
aside "acts, issuances, and orders" of respondents Secretary of Justice
Raul M. Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC), particularly an NTC "press
release" dated 11 June 2005, warning radio and television stations against
airing taped conversations allegedly between President Gloria Macapagal-
Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio
Garcillano (Garcillano) 1 under pain of suspension or revocation of their
airwave licenses.
The Facts
On 24 June 2004, Congress, acting as national board of canvassers,
proclaimed President Arroyo winner in the 2004 presidential elections. 2
President Arroyo received a total of 12,905,808 votes, 1,123,576 more
than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6
June 2005, the radio station dzMM aired the Garci Tapes where the parties
to the conversation discussed "rigging" the results of the 2004 elections to
favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio
Bunye (Bunye) held a press conference in Malacaang Palace, where he
played before the presidential press corps two compact disc recordings of
conversations between a woman and a man. Bunye identified the woman
in both recordings as President Arroyo but claimed that the contents of
the second compact disc had been "spliced" to make it appear that
President Arroyo was talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the
woman's voice in the compact discs was not President Arroyo's after all. 3
Meanwhile, other individuals went public, claiming possession of the
genuine copy of the Garci Tapes. 4 Respondent Gonzalez ordered the
National Bureau of Investigation to investigate media organizations which
aired the Garci Tapes for possible violation of Republic Act No. 4200 or the
Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio and
television stations that airing the Garci Tapes is a "cause for the
suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them. 5 On 14 June 2005, NTC officers met with
officers of the broadcasters group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a
joint press statement expressing commitment to press freedom. 6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as
citizen, filed this petition to nullify the "acts, issuances, and orders" of the
NTC and respondent Gonzalez (respondents) on the following grounds: (1)
respondents' conduct violated freedom of expression and the right of the
people to information on matters of public concern under Section 7,
Article III of the Constitution, and (2) the NTC acted ultra vires when it
warned radio and television stations against airing the Garci Tapes.
In their Comment to the petition, respondents raised threshold
objections that (1) petitioner has no standing to litigate and (2) the petition
fails to meet the case or controversy requirement in constitutional
adjudication. On the merits, respondents claim that (1) the NTC's press
release of 11 June 2005 is a mere "fair warning," not censorship,
cautioning radio and television networks on the lack of authentication of
the Garci Tapes and of the consequences of airing false or fraudulent
material, and (2) the NTC did not act ultra vires in issuing the warning to
radio and television stations.
In his Reply, petitioner belied respondents' claim on his lack of
standing to litigate, contending that his status as a citizen asserting the
enforcement of a public right vested him with sufficient interest to
maintain this suit. Petitioner also contests respondents' claim that the
NTC press release of 11 June 2005 is a mere warning as it already
prejudged the Garci Tapes as inauthentic and violative of the Anti-
Wiretapping Law, making it a "cleverly disguised . . . gag order."
ISSUE
The principal issue for resolution is whether the NTC warning
embodied in the press release of 11 June 2005 constitutes an
impermissible prior restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning,
embodied in its press release dated 11 June 2005, an unconstitutional
prior restraint on protected expression, and (3) enjoin the NTC from
enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves
freedom of expression, as in the present case, any citizen has the right to
bring suit to question the constitutionality of a government action in
violation of freedom of expression, whether or not the government action
is directed at such citizen. The government action may chill into silence
those to whom the action is directed. Any citizen must be allowed to take
up the cudgels for those who have been cowed into inaction because
freedom of expression is a vital public right that must be defended by
everyone and anyone.
Freedom of expression, being fundamental to the preservation of a
free, open and democratic society, is of transcendental importance that
must be defended by every patriotic citizen at the earliest opportunity. We
have held that any concerned citizen has standing to raise an issue of
transcendental importance to the nation, 7 and petitioner in this present
petition raises such issue.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent
Punishment
Freedom of expression is the foundation of a free, open and
democratic society. Freedom of expression is an indispensable condition 8
to the exercise of almost all other civil and political rights. No society can
remain free, open and democratic without freedom of expression.
Freedom of expression guarantees full, spirited, and even contentious
discussion of all social, economic and political issues. To survive, a free
and democratic society must zealously safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses
of public officials. Freedom of expression allows citizens to make
informed choices of candidates for public office. Freedom of expression
crystallizes important public policy issues, and allows citizens to
participate in the discussion and resolution of such issues. Freedom of
expression allows the competition of ideas, the clash of claims and
counterclaims, from which the truth will likely emerge. Freedom of
expression allows the airing of social grievances, mitigating sudden
eruptions of violence from marginalized groups who otherwise would not
be heard by government. Freedom of expression provides a civilized way
of engagement among political, ideological, religious or ethnic opponents
for if one cannot use his tongue to argue, he might use his fist instead.
Freedom of expression is the freedom to disseminate ideas and
beliefs, whether competing, conforming or otherwise. It is the freedom to
express to others what one likes or dislikes, as it is the freedom of others
to express to one and all what they favor or disfavor. It is the free
expression for the ideas we love, as well as the free expression for the
ideas we hate. 9 Indeed, the function of freedom of expression is to stir
disputes:
[I]t may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of an idea. 10

Section 4, Article III of the Constitution prohibits the enactment of

any law curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of
expression, or the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint or
censorship because the Constitution commands that freedom of
expression shall not be abridged. Over time, however, courts have carved
out narrow and well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint,
apply in this jurisdiction to only four categories of expression, namely:
pornography, 11 false or misleading advertisement, 12 advocacy of
imminent lawless action, 13 and danger to national security. 14 All other
expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, "[T]he First
Amendment (Free Speech Clause), subject only to narrow and well
understood exceptions, does not countenance governmental control over
the content of messages expressed by private individuals." 15
Expression not subject to prior restraint is protected expression or
high-value expression. Any content-based prior restraint on protected
expression is unconstitutional without exception. A protected expression
means what it says it is absolutely protected from censorship. Thus,
there can be no prior restraint on public debates on the amendment or
repeal of existing laws, on the ratification of treaties, on the imposition of
new tax measures, or on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is
aimed at the message or idea of the expression. Courts will subject to
strict scrutiny content-based restraint. If the content-based prior restraint
is directed at protected expression, courts will strike down the restraint as
unconstitutional because there can be no content-based prior restraint on
protected expression. The analysis thus turns on whether the prior
restraint is content-based, and if so, whether such restraint is directed at
protected expression, that is, those not falling under any of the
recognized categories of unprotected expression.
If the prior restraint is not aimed at the message or idea of the
expression, it is content-neutral even if it burdens expression. A content-
neutral restraint is a restraint which regulates the time, place or manner
of the expression in public places 16 without any restraint on the content
of the expression. Courts will subject content-neutral restraints to
intermediate scrutiny. 17
 An example of a content-neutral restraint is a permit specifying the
date, time and route of a rally passing through busy public streets. A
content-neutral prior restraint on protected expression which does not
touch on the content of the expression enjoys the presumption of validity
and is thus enforceable subject to appeal to the courts. 18 Courts will
uphold time, place or manner restraints if they are content-neutral,
narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of expression. 19
In content-neutral prior restraint on protected speech, there should
be no prior restraint on the content of the expression itself. Thus,
submission of movies or pre-taped television programs to a government
review board is constitutional only if the review is for classification and not
for censoring any part of the content of the submitted materials. 20
However, failure to submit such materials to the review board may be
penalized without regard to the content of the materials. 21 The review
board has no power to reject the airing of the submitted materials. The
review board's power is only to classify the materials, whether for general
patronage, for adults only, or for some other classification. The power to
classify expressions applies only to movies and pre-taped television
programs 22 but not to live television programs. Any classification of live
television programs necessarily entails prior restraint on expression.
Expression that may be subject to prior restraint is unprotected
expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based 23 since the restraint is imposed
because of the content itself. In this jurisdiction, there are currently only
four categories of unprotected expression that may be subject to prior
restraint. This Court recognized false or misleading advertisement as
unprotected expression only in October 2007. 24
Only unprotected expression may be subject to prior restraint.
However, any such prior restraint on unprotected expression must hurdle
a high barrier. First, such prior restraint is presumed unconstitutional.
Second, the government bears a heavy burden of proving the
constitutionality of the prior restraint. 25
Courts will subject to strict scrutiny any government action imposing
prior restraint on unprotected expression. 26 The government action will
be sustained if there is a compelling State interest, and prior restraint is
necessary to protect such State interest. In such a case, the prior restraint
shall be narrowly drawn only to the extent necessary to protect or
attain the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression
than subsequent punishment. Although subsequent punishment also
deters expression, still the ideas are disseminated to the public. Prior
restraint prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such
expression may be subject to subsequent punishment, 27 either civilly or
criminally. Thus, the publication of election surveys cannot be subject to
prior restraint, 28 but an aggrieved person can sue for redress of injury if
the survey turns out to be fabricated. Also, while Article 201 (2) (b) (3) of
the Revised Penal Code punishing "shows which offend any race or
religion" cannot be used to justify prior restraint on religious expression,
this provision can be invoked to justify subsequent punishment of the
perpetrator of such offensive shows. 29
Similarly, if the unprotected expression does not warrant prior
restraint, the same expression may still be subject to subsequent
punishment, civilly or criminally. Libel falls under this class of unprotected
expression. However, if the expression cannot be subject to the lesser
restriction of subsequent punishment, logically it cannot also be subject to
the more severe restriction of prior restraint. Thus, since profane
language or "hate speech" against a religious minority is not subject to
subsequent punishment in this jurisdiction, 30 such expression cannot be
subject to prior restraint.
If the unprotected expression warrants prior restraint, necessarily
the same expression is subject to subsequent punishment. There must be
a law punishing criminally the unprotected expression before prior
restraint on such expression can be justified. The legislature must punish
the unprotected expression because it creates a substantive evil that the
State must prevent. Otherwise, there will be no legal basis for imposing a
prior restraint on such expression.
 The prevailing test in this jurisdiction to determine the
constitutionality of government action imposing prior restraint on three
categories of unprotected expression pornography, 31 advocacy of
imminent lawless action, and danger to national security is the clear
and present danger test. 32 The expression restrained must present a
clear and present danger of bringing about a substantive evil that the
State has a right and duty to prevent, and such danger must be grave and
imminent. 33
Prior restraint on unprotected expression takes many forms it
may be a law, administrative regulation, or impermissible pressures like
threats of revoking licenses or withholding of benefits. 34 The
impermissible pressures need not be embodied in a government agency
regulation, but may emanate from policies, advisories or conduct of
officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC
that the airing or broadcasting of the Garci Tapes by radio and television
stations is a "cause for the suspension, revocation and/or cancellation of the
licenses or authorizations" issued to radio and television stations. The NTC
warning, embodied in a press release, relies on two grounds. First, the
airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to radio and TV stations." Second, the Garci Tapes have
not been authenticated, and subsequent investigation may establish that
the tapes contain false information or willful misrepresentation.
Specifically, the NTC press release contains the following categorical
warning:
Taking into consideration the country's unusual situation, and in
order not to unnecessarily aggravate the same, the NTC warns all
radio stations and television networks owners/operators that the
conditions of the authorizations and permits issued to them by
Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use its
stations for the broadcasting or telecasting of false information or
willful misrepresentation. Relative thereto, it has come to the
 attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic)
involve the President of the Philippines and a Commissioner of the
COMELEC regarding their supposed violation of election laws. These
personalities have admitted that the taped conversations are
product of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
(sic) it is the position of the Commission that the continuous
airing or broadcast of the said taped conversations by radio and
television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority
and/or Certificate of Authority issued to these radio and
television stations. If it has been (sic) subsequently established
that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation, the concerned radio
and television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations
issued to the said companies. (Boldfacing and underscoring
supplied)

The NTC does not claim that the public airing of the Garci Tapes
constitutes unprotected expression that may be subject to prior restraint.
The NTC does not specify what substantive evil the State seeks to prevent
in imposing prior restraint on the airing of the Garci Tapes. The NTC does
not claim that the public airing of the Garci Tapes constitutes a clear and
present danger of a substantive evil, of grave and imminent character,
that the State has a right and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that
the airing of the Garci Tapes constitutes a continuing violation of the Anti-
Wiretapping Law. At the time of issuance of the NTC press release, and
even up to now, the parties to the conversations in the Garci Tapes have
not complained that the wire-tapping was without their consent, an
essential element for violation of the Anti-Wiretapping Law. 35 It was even
the Office of the President, through the Press Secretary, that played and
released to media the Garci Tapes containing the alleged "spliced"
conversation between President Arroyo and Commissioner Garcillano.
There is also the issue of whether a wireless cellular phone conversation is
covered by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the
airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping
Law. The radio and television stations were not even given an opportunity
to be heard by the NTC. The NTC did not observe basic due process as
mandated in Ang Tibay v. Court of Industrial Relations. 36
The NTC claims that the Garci Tapes, "after a prosecution or the
appropriate investigation," may constitute "false information and/or willful
misrepresentation." However, the NTC does not claim that such possible
false information or willful misrepresentation constitutes misleading
commercial advertisement. In the United States, false or deceptive
commercial speech is categorized as unprotected expression that may be
subject to prior restraint. Recently, this Court upheld the constitutionality
of Section 6 of the Milk Code requiring the submission to a government
screening committee of advertising materials for infant formula milk to
prevent false or deceptive claims to the public. 37 There is, however, no
claim here by respondents that the Garci Tapes constitute false or
misleading commercial advertisement.
The NTC concedes that the Garci Tapes have not been
authenticated as accurate or truthful. The NTC also concedes that only
"after a prosecution or appropriate investigation" can it be established
that the Garci Tapes constitute "false information and/or willful
misrepresentation." Clearly, the NTC admits that it does not even know if
the Garci Tapes contain false information or willful misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a content-
based prior restraint because it is directed at the message of the Garci
Tapes. The NTC's claim that the Garci Tapes might contain "false
information and/or willful misrepresentation," and thus should not be
publicly aired, is an admission that the restraint is content-based.
5. Nature of Expression in the Present Case
 The public airing of the Garci Tapes is a protected expression
because it does not fall under any of the four existing categories of
unprotected expression recognized in this jurisdiction. The airing of the
Garci Tapes is essentially a political expression because it exposes that a
presidential candidate had allegedly improper conversations with a
COMELEC Commissioner right after the close of voting in the last
presidential elections.
Obviously, the content of the Garci Tapes affects gravely the
sanctity of the ballot. Public discussion on the sanctity of the ballot is
indisputably a protected expression that cannot be subject to prior
restraint. Public discussion on the credibility of the electoral process is
one of the highest political expressions of any electorate, and thus
deserves the utmost protection. If ever there is a hierarchy of protected
expressions, political expression would occupy the highest rank, 38 and
among different kinds of political expression, the subject of fair and
honest elections would be at the top. In any event, public discussion on all
political issues should always remain uninhibited, robust and wide open.
The rule, which recognizes no exception, is that there can be no
content-based prior restraint on protected expression. On this ground
alone, the NTC press release is unconstitutional. Of course, if the courts
determine that the subject matter of a wiretapping, illegal or not,
endangers the security of the State, the public airing of the tape becomes
unprotected expression that may be subject to prior restraint. However,
there is no claim here by respondents that the subject matter of the Garci
Tapes involves national security and publicly airing the tapes would
endanger the security of the State. 39
The alleged violation of the Anti-Wiretapping Law is not in itself a
ground to impose a prior restraint on the airing of the Garci Tapes
because the Constitution expressly prohibits the enactment of any law,
and that includes anti-wiretapping laws, curtailing freedom of expression.
40 The only exceptions to this rule are the four recognized categories of
unprotected expression. However, the content of the Garci Tapes does
not fall under any of these categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy
because the content of the Garci Tapes is a matter of important public
concern. The Constitution guarantees the people's right to information on
matters of public concern. 41 The remedy of any person aggrieved by the
public airing of the Garci Tapes is to file a complaint for violation of the
Anti-Wiretapping Law after the commission of the crime. Subsequent
punishment, absent a lawful defense, is the remedy available in case of
violation of the Anti-Wiretapping Law.
The present case involves a prior restraint on protected expression.
Prior restraint on protected expression differs significantly from
subsequent punishment of protected expression. While there can be no
prior restraint on protected expression, there can be subsequent
punishment for protected expression under libel, tort or other laws. In the
present case, the NTC action seeks prior restraint on the airing of the
Garci Tapes, not punishment of personnel of radio and television stations
for actual violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on
expression. The charter of the NTC does not vest NTC with any content-
based censorship power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected
expression that can never be subject to prior restraint. However, even
assuming for the sake of argument that the airing of the Garci Tapes
constitutes unprotected expression, only the courts have the power to
adjudicate on the factual and legal issue of whether the airing of the Garci
Tapes presents a clear and present danger of bringing about a
substantive evil that the State has a right and duty to prevent, so as to
justify the prior restraint.
Any order imposing prior restraint on unprotected expression
requires prior adjudication by the courts on whether the prior restraint is
constitutional. This is a necessary consequence from the presumption of
invalidity of any prior restraint on unprotected expression. Unless ruled
by the courts as a valid prior restraint, government agencies cannot
implement outright such prior restraint because such restraint is
presumed unconstitutional at inception.
 As an agency that allocates frequencies or airwaves, the NTC may
regulate the bandwidth position, transmitter wattage, and location of
radio and television stations, but not the content of the broadcasts. Such
content-neutral prior restraint may make operating radio and television
stations more costly. However, such content-neutral restraint does not
restrict the content of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity
Assuming that the airing of the Garci Tapes constitutes unprotected
expression, the NTC action imposing prior restraint on the airing is
presumed unconstitutional. The Government bears a heavy burden to
prove that the NTC action is constitutional. The Government has failed to
meet this burden.
In their Comment, respondents did not invoke any compelling State
interest to impose prior restraint on the public airing of the Garci Tapes.
The respondents claim that they merely "fairly warned" radio and
television stations to observe the Anti-Wiretapping Law and pertinent NTC
circulars on program standards. Respondents have not explained how
and why the observance by radio and television stations of the Anti-
Wiretapping Law and pertinent NTC circulars constitutes a compelling
State interest justifying prior restraint on the public airing of the Garci
Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any
criminal statute, can always be subject to criminal prosecution after the
violation is committed. Respondents have not explained why there is a
need in the present case to impose prior restraint just to prevent a
possible future violation of the Anti-Wiretapping Law. Respondents have
not explained how the violation of the Anti-Wiretapping Law, or of the
pertinent NTC circulars, can incite imminent lawless behavior or endanger
the security of the State. To allow such restraint is to allow prior restraint
on all future broadcasts that may possibly violate any of the existing
criminal statutes. That would be the dawn of sweeping and endless
censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
 The NTC press release threatening to suspend or cancel the airwave
permits of radio and television stations constitutes impermissible
pressure amounting to prior restraint on protected expression. Whether
the threat is made in an order, regulation, advisory or press release, the
chilling effect is the same: the threat freezes radio and television stations
into deafening silence. Radio and television stations that have invested
substantial sums in capital equipment and market development suddenly
face suspension or cancellation of their permits. The NTC threat is thus
real and potent.
In Burgos v. Chief of Staff, 42 this Court ruled that the closure of the
We Forum newspapers under a general warrant "is in the nature of a
previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law." The NTC warning to radio and
television stations not to air the Garci Tapes or else their permits will be
suspended or cancelled has the same effect a prior restraint on
constitutionally protected expression.
In the recent case of David v. Macapagal-Arroyo, 43 this Court
declared unconstitutional government threats to close down mass media
establishments that refused to comply with government prescribed
"standards" on news reporting following the declaration of a State of
National Emergency by President Arroyo on 24 February 2006. The Court
described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a 'strong presence,' to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards and the standards
are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged
television and radio networks to "cooperate" with the
government for the duration of the state of national emergency.
He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
 media coverage during times when the national security is
threatened. 44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible

restraint on freedom of expression. The Court ruled that "the imposition
of standards on media or any form of prior restraint on the press, as well
as the warrantless search of the Tribune offices and whimsical seizure of
its articles for publication and other materials, are declared
UNCONSTITUTIONAL." 45
The history of press freedom has been a constant struggle against
the censor whose weapon is the suspension or cancellation of licenses to
publish or broadcast. The NTC warning resurrects the weapon of the
censor. The NTC warning is a classic form of prior restraint on protected
expression, which in the words of Near v. Minnesota is "the essence of
censorship." 46 Long before the American Declaration of Independence in
1776, William Blackstone had already written in his Commentaries on the
Law of England, "The liberty of the press . . . consists in laying no previous
restraints upon publication . . .." 47
Although couched in a press release and not in an administrative
regulation, the NTC threat to suspend or cancel permits remains real and
effective, for without airwaves or frequencies, radio and television stations
will fall silent and die. The NTC press release does not seek to advance a
legitimate regulatory objective, but to suppress through coercion
information on a matter of vital public concern.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior
restraint on protected expression. There can be no content-based prior
restraint on protected expression. This rule has no exception.
I therefore vote to (1) grant the petition, (2) declare the NTC
warning, embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3) enjoin
the NTC from enforcing the same.

AZCUNA, J., concurring:

 I vote to GRANT the petition on the ground that the challenged NTC
and DOJ warnings violate Sec. 10, Art XVI of the Constitution which states:
Sec. 10. The State shall be provide the policy environment for the full
development of Filipino capability and the emergency of
communication structures suitable to the needs and aspirations of
the nations and the balanced flow of information into, out of, and
across the country, in accordance with a policy that respects the
freedom of speech and of the press.

This provision was precisely crafted to meet the needs and

opportunities of the emerging new pathways of communications, from
radio and tv broadcast to the flow of digital informations via cables,
satellites and the internet.
The purpose of this new statement of directed State policy is to hold
the State responsible for a policy environment that provides for (1) the full
development of Filipino capability, (2) the emergence of communication
structures suitable to the needs and aspirations of the nation and the
balanced flow of information, and (3) respect for the freedom of speech
and of the press.
The regulatory warnings involved in this case work against a
balanced flow of information in our communication structures and do so
without respecting freedom of speech by casting a chilling effect on the
media. This is definitely not the policy environment contemplated by the
Constitution.

CHICO-NAZARIO, J., dissenting:

With all due respect, I vote to dismiss the present Petition for the
simple reason that the assailed press statements made by the National
Telecommunications Commission (NTC) and the Secretary of Justice Raul
Gonzales (Gonzales) do not constitute prior restraint that impair freedom
of speech. There being no restraint on free speech, then there is even no
need to apply any of the tests, i.e., the dangerous tendency doctrine, the
balancing of interests test, and the clear and present danger rule, to
determine whether such restraint is valid.
 The assailed press statements must be understood and interpreted
in the proper perspective. The statements must be read in their entirety,
and interpreted in the context in which they were made.
A scrutiny of the "fair warning" issued by the NTC on 11 June 2005
reveals that it is nothing more than that, a fair warning, calling for
sobriety, care, and circumspection in the news reporting and current
affairs coverage by radio and television stations. It reminded the owners
and operators of the radio stations and television networks of the
provisions in NTC Memorandum Circulars No. 11-12-85 and 22-89, which
are also stated in the authorizations and permits granted to them by the
government, that they shall not use their stations for the broadcasting or
telecasting of false information or willful misrepresentation. It must be
emphasized that the NTC is merely reiterating the very same prohibition
already contained in its previous circulars, and even in the
authorizations and permits of radio and television stations. The reason
thus escapes me as to why said prohibition, when it was stated in the NTC
Memorandum Circulars and in the authorizations and permits, was valid
and acceptable, but when it was reiterated in a mere press statement
released by the NTC, had become a violation of the Constitution as a prior
restraint on free speech.
In the midst of the media frenzy that surrounded the Garci tapes,
the NTC, as the administrative body tasked with the regulation of radio
and television broadcasting companies, cautioned against the airing of the
unauthenticated tapes. The warning of the NTC was expressed in the
following manner, "[i]f it has been (sic) subsequently established that the
said tapes are false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are hereby
warned that their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the said
companies." According to the foregoing sentence, before any penalty
could be imposed on a radio or television company for airing the
Garci tapes, the tapes must have been established to be false and
fraudulent after prosecution and investigation. The warning is nothing
new for it only verbalizes and applies to the particular situation at hand an
existing prohibition against spreading false information or willful
misrepresentation by broadcast companies. In fact, even without the
contested "fair warning" issued by the NTC, broadcast companies could
still face penalties if, after investigation and prosecution, the Garci tapes
are established to be false and fraudulent, and the airing thereof was
done to purposely spread false information or misrepresentation, in
violation of the prohibition stated in the companies' authorizations and
permits, as well as the pertinent NTC Memorandum Circulars.
Moreover, we should not lose sight of the fact that just three days
after its issuance of its "fair warning," or on 14 June 2005, the NTC again
released another press statement, this time, jointly made with the
Kapisanan ng Broadcasters sa Pilipinas (KBP), to the effect that:
JOINT PRESS STATEMENT: NTC AND KBP
CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND
OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION
CODES.
NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS
AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC
CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN
COMMITTED TO THE EXERCISE (sic) PRESS FREEDOM WITH
HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT
OF FAIRNESS AND HONESTY.
NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A
RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC
FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR
RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION
OR FREE EXPRESSION OF VIEWS.
WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS
FREEDOM IS DONE RESPONSIBLY.
KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL
OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS
PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES,
NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE
INCITING TO SEDITION AND/OR REBELLION.
 THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR
WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT
OF NEWS OR COMMENTARIES.
THE SUPPOSED WIRETAPPED (sic) TAPES SHOULD BE TREATED
WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE
CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO
VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL
CONTENT OF THE SAME.

The relevance of the afore-quoted press statement cannot be

downplayed. It already categorically settles what NTC meant and how the
KBP understood the 11 June 2005 NTC press statement. We cannot insist
to give a different and more sinister interpretation to the first press
statement, when the second press statement had already particularly
defined the context by which it should be read.
Neither should we give much merit to the statements made by
Secretary Gonzales to the media that he had already instructed the
National Bureau of Investigation (NBI) to monitor all radio stations and
television networks for possible violations of the Anti-Wiretapping Law.
Secretary Gonzales is one of media's favorite political personalities,
hounded by reporters, and featured almost daily in newspapers, radios,
and televisions, for his "quotable quotes," some of which appeared to
have been uttered spontaneously and flippantly. There was no showing
that Secretary Gonzales had actually and officially ordered the NBI to
conduct said monitoring of radio and television broadcasts, and that the
NBI acted in accordance with said order. Which leads me to my next point.
We should be judicious in giving too much weight and credence to
press statements. I believe that it would be a dangerous precedent to rule
that press statements should be deemed an official act of the
administrative agency or public official concerned. Press statements, in
general, can be easily manufactured, prone to alteration or
misinterpretation as they are being reported by the media, and may,
during some instances, have to be made on the spot without giving the
source much time to discern the ramifications of his statements. Hence,
they cannot be given the same weight and binding effect of official acts in
the form of, say, memorandum orders or circulars.
 Even if we assume arguendo that the press statements are official
issuances of the NTC and Secretary Gonzales, then the petitioner alleging
their unconstitutionality must bear the burden of proving first that the
challenged press statements did indeed constitute prior restraint, before
the presumption of invalidity of any system of prior restraint on free
speech could arise. Until and unless the petitioner satisfactorily
discharges the said burden of proof, then the press statements must
similarly enjoy the presumption of validity and constitutionality accorded
to statutes, having been issued by officials of the executive branch, a co-
equal. The NTC and Secretary Gonzales must likewise be accorded the
presumption that they issued the questioned press statements in the
regular performance of their duties as the regulatory body for the
broadcasting industry and the head of the principal law agency of the
government, respectively.
Significantly also, please allow me to observe that the purported
chilling effect of the assailed press statements was belied by the fact that
the owners and operators of radio stations and television networks, who
were supposed to feel most threatened by the same, did not find it
necessary to go to court. They should have been the ones to have felt and
attested to the purported chilling effect of said press statements. Their
silence in all this speaks for itself.
In view of the foregoing, I vote for the denial of the present petition.

NACHURA, J., dissenting:

I respectfully register my dissent to the majority opinion penned by

the esteemed Chief Justice. The assailed press releases and statements do
not constitute a prior restraint on free speech. It was not improper for the
NTC to warn the broadcast media that the airing of taped materials, if
subsequently shown to be false, would be a violation of law and of the
terms of their certificate of authority, and could lead, after appropriate
investigation, to the cancellation or revocation of their license.
The Facts
 This case arose from events that transpired a year after the 2004
national and local elections, a period marked by disquiet and unrest;
events that rocked the very foundations of the present administration.
To recall, on June 5, 2005, Press Secretary Ignacio Bunye conveyed
to reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a bugged mobile phone
conversation allegedly between the President of the Republic of the
Philippines and a high-ranking official of the Commission on Elections
(COMELEC). 1
The following day, June 6, 2005, Secretary Bunye presented and
played two compact discs (CD's) to the Malacaan Press Corps, and
explained that the first contained the wiretap, while the second, the
spliced, doctored, and altered version which would suggest that during
the 2004 National and Local Elections the President instructed the
COMELEC official to manipulate in her favor the election results. 2
Atty. Alan Paguia, former counsel of then President Joseph E.
Estrada, subsequently released, on June 7, 2005, the alleged authentic
tape recordings of the wiretap. Included, among others, in the tapes were
purported conversations of the President, First Gentleman Jose Miguel
Arroyo, COMELEC Commissioner Virgilio Garcillano, and the late Senator
Robert Barbers. 3
On June 8, 2005, respondent Secretary of the Department of Justice
(DOJ), Raul Gonzalez, informed news reporters that persons in possession
of copies of the wiretap and media outlets broadcasting, or publishing the
contents thereof, could be held liable under the Anti-Wiretapping Act
[Republic Act No. 4200]. 4 He further told newsmen, on the following day,
that he had already instructed the National Bureau of Investigation (NBI)
to monitor all radio stations and television networks for possible
violations of the said law. 5
Then, on June 10, 2005, former NBI Deputy Director Samuel Ong
presented to the media the alleged master tape recordings of the wiretap
or the so-called "mother of all tapes," and disclosed that their contents
were wiretapped by T/Sgt. Vidal Doble of the Intelligence Service of the
Armed Forces of the Philippines (ISAFP). Ong then called for the
resignation of the President. 6
On June 11, 2005, after several news reports, respondent National
Telecommunications Commission (NTC) issued the following press
release:
Contact:
Office of the Commissioner
National Telecommunications Commission
BIR Road, East Triangle, Diliman, Quezon City
Tel. 924-4048/924-4037
E-mail: commissioner@ntc.gov.ph
NTC GIVES FAIR WARNING TO RADIO AND
TELEVISION OWNERS/OPERATORS TO OBSERVE
ANTI-WIRETAPPING LAW AND PERTINENT NTC
CIRCULARS ON PROGRAM STANDARDS
In view of the unusual situation the country is in today, The (sic)
National Telecommunications Commission (NTC) calls for sobriety
among the operators and management of all radio and television
stations in the country and reminds them, especially all broadcasters,
to be careful and circumspect in the handling of news reportage,
coverages of current affairs and discussion of public issues, by
strictly adhering to the pertinent laws of the country, the current
program standards embodied in radio and television codes and the
existing circulars of the NTC.
The NTC said that now, more than ever, the profession of
broadcasting demands a high sense of responsibility and discerning
judgment of fairness and honesty at all times among broadcasters
amidst all these rumors of unrest, destabilization attempts and
controversies surrounding the alleged wiretapping of President GMA
(sic) telephone conversations.
Taking into consideration the country's unusual situation, and in
order not to unnecessarily aggravate the same, the NTC warns all
radio stations and television networks owners/operators that the
conditions of the authorizations and permits issued to them by
Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use its
stations for the broadcasting or telecasting of false information or
willful misrepresentation. Relative thereto, it has come to the
attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic)
involve the President of the Philippines and a Commissioner of the
COMELEC regarding their supposed violation of election laws. These
personalities have admitted that the taped conversations are
product of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
(sic) it is the position of the Commission that the continuous airing or
broadcast of the said taped conversations by radio and television
stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. If it has been (sic)
subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that
their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the
said companies.
In addition to the above, the Commission reiterates the pertinent
NTC circulars on program standards to be observed by radio and
television stations. NTC Memorandum Circular No. 111-12-85
explicitly states, among others, that "all radio broadcasting and
television stations shall, during any broadcast or telecast, cut off
from the air the speech, play, act or scene or other matters being
broadcast and/or telecast if the tendency thereof" is to disseminate
false information or such other willful misrepresentation, or to
propose and/or incite treason, rebellion or sedition. The foregoing
directive had been reiterated in NTC Memorandum Circular No. 22-
89 which, in addition thereto, prohibited radio, broadcasting and
television stations from using their stations to broadcast or telecast
any speech, language or scene disseminating false information or
 willful misrepresentation, or inciting, encouraging or assisting in
subversive or treasonable acts.
The Commission will not hesitate, after observing the requirements
of due process, to apply with full force the provisions of the said
Circulars and their accompanying sanctions on erring radio and
television stations and their owners/operators. 7

On June 14, 2005, respondent NTC held a dialogue with the Officers
and Board of Directors of the Kapisanan ng mga Broadcasters sa Pilipinas
(KBP) to clarify the said press release. As a result, the NTC and the KBP
issued a joint press release which reads: 8
JOINT PRESS STATEMENT: NTC AND KBP
CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND
OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION
CODES.
NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS
AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC
CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN
COMMITTED TO THE EXERCISE (SIC) PRESS FREEDOM WITH
HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT
OF FAIRNESS AND HONESTY.
NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A
RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC
FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR
RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION
OR FREE EXPRESSION OF VIEWS.
WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS
FREEDOM IS DONE RESPONSIBLY.
KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL
OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS
PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES,
NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE
INCITING TO SEDITION AND/OR REBELLION.
THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR
WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT
OF NEWS OR COMMENTARIES.
 THE SUPPOSED WIRETAPPED (SIC) TAPES SHOULD BE TREATED
WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE
CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO
VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL
CONTENT OF THE SAME. 9

On June 21, 2005, petitioner Francisco Chavez, a Filipino citizen,

taxpayer and law practitioner, instituted the instant Rule 65 Petition 10 for
certiorari and prohibition with a prayer for the issuance of a temporary
restraining order on the following grounds:
RESPONDENTS COMMITTED BLATANT VIOLATIONS OF THE
FREEDOM OF EXPRESSION AND OF THE PRESS AND THE RIGHT OF
THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN
ENSHRINED IN ARTICLE III, SECTIONS 4 AND 7 OF THE 1987
CONSTITUTION.
RESPONDENT NTC ACTED BEYOND ITS POWERS AS A REGULATORY
BODY UNDER EXECUTIVE ORDER 546 AND REPUBLIC ACT NO. 7925
WHEN IT WARNED RADIO BROADCAST AND TELEVISION STATIONS
WITH DIRE CONSEQUENCES IF THEY CONTINUED TO AIR CONTENTS
OF THE CONTROVERSIAL TAPES OF THE PRESIDENT'S
CONVERSATION. 11

In their Comment 12 to the petition, the respondents, through the

Office of the Solicitor General (OSG), countered that: (1) the petitioner had
no legal standing to file, and had no clear case or cause of action to
support, the instant petition as to warrant judicial review; 13 (2) the
respondents did not violate petitioner's and/or the public's fundamental
liberties of speech, of expression and of the press, and their right to
information on matters of public concern; 14 and (3) the respondent NTC
did not commit any grave abuse of discretion amounting to lack or excess
of jurisdiction when it "fairly warned" radio and television
owners/operators to observe the Anti-Wiretapping Law and pertinent NTC
circulars on program standards. 15

The Issues
For the resolution, therefore, of the Court are the following issues:
(1) whether or not petitioner has locus standi; (2) whether or not there
exists an actual case or controversy ripe for judicial review; and (3)
whether or not the respondents gravely abused their discretion to
warrant remedial action from the Court.
On the Procedural Issues
Petitioner has locus standi
Petitioner has standing to file the instant petition. The test is
whether the party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions. 16 When suing as a citizen,
the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the
statute or act complained of. 17 When the issue concerns a public right, it
is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws. 18
In the case at bench, petitioner Chavez justifies his standing by
alleging that the petition involves the enforcement of the constitutional
rights of freedom of expression and of the press, and to information on
matters of public concern. 19 As a citizen of the Republic and as a
taxpayer, petitioner has already satisfied the requisite personal stake in
the outcome of the controversy. In any case, the Court has discretion to
relax the procedural technicality on locus standi, given the liberal attitude
it has shown in a number of prior cases, climaxing in David v. Macapagal-
Arroyo. 20
The main issues have been mooted, but the case
should nonetheless be resolved by the Court
The exercise by this Court of the power of judicial inquiry is limited
to the determination of actual cases and controversies. 21 An actual case
or controversy means an existing conflict that is appropriate or ripe for
judicial determination, one that is not conjectural or anticipatory,
otherwise the decision of the court will amount to an advisory opinion.
The power does not extend to hypothetical questions since any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. 22 Neither will the Court
determine a moot question in a case in which no practical relief can be
granted. Indeed, it is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any
practical legal effect or, in the nature of things, cannot be enforced. 23
In the instant case, it is readily observable that the subsequent joint
statement of the respondent NTC and the Officers and Board of Directors
of the KBP after their June 14, 2005 dialogue not only substantially
diminished 24 but, in fact, obliterated the effects of the earlier press
warnings, thus rendering the case moot and academic. Notably, the joint
press statement acknowledged that "NTC did not issue any memorandum
circular or order constituting a restraint of press freedom or censorship."
A case becomes moot when its purpose has become stale. 25
Be that as it may, the Court should discuss and resolve the
fundamental issues raised herein, in observance of the rule that courts
shall decide a question otherwise moot and academic if it is capable of
repetition yet evasive of review. 26
The Dissent
The assailed press statement does not infringe
on the constitutional right to free expression
Petitioner assails the constitutionality of respondents' press release
and statements warning radio stations and television networks of the
possible cancellation of their licenses and of potential criminal
prosecution that they may face should they broadcast or publish the
contents of the tapes. Petitioner contends that the assailed press release
and statements infringe on the freedom of expression and of the press.
I do not agree, for the following reasons:
1. The issuance of the press release was a valid exercise
of the NTC's regulatory authority over broadcast media.
Admittedly, freedom of expression enjoys an exalted place in the
hierarchy of constitutional rights. But it is also a settled principle, growing
out of the nature of well-ordered civil societies that the exercise of the
right is not absolute for it may be so regulated that it shall not be injurious
to the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. 27 Consistent with this principle, the
exercise of the freedom may be the subject of reasonable government
regulation.
The broadcast media are no exception. In fact, in Federal
Communications Commission (FCC) v. League of Women Voters in America, 28
it was held that
(W)e have long recognized that Congress, acting pursuant to the
Commerce Clause, has power to regulate the use of this scarce and
valuable national resource. The distinctive feature of Congress'
efforts in this area has been to ensure through the regulatory
oversight of the FCC that only those who satisfy the "public interest,
convenience and necessity" are granted a license to use radio and
television broadcast frequencies.

In the Philippines, it is the respondent NTC that has regulatory

powers over telecommunications networks. In Republic Act No. 7925, 29
the NTC is denominated as its principal administrator, and as such shall
take the necessary measures to implement the policies and objectives set
forth in the Act. Under Executive Order 546, 30 the NTC is mandated,
among others, to establish and prescribe rules, regulations, standards and
specifications in all cases related to the issued Certificate of Public
Convenience, promulgate rules and regulations as public safety and
interest may require, and supervise and inspect the operation of radio
stations and telecommunications facilities. 31 The NTC exercises quasi-
judicial powers. 32
The issuance of the press release by NTC was well within the scope
of its regulatory and supervision functions, part of which is to ensure that
the radio and television stations comply with the law and the terms of
their respective authority. Thus, it was not improper for the NTC to warn
the broadcast media that the airing of taped materials, if subsequently
shown to be false, would be a violation of law and of the terms of their
certificate of authority, and could lead, after appropriate investigation, to
the cancellation or revocation of their license.
2. The press release was not in the nature
of "prior restraint" on freedom of expression
 Courts have traditionally recognized two cognate and
complementary facets of freedom of expression, namely: freedom from
censorship or prior restraint and freedom from subsequent punishment.
The first guarantees untrammeled right to expression, free from
legislative, administrative or judicial orders which would effectively bar
speech or publication even before it is made. The second prohibits the
imposition of any sanction or penalty for the speech or publication after
its occurrence. Freedom from prior restraint has enjoyed the widest
spectrum of protection, but no real constitutional challenge has been
raised against the validity of laws that punish abuse of the freedom, such
as the laws on libel, sedition or obscenity.
"Prior restraint" is generally understood as an imposition in advance
of a limit upon speech or other forms of expression. 33 In determining
whether a restriction is a prior restraint, one of the key factors considered
is whether the restraint prevents the expression of a message. 34 In
Nebraska Press Association v. Stuart, 35 the U.S. Supreme Court declared:
A prior restraint . . . by definition, has an immediate and irreversible
sanction. If it can be said that a threat of criminal or civil sanctions
after publication "chills" speech, prior restraint "freezes" it at least for
the time.

As an aspect of freedom of expression, prior restraint should not be

confused with subsequent punishment. In Alexander v. U.S., 36 petitioner's
complaint was that the RICO forfeiture provisions on businesses dealing
in expressive materials constituted "prior restraint" because they may
have an improper "chilling" effect on free expression by deterring others
from engaging in protected speech. In rejecting the petitioner's contention
and ruling that the forfeiture is a permissible criminal punishment and not
a prior restraint on speech, the U.S. Supreme Court said:
The term prior restraint is used "to describe administrative and
judicial orders forbidding certain communications when issued in
advance of the time that such communications are to occur."
Temporary restraining orders and permanent injunctions i.e.,
court orders that actually forbid speech activities are classic
examples of prior restraints.
xxx xxx xxx
 Finally, petitioner's proposed definition of the term "prior restraint"
would undermine the time-honored distinction between barring
speech in the future and penalizing past speech. The doctrine of
prior restraint originated in the common law of England where prior
restraints of the press were not permitted, but punishment after
publication was. This very limited application of the principle of
freedom of speech was held inconsistent with our First Amendment
as long ago as Grosjean v. American Press Co. While we may have
given a broader definition to the term "prior restraint" than was
given to it in English common law, our decisions have steadfastly
preserved the distinction between prior restraints and subsequent
punishments. Though petitioner tries to dismiss this distinction as
"neither meaningful nor useful," we think it is critical to our First
Amendment jurisprudence. Because we have interpreted the First
Amendment as providing greater protection from prior restraints
than from subsequent punishments, it is important for us to
delineate with some precision the defining characteristics of a prior
restraint. To hold that the forfeiture order in this case constituted a
prior restraint would have the exact opposite effect. It would blur the
line separating prior restraints from subsequent punishments to
such a degree that it would be impossible to determine with any
certainty whether a particular measure is a prior restraint or not.

A survey of free speech cases in our jurisdiction reveals the same

disposition: there is prior restraint when the government act forbids
speech, prohibits the expression of a message, or imposes onerous
requirements or restrictions for the publication or dissemination of ideas.
In theses cases, we did not hesitate to strike down the administrative or
judicial order for violating the free expression clause in the Constitution.
Thus, in Primicias v. Fugoso 37 and in Reyes v. Bagatsing, 38 the refusal,
without valid cause, of the City Mayor of Manila to issue a permit for a
public assembly was held to have infringed freedom of expression. In
Burgos v. Chief of Staff 39 and in Eastern Broadcasting v. Dans, 40 the closure
of the printing office of the newspapers, We Forum and Metropolitan Mail,
and of radio station DYRE in Cebu, respectively, was ruled as violation of
freedom of the press.
On election-related restrictions, Mutuc v. COMELEC 41 invalidated the
respondent's prohibition against the use of taped jingles in mobile units
of candidates; Adiong v. COMELEC 42 struck down the COMELEC's
resolution limiting the posting of candidates' decals and stickers only in
designated areas and not allowing them in private or public vehicles;
Sanidad v. COMELEC 43 declared as unconstitutional the COMELEC
prohibition on newspaper columnists and radio commentators to use
their columns or programs to campaign for or against the ratification of
the organic act establishing the Cordillera Autonomous Region; ABS-CBN
Broadcasting Corporation v. COMELEC 44 annulled the COMELEC resolution
prohibiting the conduct of exit polls; and Social Weather Stations v.
COMELEC 45 nullified Section 5.4 of Republic Act No. 9006 and Section 24
(h) of COMELEC Resolution 3636 which prohibited the publication of pre-
election survey results within specified periods.
On movies and television, the injunctive writs issued by lower courts
against the movie producers in Ayer Productions Pty. Ltd. v. Capulong 46 and
in Viva Productions v. Court of Appeals 47 were invalidated, while in Iglesia ni
Cristo v. Court of Appeals, 48 the X-rating given by MTRCB to the television
show was ruled as grave abuse of discretion.
But there is no parity between these cases and the case at bench.
Unlike the government acts in the above-cited cases, what we have before
us now is merely a press release not an order or a circular warning
broadcast media on the airing of an alleged taped conversation, with the
caveat that should its falsity be subsequently established, the act could
lead to the revocation or cancellation of their licenses, after appropriate
investigation. The warnings on possible license revocation and criminal
prosecution are simply what they are, mere warnings. They have no
compulsive effect, as they do not impose a limit on speech or other forms
of expression nor do they prevent the expression of a message.
The judicial angle of vision in testing the validity of the assailed
press release against the prior restraint standard is its operation and
substance. The phrase "prior restraint" is not a self-wielding sword, nor
should it serve as a talismanic test. What is needed is a practical
assessment of its operation in specific or particular circumstances. 49
Significant are our own decisions in a number of cases where we
rejected the contention that there was infringement of freedom of
expression. In Lagunzad v. Vda. de Gonzales, 50 after balancing the right to
privacy of Padilla's family with the right to free expression of the movie
producer, we did not deem the Licensing Agreement for the movie
depiction of the life of Moises Padilla as imposition of an impermissible
limit on free speech. In Presidential Commission on Good Government
(PCGG) v. Nepomuceno, 51 we refused to consider the PCGG takeover of
radio station DWRN as an infringement on freedom of the press. In
Tolentino v. Secretary of Finance, 52 we did not yield to the proposition of
the press that the imposition of value added tax (VAT) on the gross
receipts of newspapers from advertisements and on their acquisition of
paper, ink and services for publication was an abridgment of press
freedom. In Lagunzad, we said that while the License Agreement allowed
the producer to portray in a movie the life of Moises Padilla, it did not
confer poetic license to incorporate fictional embellishments. The
takeover in PCGG was merely intended to preserve the assets, funds and
properties of the station while it maintained its broadcasting operations.
The VAT in Tolentino did not inhibit or impede the circulation of the
newspapers concerned.
Similarly, in the instant case, the issuance of the press release was
simply part of the duties of the NTC in the enforcement and
administration of the laws which it is tasked to implement. The press
release did not actually or directly prevent the expression of a message.
The respondents never issued instructions prohibiting or stopping the
publication of the alleged wiretapped conversation. The warning or
advisory in question did not constitute suppression, and the possible in
terrorem effect, if any, is not prior restraint. It is not prior restraint
because, if at all, the feared license revocation and criminal prosecution
come after the publication, not before it, and only after a determination
by the proper authorities that there was, indeed, a violation of law.
The press release does not have a "chilling effect" because even
without the press release, existing laws and rules and regulations
authorize the revocation of licenses of broadcast stations if they
are found to have violated penal laws or the terms of their authority.
53 The majority opinion emphasizes the chilling effect of the challenged
press releases the fear of prosecution, cancellation or revocation of
license by virtue of the said press statements. 54 With all due respect, the
majority loses sight of the fact that the press statements are not a
prerequisite to prosecution, neither does the petition demonstrate that
prosecution is any more likely because of them. If the prosecutorial arm
of the Government and the NTC deem a media entity's act to be violative
of our penal laws or the rules and regulations governing broadcaster's
licenses, they are free to prosecute or to revoke the licenses of the erring
entities with or without the challenged press releases. 55
The petitioner likewise makes capital of the alleged prior
determination and conclusion made by the respondents that the
continuous airing of the tapes is a violation of the Anti-Wiretapping Law
and of the conditions of the authority granted to the broadcast stations.
The assailed portion of the press release reads:
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
it is the position of the commission that the continuous airing or
broadcast of the said taped conversations by radio and television
stations is a continuing violation of the anti-wiretapping law and the
conditions of the provisional authority and/or certificate of authority
issued to these radio and television stations.

However, that part of the press statement should not be read in isolation,
but in the context of the entire paragraph, the rest of which reads:
If it has been subsequently established that the said tapes are
false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are
hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or
authorizations issued to the said companies.

Obviously, this latter portion qualifies the earlier part of the paragraph.
Only when it has been sufficiently established, after a prosecution or
appropriate investigation, that the tapes are false or fraudulent may there
be a cancellation or revocation of the station's license. There is no
gainsaying that the airing of false information or willful misrepresentation
constitutes a valid ground for revocation of the license, and so is violation
of the Anti-Wiretapping Law which is a criminal offense. But that such
revocation of license can only be effected after an appropriate
investigation clearly shows that there are adequate safeguards available
to the radio and television stations, and that there will be compliance with
the due process clause.
It is noteworthy that in the joint press statement issued on June 14,
2005 by the NTC and the Kapisanan ng mga Broadcasters sa Pilipinas, there
is an acknowledgement by the parties that NTC "did not issue any MC
(Memorandum Circular) or order constituting a restraint of press freedom
or censorship." If the broadcasters who should be the most affected by
the assailed NTC press release, by this acknowledgement, do not feel
aggrieved at all, we should be guided accordingly. We cannot be more
popish than the pope.
Finally, we believe that the "clear and present danger rule" the
universally-accepted norm for testing the validity of governmental
intervention in free speech finds no application in this case precisely
because there is no prior restraint.
3. The penal sanction in R.A. 4200 or
the revocation of the license for violation
of the terms and conditions of the provisional
authority or certificate of authority is
permissible punishment and does not
infringe on freedom of expression.
The Anti-Wiretapping Law (Republic Act 4200) is a penal statute.
Over the years, no successful challenge to its validity has been sustained.
Conviction under the law should fittingly be a just cause for the revocation
of the license of the erring radio or television station.
Pursuant to its regulatory authority, the NTC has issued
memorandum circulars covering Program Standards to be followed by
radio stations and television networks, a common provision of which
reads:
All radio broadcasting and television stations shall provide adequate
public service time, shall conform to the ethics of honest enterprise;
and shall not use its stations for the broadcasting or telecasting of
 obscene or indecent language, speech and/or scene, or for the
dissemination of false information or willful misrepresentation,
or to the detriment of the public health or to incite, encourage or
assist in subversive or treasonable acts. 56

Accordingly, in the Provisional Authority or the Certificate of Authority

issued to all radio, television and cable TV stations, which all licensees
must faithfully abide with, there is incorporated, among its terms and
conditions, the following clause:
Applicant-Grantee shall provide free of charge, a minimum of thirty
(30) hours/month time or access channel thru its radio/television
station facilities to the National Government to enable it to reach the
population on important public issues; assist public information and
education; conform with the ethics of honest enterprise; and
shall not use its stations for the telecasting of obscene or for
dissemination of false information or willful misrepresentation,
or do any such act to the detriment of public welfare, health,
morals or to incite, encourage, or assist in any treasonous,
rebellious, or subversive acts/omissions.

Undoubtedly, this is a reasonable standard of conduct demanded of

the media outlets. The sanction that may be imposed for breach thereof
suspension, cancellation or revocation of the station's license after an
appropriate investigation has sufficiently established that there was a
breach is also reasonable. It cannot be characterized as impermissible
punishment which violates freedom of expression.
There is no transgression of the people's right
to information on matters of public concern.
With the foregoing disquisition that there was no infringement on
freedom of expression, there is no case for violation of the right to
information on matters of public concern. Indeed, in the context of the
prevailing factual milieu of the case at bench, the petitioner's contention
can thrive only if there is a showing that the act of the respondents
constituted prior restraint.
There is, therefore, no further need to belabor the point.
NTC did not commit grave abuse of
discretion when it issued the press release
 Grave abuse of discretion is defined as such capricious or whimsical
exercise of judgment equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility. 57 For
grave abuse of discretion to be present, petitioner must show that the
respondents violated or ignored the Constitution, the laws or existing
jurisprudence. 58
As discussed earlier, respondents, in making the questioned press
releases, did not violate or threaten to violate the constitutional rights to
free expression and to information on matters of public concern. No
grave abuse of discretion can be imputed to them.
One final word. With the benefit of hindsight, it is noted that from
the time the assailed press releases were issued and up to the present,
the feared criminal prosecution and license revocation never materialized.
They remain imagined concerns, even after the contents of the tapes had
been much talked about and publicized.
I therefore vote to dismiss the petition for certiorari and prohibition.

TINGA, J., dissenting and concurring:

This case, involving as it does the perennial clash between

fundamental individual freedoms and state power, confronts the Court
with a delicate and difficult balancing task.
With all due respect with a little more forbearance, the petition
could have been conduced to a denouement of congruity but without
diminishing the level of scrutiny that the crucial stakes demand. I trust
though that future iterations of this Court, more divorced from some
irrational aspects of the passions of these times, will further refine the
important doctrines laid down today.
Several considerations guide my vote to grant the petition to
issue the quested writ against the respondent Department of Justice
Secretary Raul M. Gonzalez (DOJ Secretary), but not as to respondent
National Telecommunications Commission (NTC).
 I.
I begin with some observations on the petition itself filed by former
Solicitor General Francisco Chavez, brought forth in his capacity "as a
citizen, taxpayer and a law practitioner" against the DOJ Secretary and the
NTC. At a crucial point during the deliberations on this case, much of the
focus within the Court was on the aspect of the case concerning the NTC,
to the exclusion of the aspect concerning the DOJ Secretary. However, the
petition itself only minimally dwells on the powers of the National
Telecommunications Commission (NTC).
The petition was filed on 21 June 2005, less than a month after the
so-called Hello Garci tapes (Garci tapes) hit the newstands. The petition
narrates that a few days after reports on the Garci tapes became public,
respondent DOJ Secretary "threatened that everyone found to be in
possession of the controversial audio tape, as well as those broadcasting
it or printing its contents, were liable for violation of the Anti-Wiretapping
Law," 1 and subsequently he ordered the National Bureau of Investigation
(NBI) "to go after media organizations found to have caused the spread,
the playing and the printing of the contents" of the said tape.
Then, a Press Release was issued by respondent NTC, essentially
warning broadcast stations, "[i]f it has been subsequently established that
the said tapes are false and/or fraudulent after a prosecution or
appropriate investigation. . .[,] that their broadcast/airing of such false
information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or
authorizations issued to the said companies." 2 These essentially are the
antecedent facts raised in the petition.
Petitioner presents two general arguments for our determination:
that respondents violated the constitutional provisions on the freedom of
expression and of the press, 3 and of the right of the people to
information on matters of public concern; 4 and that the NTC acted
beyond its powers as a regulatory body when it warned broadcast
stations of consequences if they continued to air the contents of the
disputed tapes. 5
 Fifteen (15) pages are assigned to the first issue, while four (4) pages
are allotted to the second issue concerning the NTC. In the context of
arguing that there had been prior restraint, petitioner manifests that "the
threat of crackdown on media and the public were calculated to sow fear
and terror in advance of actual publication and dissemination of the
contents of the controversial tapes." 6 Because of such "fear and terror,"
the public was denied free access to information as guaranteed by the
Constitution. 7
Only four (4) pages are devoted to whether the NTC exceeded its
discretion when it issued the Press Release. About two (2) of the four (4)
pages are utilized to cite the statutory provisions delineating the powers
and functions of the NTC. The citations are geared toward the claim that
"NTC is independent in so far as its regulatory and quasi-judicial functions
are concerned." 8 Then the petition argues that nothing in the functions of
the NTC "warrants the pre-emptive action it took on June 11, 2005 of
declaring in a Press Release that airing of the contents of the controversial
tape already constituted a violation of the Anti-Wire Tapping Law." 9 The
petition also states that "[w]orse, the judgment of NTC was outright,
without a hearing to determine the alleged commission of a crime and
violation of the certificate of authority issued to radio and television
stations," 10 though this point is neither followed up nor bolstered by
appropriate citations which should be plenty.
One relevant point of fact is raised in the Comment filed by the
Office of the Solicitor General (OSG) in behalf of respondents. Three (3)
days after the issuance of the Press Release, the NTC and the Kapisanan
ng mga Brodkaster sa Pilipinas (KBP) issued a Joint Statement crafted after
a dialogue between them. The Joint Statement declares:
2. NTC respects and will not hinder freedom of the press and the
right to information on matters of public concern. KBP & its
members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning judgment
of fairness and honesty.
3. NTC did not issue any Memorandum Circular or Order constituting
a restraint of press freedom or censorship. The NTC further denies
 and does not intend to limit or restrict the interview of members of
the opposition or free expression of views.
4. What is being asked by NTC is that the exercise of press freedom
be done responsibly. 11

II.
Based on the petition, the determinative questions appear to be: (1)
whether the DOJ Secretary may be enjoined from prosecuting or
threatening to prosecute any person for possessing or broadcasting the
contents of the Garci tapes, an act which allegedly violates the free
expression clause if not also the right to information clause; and (2)
whether the NTC may be enjoined from sanctioning or threatening to
sanction any broadcast media outlet for broadcasting the Garci tapes, an
action also alleged to infringe the aforementioned constitutional rights.
It should be stressed that there are critical differences between the
factual and legal milieu of the assailed act of the DOJ Secretary, on one
hand, and that of the questioned conduct of the NTC, on the other. The
act complained of the NTC consists in the issuance of a Press Release,
while that of the DOJ Secretary is not encapsulated in a piece of paper but
comprised in utterances which nonetheless were well documented by the
news reports at that time. There is an element of caution raised in the
Press Release in that it does not precisely sanction or threaten to
immediately sanction the broadcast media for airing the Garci tapes, but it
raises that possibility on the condition that "it has been subsequently
established that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation." No such suspensive condition is
embodied in the assailed acts of the DOJ Secretary.
And most critical in my view is the distinction between the NTC and
the DOJ Secretary with respect to the breadth and reach of their ability to
infringe upon the right to free expression. The NTC is a quasi-judicial
regulatory body attached to the Department of Transportation and
Communications exercising regulatory jurisdiction over a limited set of
subjects: the broadcast media, telecommunications companies, etc. In the
scope of its regulatory jurisdiction, it concededly has some capacity to
impose sanctions or otherwise perform acts that could impinge on the
right of its subjects of regulation to free expression, although the precise
parameters of its legal authority to exercise such actions have not yet
been fully defined by this Court.
In contrast, the ability of the DOJ Secretary and the office that he
heads to infringe on the right to free expression is quite capacious. Unlike
the NTC whose power of injunction and sanction is limited to its subjects
of regulation, the DOJ Secretary heads the department of government
which has the premier faculty to initiate and litigate the prosecution of
just about anybody.
III.
It should be assumed without controversy that the Garci tapes fall
within the protection of the free expression clause.
Much has been said in homage to the right to free expression. It is
precisely the underlying reason I can write this submission, and the
reader can read this opinion or any news account concerning the decision
and its various separate opinions. The revolutions we celebrate in our
history books were animated in part by an insistence that this right should
be recognized as integral. 12 The right inheres in the first yawl of the
newborn infant, and allows a person to speak honestly in the throes of
death.
In 20th century American jurisprudence, the right to free speech
and expression has been rightly linked to the inalienable right to liberty
under the due process clause. 13 Indeed, liberty cannot be actualized
unless it encompasses liberty of speech and expression. As a
consequence, the same methodology as applied to due process and equal
protection cases may hold as well to free expression cases.
In my view, the operative principles that should govern the
adjudication of free expression cases are uncomplicated. The
infringement on the right by the State can take the mode of a content-
based regulation or a content-neutral regulation. With respect to content-
based regulations, the only expressions that may be proscribed or
punished are the traditionally recognized unprotected expressions
those that are obscene, pose danger to national security or incite
imminent lawless action, or are defamatory. 14 In order that such
unprotected expressions may be restrained, it must be demonstrated that
they pose a clear and present danger of bringing about a substantive evil
that the State has a right and duty to prevent, such danger being grave
and imminent as well. But as to all other protected expressions, there can
be no content-based regulation at all. No prior restraint, no subsequent
punishment.
For as long as the expression is not libelous or slanderous, not
obscene, or otherwise not dangerous to the immediate well-being of the
State and of any other's, it is guaranteed protection by the Constitution. I
do not find it material whether the protected expression is of a political,
religious, personal, humorous or trivial nature they all find equal
comfort in the Constitution. Neither should it matter through what
medium the expression is conveyed, whether through the print or
broadcast media, through the Internet or through interpretative dance.
For as long as it does not fall under the above-mentioned exceptions, it is
accorded the same degree of protection by the Constitution.
Still concerning the protection afforded to the tapes, I do take issue
with Justice Carpio's view that "[t]he airing of the Garci tapes is essentially
a political expression because it exposes that a presidential candidate had
allegedly improper conversations with a COMELEC Commissioner. . ." and
that the contents of the tapes "affect gravely the sanctity of the ballot." 15
These statements are oriented towards the conclusion that "[i]f ever there
is a hierarchy of protected expressions, political expression would occupy
the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top." 16 Yet even the
majority opinion acknowledges that "the integrity of the taped
conversation is also suspect. . ." and "[t]he identity of the wire-tappers, the
manner of its commission, and other related and relevant proofs are
some of the invisibles of this case. . . given all these unsettled facets of the
tape, it is even arguable whether its airing would violate the anti-
wiretapping law." 17
To be blunt, it would be downright pretentious for the Court to
attribute to the tapes any definitive character, political or otherwise,
because there is simply no basis for us to make such conclusion at this
point. But even if they are not of a political character, they nonetheless
find protection under the free expression clause.
 IV.
Given the constitutionally protected character of the tapes, it still
falls upon the petition to establish that there was an actual infringement
of the right to expression by the two denominated respondents the
DOJ Secretary and the NTC in order that the reliefs sought may avail.
There are two distinct (though not necessarily exclusive) means by which
the infringement can be committed by either or both of the respondents
through prior restraint or through an act that creates a chilling effect
on the exercise of such right.
I turn first to the assailed acts of the NTC.
It is evident from the Decision and the concurring opinion of Justice
Carpio that they give primary consideration to the aspect relating to the
NTC, notwithstanding the relative lack of attention devoted by the petition
to that issue. The impression they leave thus is that the assailed acts of
the NTC were somehow more egregious than those of the DOJ Secretary.
Worse, both the Decision and the concurring opinion reach certain
conclusions on the nature of the Press Release which are, with due
respect, untenable.
IV-A.
As a means of nullifying the Press Release, the document has been
characterized as a form of prior restraint which is generally impermissible
under the free expression clause. The concept of prior restraint is
traceable to as far back as Blackstone's Commentaries from the 18th
century. Its application is integral to the development of the modern
democracy. "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." 18 In Nebraska Press Association v. Stuart, 19 the United States
Supreme Court noted that "prior restraints on speech and publication are
the most serious and the least tolerable infringement on First
Amendment rights." 20
Yet prior restraint "by contrast and by definition, has an immediate
and irreversible sanction." 21 The assailed act of the NTC, contained in
what is after all an unenforceable Press Release, hardly constitutes "an
immediate and irreversible sanction." In fact, as earlier noted, the Press
Release does not say that it would immediately sanction a broadcast
station which airs the Garci tapes. What it does say is that only "if it has
been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation" that the
stations could be subjected to possible suspension. It is evident that the
issuance does not prohibit the airing of the Garci tapes or require that the
broadcast stations obtain permission from the government or the NTC to
air such tapes.
How then have my esteemed colleagues, the Chief Justice and
Justice Carpio, arrived at their conclusion that the Press Release operated
as a prior restraint? Justice Carpio characterizes the Press Release as a
"warning," and the document does use the word "warned," yet a warning
is not "an immediate and irreversible sanction." The warning embodied in
the Press Release is neither a legally enforceable vehicle to impose
sanction nor a legally binding condition precedent that presages the
actual sanction. However one may react to the Press Release or the
perceived intent behind it, the issuance still does not constitute "an
immediate and irreversible sanction".
On the other hand, the Decision discusses extensively what prior
restraint is, characterizing it, among others things, as "official government
restrictions on the press or other forms of expression in advance of actual
publication or dissemination." 22 The majority enumerates certain
governmental acts which constitute prior restraint, such as the approval
of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to
publish; injunctions against publication; the closure of the business or
printing offices of certain newspapers; or more generally, "[a]ny law or
official [act] that requires some form of permission to be had before
publication can be made." 23
The Press Release does not fit into any of the acts described above
in the majority opinion. Neither can it be identified as an "official
government restriction" as it simply does not levy any actual restriction on
the subjects of NTC regulation. Still, without undertaking a demonstration
how the Press Release actually restrained free expression, the majority
surprisingly makes a leap of logic, concluding as it does that such an
informal act as a press statement is covered by the prior restraint
concept. 24 As with Justice Carpio, the majority does not precisely explain
how the Press Release could constitute an actual restraint, worded as it
was with nary a notion of restriction and given its lack "of an immediate
and irreversible sanction."
Absent prior restraint, no presumption of invalidity can arise.
IV-B.
I fear that the majority especially has unduly fused the concepts of
"prior restraint" and "chilling effect." There are a few similarities between
the two concepts especially that both come into operation before the
actual speech or expression finds light. At the same time, there are
significant differences.
A government act that has a chilling effect on the exercise of free
expression is an infringement within the constitutional purview. As the
liberal lion Justice William Brennan announced, in NAACP v. Button, 25 "the
threat of restraint, as opposed to actual restraint itself, may deter
the exercise of the right to free expression almost as potently as the
actual application of sanctions." 26 Such threat of restraint is perhaps a
more insidious, if not sophisticated, means for the State to trample on
free speech. Protected expression is chilled simply by speaking softly
while carrying a big stick.
In distinguishing chilling effect from prior restraint, Nebraska Press
Association, citing Bickel, observed, "[i]f it can be said that a threat of
criminal or civil sanctions after publication 'chills' speech, prior restraint
"freezes" it at least for the time." 27 An act of government that chills
expression is subject to nullification or injunction from the courts, as it
violates Section 3, Article III of the Constitution. "Because government
retaliation tends to chill an individual's exercise of his right to free
expression, public officials may not, as a general rule, respond to an
individual's protected activity with conduct or speech even though that
conduct or speech would otherwise be a lawful exercise of public
authority. 28
 On the one hand, Justice Carpio does not bother to engage in any
"chilling effect" analysis. On the other hand, the majority does conclude
that the acts of the NTC had a chilling effect. Was there truly a chilling
effect resulting from the Press Release of the NTC?
While the act or issuance itself may evince the impression of a
chilling effect, there still must be factual evidence to support the
conclusion that a particular act of government actually engendered a
chilling effect. There appears to be no case in American jurisprudence
where a First Amendment claim went forward in the absence of
evidence that speech was actually chilled. 29
In a case decided just last year by a U.S. District Court in Georgia, 30
the following summary was provided on the evidentiary requirement in
claims of a chilling effect in the exercise of First Amendment rights such as
free speech and association:
4. Proof of Chilling Effect
Defendants' argue that Plaintiffs have failed to introduce evidence of
a chilling effect, which is required to maintain a First Amendment
claim. There is some uncertainty regarding the extent of evidence
required to sustain a First Amendment challenge based on the
chilling effect of compelled disclosure of protected political activity.
See In re Grand Jury Proceeding, 842 F.2d 1229, 1235-36 (11th
Cir.1988). The Supreme Court has indicated on several occasions that
some evidence of a chilling effect is required.
In NAACP, for example, the Supreme Court accepted that a chilling
effect would result from the compelled disclosure of the NAACP's
membership lists because of "uncontroverted evidence" in the
record that members of the NAACP had suffered past adversity as a
result of their known membership in the group. 357 U.S. at 464-65,
78 S.Ct. 1163. The Court in Buckley v. Valeo, however, emphasized, in
rejecting a challenge to campaign finance disclosure laws based on
its alleged chilling effect on political association, that there was no
record evidence of a chilling effect proving a violation of the right to
association. Buckley, 424 U.S. at 71-72, 96 S.Ct. 612 (noting that
failure to tender evidence of chilling effect lessened scrutiny applied
to First Amendment challenge to campaign donation disclosure
laws).
Seizing on this apparent evidentiary requirement, several lower
courts have rejected right of association challenges for lack of
evidence of a chilling effect. See, e.g., Richey v. Tyson, 120 F.Supp.2d
1298, 1324 (S.D.Ala.2000) (requiring, in challenge of campaign
finance law, evidence of a "reasonable probability" of threats,
harassment, or reprisals "from sources such as specific evidence of
past or present harassment of members or of the organization, a
pattern of threats, specific manifestations of public hostility, or
conduct visited on organizations holding similar views"); Alabama
State Federation of Teachers, AFL-CIO v. James, 656 F.2d 193, 197 (5th
Cir. Unit B Sept.17, 1981) (rejecting right of association challenge for
lack of evidence of chilling effect); Int'l Organization of Masters, Mates,
and Pilots, 575 F.2d 896, 905 (D.C.Cir.1978) (same).
But the Eleventh Circuit has drawn a distinction between challenges
to political campaign donation disclosure rules of the sort at issue in
Buckley and Richey and challenges to government investigations into
"particular political group or groups" of the sort in NAACP and at
issue in this case. See In re Grand Jury Proceeding, 842 F.2d at 1236. In
doing so, the Eleventh Circuit suggested that a "more lenient"
showing applies to targeted investigations because "the government
investigation itself may indicate the possibility of harassment." Id.;
see also Pollard v. Roberts, 283 F.Supp. 248, 258 (D.C.Ark.1968), aff'd
per curiam 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (finding
prosecutor's attempt to subpoena the names of contributors to a
political campaign unconstitutional, despite "no evidence of record in
this case that any individuals have as yet been subjected to reprisals
on account of the contributions in question," because "it would be
naive not to recognize that the disclosure of the identities of
contributors to campaign funds would subject at least some of them
to potential economic or political reprisals of greater or lesser
severity"); cf. also Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d
1358, 1366-67 (11th Cir.1999) (concluding, without discussing record
evidence of chilling effect, that statute which required disclosure of
names of principal stockholders of adult entertainment
establishments was abridgement of First Amendment).
In addition, concerns about the economic vulnerabilities of public
employees have led courts to more easily find the presence of a
chilling effect on disclosure rules imposed on public employees. See,
 e.g., Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. Waterfront
Commission of New York Harbor, 667 F.2d 267, 271-72 (2d Cir.1981).
Where the government has "pervasive control over the economic
livelihood" or "professional destiny" of its employees, it may be
obvious that compelling disclosure of organizational affiliations
under threat of discipline could create a "substantial danger" of an
"inevitable" chilling effect. Id. Thus, when examining freedom of
association challenges in the public employment context, courts have
applied a "common sense approach." Id. at 272; see also Shelton, 364
U.S. at 486, 81 S.Ct. 247 (noting, in finding questionnaire distributed
to public teachers inquiring into their organizational memberships
unconstitutional, that burden on teacher's freedom to associate was
"conspicuously accented when the teacher serves at the absolute will
of those to whom the disclosure must be made," and not discussing
evidence of chilling effect); Fraternal Order of Police, 812 F.2d at 119-
20 ("We recognize that the record contains no evidence that would
support a finding that a required response to this question would
chill the applicant's or family member's associational activities.
However, in light of the absence of any legitimate interest asserted
by the City to justify the inquiry, we conclude that the question would
not even withstand a more relaxed scrutiny than that usually applied
to questions which seek disclosure of associational ties."). 31

It makes utter sense to impose even a minimal evidentiary

requirement before the Court can conclude that a particular government
action has had a chilling effect on free speech. Without an evidentiary
standard, judges will be forced to rely on intuition and even personal or
political sentiments as the basis for determining whether or not a chilling
effect is present. That is a highly dangerous precedent, and one that
clearly has not been accepted in the United States. In fact, in Zieper v.
Metzinger, 32 the U.S. District Court of New York found it relevant, in ruling
against the petitioner, that Zieper "has stated affirmatively that his speech
was not chilled in any way." 33 "Where a party can show no change in his
behavior, he has quite plainly shown no chilling of his First Amendment
right to free speech." 34
In view of its regulatory jurisdiction over broadcast media, the ability
of the NTC to infringe the right to free expression extends only to its
subjects of regulation, not to private persons such as petitioner. Thus, to
consider at bar whether or not the NTC Press Release had a chilling effect,
one must look into the evidence on record establishing the broadcast
media's reaction to the Press Release.
The majority states that "[t]here is enough evidence of chilling effect
of the complained acts of record," alluding to "the warnings given to
media [which] came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media." 35
With due respect, I submit that what the record establishes is merely the
presence of the cause for chilling (the Press Release), but not the actual
chilling effect itself on the broadcast media. In that respect, the Joint
Statement of the NTC and the KBP executed just three (3) days after the
issuance of the Press Release, becomes material.
In the employment of the "chilling effect mode of analysis,"
disregarding the actual effects would mean dispensing with any
evidentiary requirement for the constitutional claim. That is a doctrine
which does not bode well for the Court's future in constitutional
adjudication, and one I expect that will be significantly modified in due
time.
In the Joint Statement, the KBP assented to the manifestation that
"NTC did not issue any [Memorandum Circular] or Order constituting a
restraint of press freedom or censorship, as well as disavowed having
acted or intending "to limit or restrict the interview of members of the
opposition or free expression of views." 36 The Joint Statement can
certainly be taken in favor of the NTC as proof that its Press Release did
not actually create a chilling effect on the broadcast media. On its face, it
evinces the KBP's contentment with the Press Release and all other steps
taken by the NTC with respect to the Garci tapes, coupled with the
acknowledgment that the NTC had not infringed the right to free
expression of its subjects of regulation.
The majority casts aspersions on the KBP for "inexplicably joining
the NTC in issuing an ambivalent Joint Press Statement" and on the
perceived "silence on the sidelines on the part of some media
practitioners." 37 Yet these are derogatory conjectures that are not
supported by the record. It is quite easy to draw such negative inference,
but there is another inference that can be elicited from the evidence on
record that the KBP was so satisfied with the NTC's actions it consented
to the averments in the Joint Statement. Since Independence, and outside
of the Marcos years, there is no tradition of cowardice on the part of the
Philippine media, even in the face of government retribution. Indeed, it is
false and incongruous to dilute with aspersions of docility and inertness
the true image of the most robust, vigilant and strident media in Asia.
The best indication that the Philippine broadcast media was
cowered or chilled by the NTC Press Release, if ever, would have been its
initiation of a suit similar to that at bar, or its participation herein. The fact
that it did not can lead to the reasonable assumption that the Press
Release did not instill fear in the members of the broadcast media, for
they have since then, commendably and in true-to-form fashion
challenged before the courts other NTC issuances which they perceived as
actual threats to their right to free expression. 38
It bears adding that I had proposed during the deliberations of this
case that the KBP or other large media organizations be allowed to
intervene should they be so minded, if only to elicit their views for the
record whether the NTC by issuing the Press Release truly chilled the
exercise of their rights to expression, notwithstanding the Joint Statement.
After all, it would be paternalistic at best, presumptuous at worst, for
the Court to assume that conclusion without affording the broadcast
media the opportunity to present its views on the question. Yet a
majority of the members of the Court declined to take that step,
thereby disallowing the introduction of more sufficient evidence to
warrant a ruling against the NTC.
Thus, we are left with utter paucity of evidence that the NTC had
infringed the press freedom of its subjects of regulation mainly because of
the broadcast media's non-participation in the petition at bar. If only on
that account, I have to vote against the writ sought against the NTC. To
decide otherwise would simply set an injudicious precedent that permits
the affirmative relief to constitutional claims without having to bother with
the need for evidence.
There is another point raised with respect to the NTC aspect of this
case, and that is the question of whether the NTC actually has the
statutory authority to enjoin or sanction the broadcast of the tapes. The
majority opinion does not conclusively settle that question, and that is for
the best, given the absence of comprehensive arguments offered by the
petitioner on that issue. I reserve my right to offer an opinion on that
question in the appropriate case. Suffice it to say, there are at least two
other cases now pending with this Court which raise precisely that
question as the central issue and not merely as an afterthought. Those
cases, which do offer more copious arguments on that issue than those
presented before us, would provide a more fortuitous venue for the
settlement of those questions.
IV-C.
The majority and concurring opinions hardly offer any rebuke to the
DOJ Secretary even as they vote to grant affirmative relief against his
actions. This ensued, I suspect, due to the undue focus placed on the
arguments concerning the NTC, even though the petition itself was not so
oriented. But for my part, it is the unequivocal threats to prosecute would-
be-offenders, made no less by the head of the principal law agency of the
government charged with the administration of the criminal justice
system, 39 that constitute the violation of a fundamental freedom that in
turn warrants this Court's intervention.
The particular acts complained of the DOJ Secretary are explained in
detail in the petition, 40 narrated in the decision, 41 and corroborated by
contemporary news accounts published at that time. 42 The threats are
directed at anybody in possession of, or intending to broadcast or
disseminate, the tapes. Unlike the NTC, the DOJ Secretary has the actual
capability to infringe the right to free expression of even the petitioner, or
of anybody for that matter, since his office is empowered to initiate
criminal prosecutions. Thus, petitioner's averments in his petition and
other submissions comprise the evidence of the DOJ Secretary's
infringement of the freedom of speech and expression.
Was there an actual infringement of the right to free expression
committed by the DOJ Secretary? If so, how was such accomplished? Quite
clearly, the DOJ Secretary did infringe on the right to free expression by
employing "the threat of restraint," 43 thus embodying "government
retaliation [that] tends to chill an individual's exercise of his right to free
expression." 44 The DOJ Secretary plainly and directly threatened anyone
in possession of the Garci tapes, or anyone who aired or disseminated the
same, with the extreme sanction of criminal prosecution and possible
imprisonment. He reiterated the threats as he directed the NBI to
investigate the airing of the tapes. He even extended the warning of
sanction to the Executive Press Secretary. These threats were evidently
designed to stop the airing or dissemination of the Garci tapes a protected
expression which cannot be enjoined by executive fiat.
Tasked with undertaking the defense of the DOJ Secretary, the OSG
offered not even a ghost of a contest as soon as the bell for the first round
rang. In abject surrender, it squeezed in just one paragraph 45 in its 27-
page Comment for that purpose.
The arguments offered in that solitary paragraph are meager. It
avers that the media reports are without probative value or, at best,
inconclusive as the declarations therein may have been quoted
inaccurately or out of context. 46 Yet the OSG does not deny that the
statements were made, 47 failing even to offer what may have been the
"accurate context." The OSG also points out that the DOJ Secretary has not
actually "made any issuance, order or instruction to the NBI to go after
such media organizations." Yet the fact that the DOJ Secretary has yet to
make operational his threats does not dissuade from the conclusion that
the threats alone already chilled the atmosphere of free speech or
expression.
V.
By way of epilogue, I note that the Garci tapes have found shelter in
the Internet 48 after the broadcast media lost interest in airing those
tapes, after the newsprint that contained the transcript had dissembled.
The tapes are widely available on the Internet and not only in websites
maintained by traditional media outfits, but also in such media-sharing
sites as Google-owned YouTube, which has at least 20 different files of the
tapes. 49 Internationally popular websites such as the online encyclopedia
Wikipedia have linked to the tapes as well. 50 Then there is the fact that
excerpts of the tapes were remixed and widely distributed as a popular
ringtone for cellular phones.
 Indeed, the dimensions of the issue have long extended beyond the
Philippine mass media companies and the NTC. This issue was hardly
limited to the right of Philippine broadcast media to air the tapes without
sanction from the NTC. It involved the right of any person wherever in the
world situated to possess and disseminate copies of the tape without fear
of reprisal from the Philippine government.
Still, the vitality of the right to free expression remains the highlight
of this case. Care and consideration should be employed in presenting
such claims before the courts, and the hope is for a growing
sophistication and specialization in the litigation of free speech cases.
For all the above, I vote to GRANT the petition against respondent
DOJ Secretary and DISMISS the same insofar as the NTC is concerned.

VELASCO, JR., J., concurring and dissenting:

I concur in the results of the majority opinion penned by Chief

Justice Puno, but only insofar as the NTC aspect of the case is concerned.
The opinion of the Chief Justice upon which this concurrence
hinges is to the effect that the warning issued by the NTC, by way of a
press release, that the continuous airing or broadcast of the "Garci Tapes"
is a violation of the Anti-Wiretapping Law, restricts the freedom of speech
and of the press and constitutes a content-based prior restraint
impermissible under the Constitution. The quality of impermissibility
comes in owing to the convergence and combined effects of the following
postulates, to wit: the warning was issued at the time when the "Garci
Tapes" was newspaper headline and radio/TV primetime material; it was
given by the agency empowered to issue, suspend, or altogether cancel
the certificate of authority of owners or operators of radio or broadcast
media; the chilling effect the warning has on media owners, operators, or
practitioners; and facts are obtaining casting doubt on the proposition
that airing the controversial tape would violate the anti-wiretapping law.
I also agree with the Chief Justice's observation that the prior
restraining warning need not be embodied in a formal order or circular, it
being sufficient that such warning was made by a government agency,
NTC in this case, in the performance of its official duties. Press releases on
a certain subject can rightfully be treated as statements of official position
or policy, as the case may be, on such subject.
To me, the facts on record are sufficient to support a conclusion
that the press release issued by NTC with all the unmistakable threat
embodied in it of a possible cancellation of licenses and/or the filing of
criminal cases against erring media owners and practitioners
constitutes a clear instance of prior restraint. Not lost on this writer is the
fact that five (5) days after it made the press release in question, NTC
proceeded to issue jointly with the Kapisanan ng mga Broadcasters sa
Pilipinas (KBP) another press release to clarify that the earlier one issued
was not intended to limit or restrain press freedom. With the view I take
of the situation, the very fact that the KBP agreed to come up with the
joint press statement that "NTC did not issue any [Memorandum Circular]
or order constituting a restraint of press freedom or censorship" tends to
prove, rather than disprove, the threatening and chilling tone of its June
11, 2005 press release. If there was no prior restraint from the point of
view of media, why was there a need to hold a dialogue with KBP and then
issue a clarifying joint statement?
Moreover, the fact that media owners, operators, and practitioners
appeared to have been frozen into inaction, not making any visible effort
to challenge the validity of the NTC press statement, or at least join the
petitioner in his battle for press freedom, can only lead to the conclusion
that the chilling effect of the statement left them threatened.
The full ventilation of the issues in an oral argument would have
been ideal, particularly so since TV and radio operators and owners opted
not to intervene nor were asked to give their comment on the chilling
effect of the NTC press statement. Nonetheless, I find the admissions in
the pleadings and the attachments thereto to be more than sufficient to
judiciously resolve this particular issue. The contents of the June 11, 2005
press release eloquently spoke for themselves. The NTC "warning" is in
reality a threat to TV and radio station owners and operators not to air or
broadcast the "Garci Tapes" in any of their programs. The four corners of
the NTC's press statement unequivocally reveal that the "Garci Tapes"
may not be authentic as they have yet to be duly authenticated. It is a
statement of fact upon which the regulatory body predicated its warning
that its airing or broadcast will constitute false or misleading
dissemination of information that could result in the suspension or
cancellation of their respective licenses or franchises. The press statement
was more than a mere notice of a possible suspension. Its crafting and
thrust made it more of a threat a declaration by the regulatory body
that the operators or owners should not air or broadcast the tapes.
Otherwise, the menacing portion on suspension or cancellation of their
franchises to operate TV/radio station will be implemented. Indeed, the
very press statement speaks eloquently on the chilling effect on media.
One has to consider likewise the fact that the warning was not made in an
official NTC circular but in a press statement. The press statement was
calculated to immediately inform the affected sectors, unlike the warning
done in a circular which may not reach the intended recipients as fast.
In all, the NTC statement coupled with other circumstances convince
this writer that there was indeed a chilling effect on the TV/radio owners,
in particular, and media, in general.
While the Court has several pieces of evidence to fall back on and
judiciously resolve the NTC press release issue, the situation is different
with respect to the Department of Justice (DOJ) warning issue. What is at
hand are mere allegations in the petition that, on June 8, 2005,
respondent DOJ Secretary Raul Gonzales warned reporters in possession
of copies of the compact disc containing the alleged "Garci" wiretapped
conversation and those broadcasting or publishing its contents that they
could be held liable under the Anti-Wiretapping Act, adding that persons
possessing or airing said tapes were committing a continuing offense,
subject to arrest by anybody who had personal knowledge of the crime
committed or in whose presence the crime was being committed. 1
There was no proof at all of the possible chilling effect that the
alleged statements of DOJ Secretary Gonzales had on the reporters and
media practitioners. The DOJ Secretary, as head of the prosecution arm of
the government and lead administrator of the criminal justice system
under the Administrative Code 2 is, to be sure, impliedly empowered to
issue reminders and warnings against violations of penal statutes. And it
is a known fact that Secretary Gonzales had issued, and still issues, such
kind of warnings. Whether or not he exceeded his mandate under
 premises is unclear. It is for this main reason that I found the prior-
restraint issue in the DOJ aspect of the case not yet ripe for adjudication.
I, therefore, register my concurrence with the ponencia of Chief
Justice Reynato S. Puno insofar as it nullifies the official statement made
by respondent NTC on June 11, 2005, but dissent, with regrets, with
respect to the nullification of the June 8, 2005 official statement of
respondent Secretary of Justice.
||| (Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL 155-297)

[G.R. No. 153675. April 19, 2007.]

GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE

REGION, represented by the Philippine Department of
Justice, petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and
JUAN ANTONIO MUOZ, respondents.

DECISION

SANDOVAL-GUTIERREZ, J : p

For our resolution is the instant Petition for Certiorari under Rule 65 of the
1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders
of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent
Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1)
the Order dated December 20, 2001 allowing Juan Antonio Muoz, private
respondent, to post bail; and (2) the Order dated April 10, 2002 denying the
motion to vacate the said Order of December 20, 2001 filed by the
Government of Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition alleges that
both Orders were issued by respondent judge with grave abuse of discretion
amounting to lack or excess of jurisdiction as there is no provision in the
Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British
Crown Colony of Hong Kong signed an "Agreement for the Surrender of
Accused and Convicted Persons." It took effect on June 20, 1997. HESAIT

On July 1, 1997, Hong Kong reverted back to the People's Republic of China
and became the Hong Kong Special Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with
three (3) counts of the offense of "accepting an advantage as agent," in
violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201
of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong. On August 23, 1997
and October 25, 1999, warrants of arrest were issued against him. If
convicted, he faces a jail term of seven (7) to fourteen (14) years for each
charge.
On September 13, 1999, the DOJ received from the Hong Kong Department
of Justice a request for the provisional arrest of private respondent. The DOJ
then forwarded the request to the National Bureau of Investigation (NBI)
which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest
against private respondent. That same day, the NBI agents arrested and
detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a
petition for certiorari, prohibition and mandamus with application for
preliminary mandatory injunction and/or writ of habeas corpus questioning
the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring
the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on
certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court
of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition
of the DOJ and sustaining the validity of the Order of Arrest against private
respondent. The Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special
Administrative Region filed with the RTC of Manila a petition for the
extradition of private respondent, docketed as Civil Case No. 99-95733,
raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed in the same case a petition for bail which was
opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order
denying the petition for bail, holding that there is no Philippine law granting
bail in extradition cases and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further
hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided
by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration
of the Order denying his application for bail. This was granted by respondent
judge in an Order dated December 20, 2001 allowing private respondent to
post bail, thus:CaDATc

In conclusion, this Court will not contribute to accused's further

erosion of civil liberties. The petition for bail is granted subject to the
following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused
hereby undertakes that he will appear and answer the issues
raised in these proceedings and will at all times hold himself
amenable to orders and processes of this Court, will further
appear for judgment. If accused fails in this undertaking, the
cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and
discretion of filing its own motion for hold departure order
before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors
handling this case or if they so desire to the nearest office, at
any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of
accused, real and personal, be filed with this Court soonest,
 with the condition that if the accused flees from his
undertaking, said assets be forfeited in favor of the
government and that the corresponding lien/annotation be
noted therein accordingly.
SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above
Order, but it was denied by respondent judge in his Order dated April 10,
2002.
Hence, the instant petition. Petitioner alleged that the trial court committed
grave abuse of discretion amounting to lack or excess of jurisdiction in
admitting private respondent to bail; that there is nothing in the Constitution
or statutory law providing that a potential extraditee has a right to bail, the
right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right
to bail guaranteed under the Bill of Rights extends to a prospective
extraditee; and that extradition is a harsh process resulting in a prolonged
deprivation of one's liberty. HCaIDS

Section 13, Article III of the Constitution provides that the right to bail shall
not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction.

Nonetheless, this is not the first time that this Court has an occasion to
resolve the question of whether a prospective extraditee may be granted
bail.
In Government of United States of America v. Hon. Guillermo G. Purganan,
Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario
Batacan Crespo, 1 this Court, speaking through then Associate Justice Artemio
V. Panganiban, later Chief Justice, held that the constitutional provision on
bail does not apply to extradition proceedings. It is "available only in criminal
proceedings," thus:
. . . . As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4,
Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the
presumption of innocence in favor of every accused who should not
be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable
doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per
Fernando, J., later CJ). It follows that the constitutional provision on
bail will not apply to a case like extradition, where the presumption
of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall
not be impaired even when the privilege of the writ of habeas corpus
is suspended" does not detract from the rule that the constitutional
right to bail is available only in criminal proceedings. It must be
noted that the suspension of the privilege of the writ of habeas
corpus finds application "only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion"
(Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the
constitutional provision on bail merely emphasizes the right to bail in
criminal proceedings for the aforementioned offenses. It cannot be
taken to mean that the right is available even in extradition
proceedings that are not criminal in nature. ScTIAH

At first glance, the above ruling applies squarely to private respondent's case.
However, this Court cannot ignore the following trends in international law:
(1) the growing importance of the individual person in public international
law who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international
sphere; (3) the corresponding duty of countries to observe these universal
human rights in fulfilling their treaty obligations; and (4) the duty of this
Court to balance the rights of the individual under our fundamental law, on
one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a subject
of international law is now taking root. The vulnerable doctrine that the
subjects of international law are limited only to states was dramatically
eroded towards the second half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the unprecedented spectacle
of individual defendants for acts characterized as violations of the laws of
war, crimes against peace, and crimes against humanity. Recently, under the
Nuremberg principle, Serbian leaders have been persecuted for war crimes
and crimes against humanity committed in the former Yugoslavia. These
significant events show that the individual person is now a valid subject of
international law.

On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human rights.
Thus, on December 10, 1948, the United Nations General Assembly adopted
the Universal Declaration of Human Rights in which the right to life, liberty
and all the other fundamental rights of every person were proclaimed. While
not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of Prisons, 2 this Court,
in granting bail to a prospective deportee, held that under the
Constitution, 3 the principles set forth in that Declaration are part of
the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines
signed and ratified. Fundamental among the rights enshrined therein are the
rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in Section
II, Article II of our Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for human rights." The
Philippines, therefore, has the responsibility of protecting and promoting the
right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings before a court, to
enable it to decide without delay on the legality of the detention and order
their release if justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such remedies
which safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail. While this Court in Purganan limited the
exercise of the right to bail to criminal proceedings, however, in light of the
various international treaties giving recognition and protection to human
rights, particularly the right to life and liberty, a reexamination of this Court's
ruling in Purganan is in order. caADSE

First, we note that the exercise of the State's power to deprive an individual
of his liberty is not necessarily limited to criminal proceedings. Respondents
in administrative proceedings, such as deportation and quarantine, 4
have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise
of the right to bail to criminal proceedings only. This Court has admitted to
bail persons who are not involved in criminal proceedings. In fact, bail has
been allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance the
obligation of the Philippines under international conventions to uphold
human rights. HDAaIc

The 1909 case of US v. Go-Sioco 5 is illustrative. In this case, a Chinese facing

deportation for failure to secure the necessary certificate of registration was
granted bail pending his appeal. After noting that the prospective deportee
had committed no crime, the Court opined that "To refuse him bail is to treat
him as a person who has committed the most serious crime known to law;"
and that while deportation is not a criminal proceeding, some of the
machinery used "is the machinery of criminal law." Thus, the provisions
relating to bail was applied to deportation proceedings. aEcADH
In Mejoff v. Director of Prisons 6 and Chirskoff v. Commission of Immigration, 7
this Court ruled that foreign nationals against whom no formal criminal
charges have been filed may be released on bail pending the finality of an
order of deportation. As previously stated, the Court in Mejoff relied upon the
Universal declaration of Human Rights in sustaining the detainee's right to
bail.
If bail can be granted in deportation cases, we see no justification why it
should not also be allowed in extradition cases. Likewise, considering that
the Universal Declaration of Human Rights applies to deportation cases,
there is no reason why it cannot be invoked in extradition cases. After
all, both are administrative proceedings where the innocence or guilt of the
person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations of the
Philippines concerning respect for the promotion and protection of human
rights. Under these treaties, the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right to liberty of every
individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition
Law) defines "extradition" as "the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or
government." aSATHE

Extradition has thus been characterized as the right of a foreign power,

created by treaty, to demand the surrender of one accused or convicted of a
crime within its territorial jurisdiction, and the correlative duty of the other
state to surrender him to the demanding state. 8 It is not a criminal
proceeding. 9 Even if the potential extraditee is a criminal, an extradition
proceeding is not by its nature criminal, for it is not punishment for a crime,
even though such punishment may follow extradition. 10 It is sui generis,
tracing its existence wholly to treaty obligations between different nations. 11
It is not a trial to determine the guilt or innocence of the potential
extraditee. 12 Nor is it a full-blown civil action, but one that is merely
administrative in character. 13 Its object is to prevent the escape of a
person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment. 14
But while extradition is not a criminal proceeding, it is characterized by the
following: (a) it entails a deprivation of liberty on the part of the potential
extraditee and (b) the means employed to attain the purpose of
extradition is also "the machinery of criminal law." This is shown by
Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates
the "immediate arrest and temporary detention of the accused" if such
"will best serve the interest of justice." We further note that Section 20 allows
the requesting state "in case of urgency" to ask for the "provisional arrest
of the accused, pending receipt of the request for extradition;" and that
release from provisional arrest "shall not prejudice re-arrest and extradition
of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears
all earmarks of a criminal process. A potential extraditee may be
subjected to arrest, to a prolonged restraint of liberty, and forced to
transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the
length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999,
and remained incarcerated until December 20, 2001, when the trial court
ordered his admission to bail. In other words, he had been detained for
over two (2) years without having been convicted of any crime. By any
standard, such an extended period of detention is a serious deprivation of
his fundamental right to liberty. In fact, it was this prolonged deprivation of
liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from filing a
motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as
that in criminal proceedings. In the latter, the standard of due process is
premised on the presumption of innocence of the accused. As Purganan
correctly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose
of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the
potential extraditee. This is based on the assumption that such extraditee is
a fugitive from justice. 15 Given the foregoing, the prospective extraditee thus
bears the onus probandi of showing that he or she is not a flight risk and
should be granted bail.
The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in
keeping with its treaty obligations, the Philippines should diminish a potential
extraditee's rights to life, liberty, and due process. More so, where these
rights are guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not, therefore,
deprive an extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in
granting or denying bail can neither be the proof beyond reasonable doubt
in criminal cases nor the standard of proof of preponderance of evidence in
civil cases. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given the object
of extradition law which is to prevent the prospective extraditee from fleeing
our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice,
now Chief Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in granting bail
in extradition cases. According to him, this standard should be lower than
proof beyond reasonable doubt but higher than preponderance of evidence.
The potential extraditee must prove by "clear and convincing evidence" that
he is not a flight risk and will abide with all the orders and processes of the
extradition court.cITCAa
In this case, there is no showing that private respondent presented evidence
to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may
be granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial
court to determine whether private respondent is entitled to bail on the basis
of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.
SO ORDERED. CSDTac

(Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No.

|||

153675, [April 19, 2007], 550 PHIL 63-77)

[G.R. No. 194969. October 7, 2015.]

CONVOY MARKETING CORPORATION and/or ARNOLD LAAB,

petitioners, vs. OLIVER B. ALBIA, * respondent.

DECISION

PERALTA, ** J :
p

This is a petition for review on certiorari under Rule 45 of the Rules

of Court, seeking to nullify and set aside the Court of Appeals (CA) Decision
1 dated May 31, 2010 and the Resolution 2 dated December 28, 2010 in
CA-G.R. SP No. 98958.
The factual antecedents, as found by the CA, are as follows:
Based on his sinumpaang salaysay, it appears that the
petitioner Oliver Alvia started working as a common laborer for the
respondent Convoy Marketing, a distributor of bottled wines, liquor
and bottled water, in 2001. He was assigned the job of a pahinante,
or one who loads and unloads cargoes transported to customers
by the delivery vehicles of the company. A year later, he was
promoted to delivery van driver.
 As a driver, he was paid a fixed salary of P290 per trip
regardless of route. The delivery van he drove belonged to the
company which shouldered its maintenance and gasoline costs. He
was on the road from Mondays to Saturdays, observing working
hours that often exceeded the usual 8 hours, and despite his
perseverance, he was not given holiday pay, vacation leave with
pay, service incentive leave pay and 13th month pay.
On July 22, 2004, he did something that cost him his job. He
smelled of liquor upon his arrival from the delivery route. He gave
the explanation that after completing the delivery, he and his two
pahinantes decided to rest a little in a store outside the company
compound. They drank several bottles of beer before going back to
the compound to start loading for the next morning's delivery.
It was, however, reported to the logistics manager, the
respondent Arnold Laab, that he was under the influence of liquor.
As a result, he received his marching orders. In a memo on July 23,
the next day, he was told we regret to inform that management
decided to terminate your delivery agency agreement with Convoy
Marketing Corporation effective July 23, 2004. The petition was
addressed in the communication signed by Laab as a per trip driver
with notice to the HRAD manager, the present-day title for the
company official who supervises the company's rank-and-file, the
personnel manager.
The petitioner did not delay in protesting his dismissal, filing
on July 26, 2004, only days later, a complaint for illegal dismissal
and non-payment of wage benefits. The respondents Convoy
Marketing and Laab joined issue by contending in substance that
the petitioner was not an employee of the company but an
independent contractor, and presenting papers to document it. . . .
The respondents came forward with a series of delivery
agency agreements signed by the petitioner to correspond to
particular periods of service. There are, on record, four of these
agreements relating to the periods November 22, 2002 to April 22,
2003, May 29, 2003 to October 29, 2003, November 11, 2003 to
April 10, 2004, and April 13, 2004 to September 13, 2004. In all
these documents, it was made to appear that the respondent
company would furnish the delivery vehicle and take care of its
maintenance and upkeep and pay the petitioner a fixed per trip fee
 to drive the vehicle according to a schedule prepared by it. The
petitioner, in turn, would post a cash bond of P3,000 to answer for
damages to the vehicle and be responsible for such payments to
the government as SSS premiums and Pag-IBIG contributions. The
agreement ends with this stipulation under no circumstance
shall the driver be deemed an employee of the principal, and the
driver shall not represent himself as an employee of the principal
to any person, it being clearly understood that the driver is an
independent service contractor for a fixed period. CAIHTE

Indeed, at the end of every service period stated in the

contracts, the petitioner was studiedly made to sign a quitclaim and
release in which he acknowledged receiving a certain sum, at most
P5,172.28, in satisfaction of all claims that he may have against the
company, and confirmed the termination of the agreement due to
the expiration of the stated period. . . .
The petitioner signed his last two quitclaims and releases in
April and August 2004. The April 2004 quitclaim saw him receiving
P2,716.42 for releasing the respondents forever from liability in
connection with the contract ending April 10, 2004. When the
petitioner signed the August 2004 quitclaim, on the other hand, his
case against the respondents was already on-going. During the
conference held that month before the Labor Arbiter, the petitioner
was recorded as having admitted that his claim for non-payment of
salaries and refund of the cash bond deposit were already settled.
The minutes of the conference read Non-payment of salaries
and cash bond deposit as per manifestation of the complainant
was already settled. The minutes also stated By agreement of
the parties, case reset on August 24, 2004 at 10 AM.
In the same month, the petitioner executed the quitclaim and
release in connection with the termination of his agreement on July
23, 2004 accepting payment of the sum of P1,805.72. In spite of this
development, the case went on to its conclusion. 3
On January 10, 2006, the Labor Arbiter rendered a Decision 4
dismissing Albia's complaint for lack of merit, thus:
Be it pointed out and emphasized that the record shows that
herein complainant signed a Quitclaim and Release in favor of the
respondent corporation on 19 April 2004. That during one of the
 settings herein (on 17 August 2004), complainant manifested in
open proceedings that his claims for unpaid salaries and cash bond
had already been settled.
Indeed, although waivers[,] releases and quitclaims are
generally looked down with disfavor as the workers concerned
either are unaware of the consequences thereof or have signed the
same under factors tending to vitiate consent, not all waivers and
quitclaims are to be considered invalid. It is to be pointed out that
absent any pellucid showing of the above-mentioned factors or
variables surrounding the execution of said documents, the same
must be deemed valid and binding between and among the
parties.
In the case at bench, there is absolutely nothing on record
tending to show the existence of such factors or variables which
may have the tendency of invalidating or affecting the validity and
binding effect of the quitclaim and release executed by herein
complainant in respondents' favor.
All told, complainant's cause for illegal dismissal must
necessarily fail. 5
Aggrieved, Albia appealed to the National Labor Relations
Commission (NLRC).
On November 28, 2006, the NLRC dismissed the appeal and
affirmed the Labor Arbiter's Decision, thus: DETACa

An examination of the minutes of the August 17, 2004

proceedings indeed shows that the admission by complainant as to
the settlement of his claims merely referred to non-payment of
salaries and refund of cash bond. However, the Quitclaim and
Release executed by the complainant on August 4, 2004 clearly
contained an admission of his engagement as an "independent
service contractor" and the termination of the said contract on July
23, 2004. Such admission of the nature of complainant's work
accords credence to the claim of the respondents that they acted
upon complainant's representation as an independent contractor
as he conducted his own business on his own account and free
from their supervision and control. This is further supported by a
contract otherwise being referred to as a "Delivery Agency
Agreements."
 It is, therefore, incorrect for the complainant to state that the
quitclaim only covered his money claims. Said quitclaim specifically
made reference to the termination of the juridical relationship
between the parties on July 23, 2004 which was the same date
when complainant alleged that he was dismissed from
employment. And, there being no contest raised by the
complainant with respect to the genuineness and due execution of
the said quitclaim, the presumption to that effect accorded to a
public document, it being notarized, mu[s]t be acknowledged. 6
Albia filed a motion for reconsideration which the NLRC denied in a
Resolution 7 dated March 30, 2007.
Unfazed, Albia filed a petition for certiorari before the Court of
Appeals.
On May 31, 2010, the CA reversed and set aside the NLRC's
Resolutions, and ruled as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the assailed NLRC
resolutions of November 28, 2006 and March 30, 2007 are set
aside. The private respondent Convoy Marketing Corporation is
ordered to reinstate the petitioner to his former position and pay
him full backwages from the date of his termination on July 23,
2004 until (sic) payment, 8 plus 10% of the monetary award of
attorney's fees. This case is remanded to the NLRC for computation
of the award.
SO ORDERED. 9
Petitioners filed a motion for reconsideration, but the CA denied it in
a Resolution dated December 28, 2010.
Hence, this petition for review on certiorari wherein petitioners
raised two issues:
I.
WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR IN EXCESS OF JURISDICTION WHEN IT REVERSED THE DECISION
AND RESOLUTION OF BOTH THE HONORABLE LABOR ARBITER AND
THE HONORABLE COMMISSION.
II.
 WITH ALL DUE RESPECT, THE DECISION DATED 31 MAY 2010, AND
THE RESOLUTION DATED 28 DECEMBER 2010, OF THE HONORABLE
COURT OF APPEALS, ARE CONTRARY TO LAW AND WELL-SETTLED
JURISPRUDENCE. 10 aDSIHc

Petitioners insist that Albia was not a regular employee of Convoy,

but merely a contractual one whose services ended upon the expiration of
the period agreed upon. They aver that the activities which he was called
upon to undertake are not necessary and/or desirable in the company
business. They point out that Albia was only an on-call driver who did not
have to report for work every day, but only when excess deliveries could
no longer be made by Convoy's fifteen (15) regular drivers; that he was
not even included in the company payroll because he was paid on a per
trip basis; and that Convoy did not have control over him and his helpers.
To substantiate their claim that Albia was a mere contractual
employee of Convoy, petitioners presented the affidavit of Ofelia B.
Miranda, Convoy's Human Resources Administration Manager, and the
Delivery Agency Agreements (For Driver) 11 executed between him and
Convoy. Stating that such agreements are valid fixed-period employment
contracts, they assert that Albia knowingly and voluntarily entered into
them, without any force, duress or improper pressure or moral
dominance brought upon him.
Petitioners also contend that Albia was dismissed for serious
misconduct after admittedly having been caught under the influence of
alcohol while in the discharge of his official functions.
Petitioners further argue that the quitclaims and releases executed
by Albia on various occasions are valid and binding, and the fact that he
executed one of such quitclaims after he had filed the illegal dismissal
complaint on July 26, 2004 only shows that he was not forced to sign it nor
was his consent thereto vitiated. Moreover, not having assailed the
genuineness and authenticity of such quitclaim, Albia's bare allegation
that he was constrained to sign it because he was in dire need of money
and employment, will not suffice to invalidate the same.ATICcS

Petitioners fault the CA for not giving weight to the fact that the
quitclaim was voluntarily executed by Albia after he filed an illegal
dismissal complaint. They argue that the issue of whether or not he is an
employee of Convoy should have been laid to rest, since the validity of the
quitclaim where he had admitted to be a mere independent contractor,
was upheld by the Labor Arbiter and the NLRC. Noting that Albia even
manifested in the proceedings before the Labor Arbiter that his claim for
unpaid salaries and cash bond had already been settled, they claim that
such act shows that he signed the quitclaim voluntarily and with the
intention of fully discharging Convoy from any and all of his claims. In
support of their contentions, they invoke the principle that factual findings
of the NLRC affirming those of the Labor Arbiter both bodies being
deemed to have acquired expertise in matters within their jurisdictions
when supported by evidence on record, are accorded respect if not
finality and are considered binding on the CA.
The core issues are: (1) whether Albia is a regular or a fixed-term
employee of Convoy; (2) whether he was dismissed for a just cause; and
(3) whether the quitclaims and releases he executed are valid.
The petition lacks merit.
It is well settled that the Court is not a trier of facts, and the scope of
its authority under Rule 45 of the Rules of Court is confined only to errors
of law and does not extend to questions of fact, which are for labor
tribunals to resolve. 12 However, the rule is not cast in stone and admits of
recognized exceptions, such as when the factual findings and conclusion
of the labor tribunals are contradictory or inconsistent with those of the
CA. 13 When there is such a variance in the factual findings, as in this case,
it is incumbent upon the Court to re-examine the facts. 14
On the first issue, it bears emphasis that the existence of an
employer-employee relationship cannot be negated by expressly
repudiating it in a contract and providing therein that the employee is an
independent contractor when the facts clearly show otherwise. 15 This is
because the employment status of a person is defined and prescribed by
law and not by what the parties say it should be. 16 Article 280 of the Labor
Code, as amended, pertinently provides:
Art. 280. Regular and casual employment. The provisions
of written agreement to the contrary notwithstanding and
regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the
 employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of
the employer, except where the employment has been fixed for a
specific project or undertaking the completion or termination of
which has been determined at the time of the engagement of the
employee or where the work or service to be performed is seasonal
in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not
covered by the preceding paragraph: Provided, That any employee
who has rendered at least one year of service, whether such
service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed
and his employment shall continue while such activity exists.
17

Contrary to petitioners' claim, the fact that Convoy has fifteen (15)
regular drivers only underscores that indeed, having been hired as a
driver, Albia was engaged to perform an activity which is necessary or
desirable in the usual company business of marketing and distribution of
bottled wines, liquor and bottled water. No less than Convoy's daily trip
summary breakdowns 18 contradict petitioners' allegation that Albia is
only an on-call driver who does not have to report for work daily.
That Albia has become a regular employee is evident from the
Delivery Agency Agreements (For Driver) 19 executed for the periods of
November 22, 2002 to April 22, 2003, May 29, 2003 to October 29, 2003,
November 11, 2003 to April 10, 2004, and April 13, 2004 to September 13,
2004 which indicate that he had rendered at least one year of broken
service with respect to the same activity in which he was employed from
the time he was hired as a driver on November 22, 2002 until he was
terminated on July 23, 2004. TIADCc

The Court cannot likewise sustain petitioners' claim that Albia is an

independent contractor. The test of independent contractorship is
whether one claiming to be an independent contractor has contracted to
do the work according to his own methods and without being subject to
the control of the employer, except only as to the results of the work. 20
The criteria in determining the existence of an independent and
permissible contractor relationship are as follows:
 . . . [W]hether or not the contractor is carrying on an independent
business; the nature and extent of the work; the skill required; the
term and duration of the relationship; the right to assign the
performance of a specified piece of work; the control and
supervision of the work to another; the employer's power with
respect to the hiring, firing and payment of the contractor's
workers; the control of the premises; the duty to supply the
premises, tools, appliances, materials, and labor; and the mode,
manner and terms of payment. 21
Applying the foregoing criteria, Albia cannot be considered as in
independent contractor. There is no dispute that it was Convoy who
engaged the services of Albia as a driver without the intervention of a
third party, paid his wages on a per trip basis, and abruptly terminated his
services the next day after admitting to have consumed three bottles of
beer after finishing his deliveries on July 22, 2004. There is, likewise, no
question that Convoy controls or has reserved its right to control Albia's
conduct, not only as to the result of his work but also as to the means and
methods by which such result is to be accomplished. 22 This is evident
from the following express provisions of the Delivery Agency Agreements
(For Driver) 23 executed between Convoy and Albia:
1. The truck/s being driven by Albia belongs to Convoy;
2. The gasoline and fuel expenses, maintenance, repair and spare
parts for the upkeep of the delivery truck, provided they are not
abnormal and patently disproportionate to his gross sales for the
month, are for the account of Convoy; but if the expenses and repair
on the vehicle are caused by his carelessness or that of his helper,
then he must assume full responsibility therefor;
3. The truck assigned to him shall be used solely and exclusively to
carry the products of Convoy, and that he cannot directly or
indirectly handle/deliver products other than those which it is
handling; and
4. Any violation of the said agreement, and any act of Albia against
Convoy, its officers, employees and properties which shall result to
harm or damage, directly or indirectly, shall be constituted as a
violation thereof and shall give the company the right to unilaterally
terminate him.
 Further, as aptly ruled by the CA:
The petitioner [Albia] is not an independent contractor of the
respondent [Convoy] but only a regular rank-and-file employee. He
has been hired for a fixed wage, and the means and methods of his
work are absolutely controlled by the respondent which exercises
full power to discipline and terminate him. He has none of the
qualifications of an independent contractor. He is only a paid hand.
He has no independent resources to conduct the business of
contracting, and, in fact, works for no one else but the respondent.
The vehicle he operates belongs and is maintained by the
respondent, and his pahinantes are the respondents' admitted
employees. 24
Neither could Albia be deemed a fixed-term contractual employee,
as the Delivery Agency Agreements executed between him and Convoy
fall short of the requisites for such fixed-term contracts to be valid.
Considered to be legitimate under the Labor Code, 25 fixed-term
employment contracts terminate by their own terms at the end of a
definite period. 26 The fact that the service rendered by the employees is
usually necessary and desirable in the business operations of the
employer will not impair the validity of such contracts. 27 For, the decisive
determinant in the term employment is not the activities that the
employee is called to perform, but the day certain agreed upon by the
parties for the commencement and termination of their employment
relationship. 28AIDSTE

Aware of the possible abuse of fixed-term employment contracts,

the Court stressed in Brent School, Inc. v. Zamora that where from the
circumstances it is apparent that the periods have been imposed to
preclude acquisition of tenurial security by the employee, they should be
struck down as contrary to public policy or morals. 29 The Court thus laid
down indications or criteria under which the term "employment" cannot
be said to be in circumvention of the law on security of tenure, namely:
1) The fixed period of employment was knowingly and voluntarily
agreed upon by the parties without any force, duress, or
improper pressure being brought to bear upon the employee
and absent any other circumstances vitiating his consent; or
 2) It satisfactorily appears that the employer and the employee dealt
with each other on more or less equal terms with no moral
dominance exercised by the former or the latter. 30
In GMA Network, Inc. v. Pabriga, 31 the Court stated that "these
indications, which must be read together, make the Brent doctrine
applicable only in a few special cases wherein the employer and employee
are on more or less in equal footing in entering into the contract. The
reason for this is evident: when a prospective employee, on account of
special skills or market forces, is in a position to make demands upon the
prospective employer, such prospective employee needs less protection
than the ordinary worker. Lesser limitations on the parties' freedom of
contract are thus required for the protection of the employee." 32
Neither of the said two indications was proven in this case.
Petitioners failed to show that Convoy and Albia dealt with each other on
more or less equal terms with no moral dominance whatever being
exercised by the former on the latter who, as a plain wage earner with low
educational attainment, having only reached grade 4 in the elementary
level, 33 cannot be presumed to be fully aware of the effects of the pro
forma and English-written Delivery Agency Agreements (For Driver). 34
On the second issue, the Court agrees with the CA that Albia was
dismissed without a just cause.
While an employee's right to security of tenure does not give him
such a vested right to his position, it bears stressing that employment is
not merely a contractual relationship. In the life of most workers, it
assumes the nature of a property right which may spell the difference of
whether or not a family will have food on their table, roof over their heads
and education for their children. 35 In termination cases, therefore, the
burden of proof rests upon the employer to show that the dismissal is for
a just and valid cause, and failure to do so would necessarily mean that
the dismissal was illegal. 36 For an employee's dismissal to be valid, it must
comply with both procedural and substantive due process, viz.: 37
For a worker's dismissal to be considered valid, it must
comply with both procedural and substantive due process. The
legality of the manner of dismissal constitutes procedural due
 process, while the legality of the act of dismissal constitutes
substantive due process.
Procedural due process in dismissal cases consists of the
twin requirements of notice and hearing. The employer must
furnish the employee with two written notices before the
termination of employment can be effected: (1) the first notice
apprises the employee of the particular acts or omissions for which
his dismissal is sought; and (2) the second notice informs the
employee of the employer's decision to dismiss him. Before the
issuance of the second notice, the requirement of a hearing must
be complied with by giving the worker an opportunity to be heard.
It is not necessary that an actual hearing be conducted.
Substantive due process, on the other hand, requires that
dismissal by the employer be made under a just or authorized
cause under Articles 282 to 284 of the Labor Code. 38
Serious misconduct is a valid ground for termination of the services
of an employee as provided for under Article 282 (a) of the Labor Code, as
amended, to wit:
ART. 282. Termination by employer. An employer may
terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his employer
or representative in connection with his work; . . .
AaCTcI

Misconduct is defined as the transgression of some established and

definite rule of action, a forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not mere error in judgment. 39
In order for a misconduct to justify dismissal, these requisites must be
present: (1) it must be serious; (2) it must relate to the performance of the
employee's duties; and (3) it must show that the employee has become
unfit to continue working for the employer. 40 Petitioners failed to
establish these requisites.
It must be noted that Albia's termination came as a result of a lone
incident on July 22, 2004 when he admitted that after finishing their
deliveries, he and his helpers decided to drink bottles of beer at a store
outside the company compound before returning to work to finish
loading the deliveries for the next day. While an employer is given a wide
latitude of discretion in managing its own affairs, in the promulgation of
policies, rules and regulations on work-related activities of its employees,
and in the imposition of disciplinary measures on them, the exercise of
disciplining and imposing appropriate penalties on erring employees must
be practiced in good faith and for the advancement of the employer's
interest and not for the purpose of defeating or circumventing the rights
of employees under special laws or under valid agreements. 41 While it is
true that under Convoy's code on employee discipline, the penalty for
"performing work while under the influence of liquor" 42 is "suspension to
dismissal depending upon the gravity of the offense," 43 nothing in the
records would support the imposition of the supreme penalty of dismissal
against Albia. Having finished his driving duty when he was reported at
about 6:20 p.m. 44 of July 22, 2004 to have admitted drinking beer, Albia
cannot be faulted with gross misconduct on account of "the danger that
he may cause to himself, to his passengers and to the goods he is
transporting." 45 Thus, the Court finds no compelling reason to disturb the
CA ruling:
It is also clear that there was no valid grounds for the
termination of petitioner. His misconduct was not gross. He was
not guilty of any seriously offensive conduct, nor was there any
untoward incident that occurred. The penalty of dismissal was
certainly not commensurate to the infraction committed. It has not
been shown that he has by his conduct become unfit to continue
working for the respondents. 46
Aside from its failure to accord Albia his right to substantive due
process, petitioners were also unable to show that his right to procedural
due process was observed. In Realda v. New Age Graphics, Inc., 47 the Court
explained the manner by which the procedural due requirements of due
process can be satisfied:
To clarify, the following should be considered in terminating
the services of employees:
(1) The first written notice to be served on the employees
should contain the specific causes or grounds for termination
against them, and a directive that the employees are given the
opportunity to submit their written explanation within a reasonable
 period. "Reasonable opportunity" under the Omnibus Rules means
every kind of assistance that management must accord to the
employees to enable them to prepare adequately for their defense.
This should be construed as a period of at least five (5) calendar
days from receipt of the notice to give the employees an
opportunity to study the accusation against them, consult a union
official or lawyer, gather data and evidence, and decide on the
defenses they will raise against the complaint. Moreover, in order
to enable the employees to intelligently prepare their explanation
and defenses, the notice should contain a detailed narration of the
facts and circumstances that will serve as basis for the charge
against the employees. A general description of the charge will not
suffice. Lastly, the notice should specifically mention which
company rules, if any, are violated and/or which among the
grounds under Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should
schedule and conduct a hearing or conference wherein the
employees will be given the opportunity to: (1) explain and clarify
their defenses to the charge against them; (2) present evidence in
support of their defenses; and (3) rebut the evidence presented
against them by the management. During the hearing or
conference, the employees are given the chance to defend
themselves personally, with the assistance of a representative or
counsel of their choice. Moreover, this conference or hearing could
be used by the parties as an opportunity to come to an amicable
settlement.
(3) After determining that termination of employment is
justified, the employers shall serve the employees a written notice
of termination indicating that: (1) all circumstances involving the
charge against the employees have been considered; and (2)
grounds have been established to justify the severance of their
employment. EcTCAD

Convoy terminated Albia without the requisite first notice apprising

him of the particular acts or omissions for which his dismissal is sought,
as well as the requisite hearing or conference. Convoy thus failed to afford
Albia with a reasonable opportunity to be heard and defend himself when
he was issued a termination letter on July 23, 2004, the following day after
he admitted having consumed bottles of beer after finishing his driving
duty before the security department and the logistics manager, Laab.
On the third issue, the Court finds that the quitclaims and releases
Albia executed are invalid.
Cases abound where the Court gave effect to quitclaims executed
by the employees when the employer is able to prove the following
requisites, to wit: (1) the employee executes a deed of quitclaim
voluntarily; (2) there is no fraud or deceit on the part of any of the parties;
(3) the consideration of the quitclaim is credible and reasonable; and (4)
the contract is not contrary to law, public order, public policy, morals or
good customs, or prejudicial to a third person with a right recognized by
law. 48
In this case, however, petitioners failed to prove that the P1,805.72
consideration for the Quitclaim and Release 49 dated August 4, 2004 is
credible and reasonable vis--vis what Albia should receive in full as a
regular employee who was illegally dismissed. The same holds true with
respect to the Quitclaim and Release 50 dated November 21, 2003 and
April 19, 2004 with considerations of P5,712.28 and P2,716.42,
respectively. That all the said waivers and quitclaims are agreements
between two (2) intelligent parties who are, more or less, in the same
footing cannot also be sustained because of Albia's low educational
attainment, having finished only grade 4 in the elementary level, 51 as well
as his status as a plain wage earner.
Moreover, all the quitclaims and releases executed by Albia upon
the termination of the five-month Delivery Agency Agreements (For Driver)
52 are contrary to law and public policy, as they preclude him from
becoming a regular employee and acquiring tenurial security. As correctly
observed by the CA:
Indeed, at the end of every service period stated in the
contracts, the petitioner [Albia] was studiedly made to sign a
quitclaim and release in which he acknowledged receiving a certain
sum, at most P5,712.28, in satisfaction of all claims that he may
have against the company, and confirmed the termination of the
agreement due to the expiration of the stated period. On overview,
the quitclaim was nothing but a formality, because as soon as one
 delivery agency agreement terminates, another is signed to replace
it and reflect the continuity of the petitioner's service. 53
It may not be amiss to state that a deed of release or quitclaim, like
those executed between Convoy and Albia, does not bar an employee
from demanding benefits to which he is legally entitled. Employees who
received their separation pay are, in fact, not barred from contesting the
legality of their dismissal, and the acceptance of such benefits would not
amount to estoppel. As held in Sari-Sari Group of Companies v. Piglas
Kamao, et al.: 54
Acceptance of those benefits would not amount to estoppel.
The reason is plain. Employer and employee, obviously, do not
stand on the same footing. The employer drove the employee to
the wall. The latter must have to get hold of money. Because, out of
job, he had to face the harsh necessities of life. He thus found
himself in no position to resist money proffered. His, then, is a case
of adherence, not of choice. . . . 55
Having been illegally dismissed from work, Albia is entitled to
reinstatement without loss of seniority rights, and other privileges, as well
as to full backwages, inclusive of allowances, and to other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement. 56
Backwages include the whole amount of salaries plus all other benefits
and bonuses and general increases to which Albia would have been
normally entitled had he not been illegally dismissed, 57 such as the
legally-mandated Emergency Cost of Living Allowance (ECOLA), 13th month
pay, and service incentive leave pay, as well as the unpaid holiday pay for
such holidays that he worked based on Convoy's daily trip summary
breakdowns. 58 Hence, the Court upholds the CA in ordering Convoy to
reinstate Albia and pay his full backwages from the date of his termination
on July 23, 2004 until his actual reinstatement.
Finally, the Court sustains the CA in holding Albia entitled to
attorney's fees in the amount of ten percent (10%) of the total monetary
award, pursuant to Article 111 59 of the Labor Code. Where an employee
was forced to litigate and incur expenses to protect his rights and interest,
the award of such fees is legally and morally justifiable. 60
 WHEREFORE, the petition is DENIED. The Court of Appeals Decision
dated May 31, 2010 and the Resolution dated December 28, 2010 in CA-
G.R. SP No. 98958, are AFFIRMED.
SO ORDERED.
||| (Convoy Marketing Corp. v. Albia, G.R. No. 194969, [October 7, 2015])

[G.R. No. 193420. October 14, 2015.]

7107 ISLANDS PUBLISHING, INC., petitioner, vs. THE HOUSE

PRINTERS CORPORATION, respondent.

DECISION

BRION, * J :
p

This petition for review on certiorari seeks to reverse the 10

November 2009 1 and 17 August 2010 2 resolutions of the Court of
Appeals (CA) in CA-G.R. UDK-SP No. 6325. The CA dismissed the
petitioner's petition for certiorari challenging the 30 January 2009 and 29
June 2009 orders of the Regional Trial Court of Quezon City (RTC), Branch
221, in Civil Case No. Q-06-58473. 3 This RTC ruling, in turn, denied its
motion to dismiss.
ANTECEDENTS
On 25 July 2006, respondent The House Printers Corporation (House
Printers) filed a complaint for a sum of money and damages against the
7107 Islands Publishing, Inc. (7107 Publishing) before the RTC. House
Printers alleged that 7107 Publishing refused to pay for PHP1,178,700.00
worth of magazines it purchased in 2005. The complaint was docketed as
Civil Case No. Q-06-58473.
On 1 August 2006, Manuel S. Paguyo, Sheriff IV, served the
summons and a copy of the complaint on 7107 Publishing through its
Chief Accountant Laarni Milan. Sheriff Paguyo explained on his return that
the President and the in-house counsel were not at the office when he
arrived so he served the summons on the highest ranking officer.
 On 16 August 2006, 7107 Publishing filed a motion to dismiss on the
ground that the RTC failed to acquire jurisdiction over its person. 7107
Publishing argued that if the defendant was a corporation, service of
summons could only be made on the president, managing partner,
general manager, corporate secretary, treasurer, or in-house counsel
pursuant to Rule 14, Section 11 of the Rules of Court. Petitioner further
argued that this was an exclusive list, citing E.B. Villarosa & Partner Co., Ltd.
v. Benito 4 and Delta Motor Sales Corporation v. Mangosing. 5
On 4 September 2006, House Printers filed its opposition to
petitioner's motion to dismiss. House Printers argued that there was
substantial compliance with the requirement of service, citing G&G
Trading Corporation v. Court of Appeals 6 and Millennium Industrial
Commercial Corporation v. Tan. 7
On 30 January 2009, the RTC denied the motion to dismiss for lack
of merit. The RTC held that there was substantial compliance with the rule
on service of summons and directed the petitioner to file its answer within
five days from receipt of the denial. caITAC

On 16 March 2009, 7107 Publishing moved for the reconsideration

of the denial. It reiterated that Rule 14, Section 11 is an exclusive list that
requires strict compliance.
On 29 June 2009, the RTC denied the motion for reconsideration. It
held that although a Chief Accountant was not included in the
enumeration under Rule 14, Section 11, Chief Accountant Milan was able
to turn over the summons and the complaint to the defendants;
therefore, the purpose of Rule 14 was attained. The petitioner received a
copy of the order on 4 August 2009.
On 2 October 2009, 7107 Publishing filed a petition for certiorari
before the CA against the 30 January 2009 and 29 June 2009 orders of the
RTC. The petition was filed by registered mail.
On 7 October 2009, 7107 Publishing manifested before the CA that
it had filed a petition for certiorari on 2 October 2009.
On 10 November 2009, the CA dismissed the petition outright
because the petitioner failed to pay the docket and the other legal fees.
 On 18 December 2009, 7107 Publishing moved for the
reconsideration of the dismissal. It explained that: (1) it was constrained
to file the petition by registered mail on 2 October 2009, prior to the last
day of the reglementary period; (2) on 7 October 2009, petitioner's
counsel went to the RTC to give an advance copy of the petition and pay
the docket and other lawful fees; (3) however, the court personnel at the
receiving section refused to accept payment; (4) instead, the court
personnel instructed the petitioner to file a manifestation that the petition
was filed by registered mail then wait until the CA receives and dockets
the petition, to avoid double docketing and double payment; (5) the
petitioner complied and was instructed by the Civil Cases Section to wait
for a notice from the CA to pay the docket fees; (6) petitioner relied in
good faith on the court personnel's advice, but the notice to pay never
arrived; (7) instead, the petitioner received the 10 November 2009 order
of dismissal on 14 December 2009. The petitioner prayed for the CA to
allow him to pay the required fees and to give due course to the petition.
On 17 August 2010, the CA denied reconsideration. It held that even
if the court personnel refused to accept the petitioner's tender of
payment, it could have simply paid the required fees by postal money
order.
On 8 October 2010, 7107 Publishing filed the present petition for
review on certiorari.
THE PETITION
The petitioner argues: (1) that the RTC committed grave abuse of
discretion when it denied its motion to dismiss because the RTC did not
acquire jurisdiction over its person; and (2) that the CA was not justified in
dismissing its petition for certiorari for nonpayment of the required fees
because of the court personnel's refusal to accept its tender of payment
on four separate occasions. The petitioner begs this Court to brush aside
any procedural barriers and give due course to its petition.
In its Comment dated 16 May 2011, the respondent maintains: (1)
that the petitioner did not suffer any undue prejudice from the service of
summons on its accountant; and (2) that the petitioner failed to
substantiate its allegations that court personnel refused his tender of
payment four times.
OUR RULING
We deny the petition for lack of merit.
Rule 14 of the Rules of Court provides:
SEC. 11. Service upon domestic private juridical entity. When the
defendant is a corporation, partnership or association organized
under the laws of the Philippines with a juridical personality, service
may be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel.
(emphasis supplied)
We have long established that this enumeration is an exclusive list
under the principle of expresso unius est exclusio alterius. 8 Under the
present Rules of Court, the rule of substantial compliance invoked by the
respondent is no longer applicable. To quote our decision in Sps. Mason v.
Court of Appeals:ICHDca

The question of whether the substantial compliance rule is still

applicable under Section 11, Rule 14 of the 1997 Rules of Civil
Procedure has been settled in Villarosa which applies squarely to
the instant case. In the said case, petitioner E.B. Villarosa & Partner
Co. Ltd. (hereafter Villarosa) with principal office address at 102
Juan Luna St., Davao City, and with branches at 2492 Bay View
Drive, Tambo, Paraaque, Metro Manila, and Kolambog, Lapasan,
Cagayan de Oro City, entered into a sale with development
agreement with private respondent Imperial Development
Corporation. As Villarosa failed to comply with its contractual
obligation, private respondent initiated a suit for breach of contract
and damages at the Regional Trial Court of Makati. Summons,
together with the complaint, was served upon Villarosa through its
branch manager at Kolambog, Lapasan, Cagayan de Oro City.
Villarosa filed a Special Appearance with Motion to Dismiss on the
ground of improper service of summons and lack of jurisdiction.
The trial court denied the motion and ruled that there was
substantial compliance with the rule, thus, it acquired jurisdiction
over Villarosa. The latter questioned the denial before us in its
petition for certiorari. We decided in Villarosa's favor and declared
 the trial court without jurisdiction to take cognizance of the case.
We held that there was no valid service of summons on Villarosa as
service was made through a person not included in the
enumeration in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure, which revised the Section 13, Rule 14 of the 1964 Rules
of Court. We discarded the trial court's basis for denying the
motion to dismiss, namely, private respondents' substantial
compliance with the rule on service of summons, and fully agreed
with petitioners' assertions that the enumeration under the new
rule is restricted, limited and exclusive, following the rule in
statutory construction that expressio unios est exclusio alterius. Had
the Rules of Court Revision Committee intended to liberalize the
rule on service of summons, we said, it could have easily done so
by clear and concise language. Absent a manifest intent to
liberalize the rule, we stressed strict compliance with Section 11,
Rule 14 of the 1997 Rules of Civil Procedure.
Neither can herein petitioners invoke our ruling in Millenium to
support their position for said case is not on all fours with the
instant case. We must stress that Millenium was decided when
the 1964 Rules of Court were still in force and effect, unlike the
instant case which falls under the new rule. Hence, the cases
cited by petitioners where we upheld the doctrine of
substantial compliance must be deemed overturned by
Villarosa, which is the later case. 9 (emphasis supplied)
Therefore, the petitioner's argument is meritorious; service of
summons on an officer other than those enumerated in Section 11 is
invalid. 10
However, although the petition before the CA was meritorious, the
petitioner failed to pay the required docket fees and other legal fees. The
payment of docket fees within the prescribed period is mandatory for the
filing of a petition for certiorari. 11 The court acquires jurisdiction over the
case only upon the payment of the prescribed docket fees. The payment
of the full amount of the docket fee is a condition sine qua non for
jurisdiction to rest.
We agree with the respondent that the petitioner failed to
substantiate his allegations that the Court of Appeals personnel refused
his offer of payment four times. Moreover, these are factual allegations
 that we cannot entertain because we are not a trier of facts. Nevertheless,
the petitioner pleads that technicalities be set aside in order to dispense
substantial justice.
The payment of docket fees, like the rule of strict compliance in the
service of summons, is not a mere technicality of procedure but is an
essential requirement of due process. Procedural rules are not to be set
aside simply because their strict application would prejudice a party's
substantive rights. Like all rules, they must be observed. They can only be
relaxed for the most persuasive of reasons where a litigant's degree of
noncompliance with the rules is severely disproportionate to the injustice
he is bound to suffer as a consequence. 12 TCAScE

In the present case, the petitioner appeals to our sense of equity

and justice to relax the procedural rules in his favor because his petition
for certiorari is meritorious. However, we cannot overlook the inequity of
relaxing the procedural rules for the petitioner in CA-G.R. UDK-SP No.
6325 in order to dismiss the respondent's complaint in Civil Case No. Q-
06-58473 for the Sheriff's noncompliance with the rule on the service of
summons. If we will be equitable to the petitioner, then fairness demands
that we must also be equitable to the respondent.
In rendering justice, courts have always been, as they ought to be,
conscientiously guided by the norm that on the balance, technicalities
take a backseat against substantive rights, and not the other way around.
13 As the petitioner itself said, the ends of justice would be best served if
we do away with the technicalities as we dispense substantial justice. We
thus believe that the best course of action under the circumstances is to
allow the RTC to decide the case on the merits.
WHEREFORE, premises considered, we hereby DENY the petition
for lack of merit. The Regional Trial Court of Quezon City, Branch 221 is
DIRECTED to proceed with Civil Case No. Q-06-58473 and the petitioner
is ORDERED to file its answer within five (5) days from receipt of this
decision. No costs.
SO ORDERED.
(7107 Islands Publishing, Inc. v. The House Printers Corp., G.R. No. 193420,
|||

[October 14, 2015])

 [G.R. No. 182534. September 2, 2015.]

ONGCOMA HADJI HOMAR, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

BRION, J :
p

Before the Court is a petition for review on certiorari filed by

Ongcoma Hadji Homar (petitioner) seeking the reversal of the Decision 1 of
the Court of Appeals (CA) dated January 10, 2008, and its Resolution dated
April 11, 2008 in CA-G.R. CR No. 29364. These assailed CA rulings affirmed
the decision of the Regional Trial Court (RTC) of Paraaque City, Branch
259 in Criminal Case No. 02-0986 which convicted the petitioner for
violation of Republic Act (RA) No. 9165 entitled "An Act Instituting the
Comprehensive Dangerous Drugs Act of 2002."
The Factual Antecedents
The petitioner was charged for violation of Section 11, Article II 2 of
RA 9165. The Information states that on or about August 20, 2002, the
petitioner was found to possess one heat-sealed transparent plastic
sachet containing 0.03 grams of methylamphetamine hydrochloride,
otherwise known as shabu. The petitioner pleaded not guilty during
arraignment. 3
PO1 Eric Tan (Tan) was the lone witness for the prosecution. As
stated in the RTC decision, he testified that on August 20, 2002, at around
8:50 in the evening, their Chief, P/Chief Supt. Alfredo C. Valdez, ordered
him and civilian agent (C/A) Ronald Tangcoy (Tangcoy) to go to the South
Wing, Roxas Boulevard. While proceeding to the area onboard a mobile
hunter, they saw the petitioner crossing a "No Jaywalking" portion of Roxas
Boulevard. They immediately accosted him and told him to cross at the
pedestrian crossing area.
The petitioner picked up something from the ground, prompting
Tangcoy to frisk him resulting in the recovery of a knife. Thereafter,
Tangcoy conducted a thorough search on the petitioner's body and found
and confiscated a plastic sachet containing what he suspected as shabu.
Tangcoy and Tan executed a sinumpaang salaysay on the incident. 4
The petitioner was the sole witness for the defense. 5 He testified
that on August 20, 2002, he was going home at around 6:30 p.m. after
selling imitation sunglasses and other accessories at the BERMA Shopping
Center. After crossing the overpass, a policeman and a civilian stopped
and frisked him despite his refusal. They poked a gun at him, accused him
of being a holdupper, and forced him to go with them. They also
confiscated the kitchen knife, which he carried to cut cords. He was
likewise investigated for alleged possession of shabu and detained for one
day. He was criminally charged before the Metropolitan Trial Court of
Paraaque City, Branch 77 for the possession of the kitchen knife but he
was eventually acquitted. 6cAaDHT

The RTC's Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A
Tangcoy were presumed to have performed their duties regularly in
arresting and conducting a search on the petitioner. The RTC also noted
that PO1 Eric Tan was straightforward in giving his testimony and he did
not show any ill motive in arresting the petitioner. 7
The RTC also did not believe the petitioner's defense of denial and
ruled that it is a common and standard defense ploy in most prosecutions
in dangerous drugs cases. This defense is weak especially when it is not
substantiated by clear and convincing evidence as in this case. 8
The petitioner filed an appeal with the CA.
The CA's ruling
The CA dismissed the petition and affirmed the RTC's findings.
According to the CA, Section 5, paragraph (a) of Rule 113 of the
Revised Rules of Criminal Procedure enumerates the circumstances when
a warrantless arrest is legal, valid, and proper. One of these is when the
person to be arrested has committed, is actually committing, or is
attempting to commit an offense in the presence of a peace officer or a
private person. In the present case, the petitioner committed jaywalking in
the presence of PO1 Tan and C/A Tangcoy; hence, his warrantless arrest
for jaywalking was lawful. 9
Consequently, the subsequent frisking and search done on the
petitioner's body which produced the knife and the shabu were incident to
a lawful arrest allowed under Section 13, Rule 126 of the Revised Rules of
Criminal Procedure. 10
The CA likewise ruled that PO1 Tan 11 clearly showed that the
petitioner was caught in flagrante delicto in possession of shabu. 12
The petitioner filed a motion for reconsideration which was denied
by the CA. 13 Hence, this appeal.
The Petitioner's Position
The petitioner argues that the CA erred in affirming his conviction
on the following grounds:
First, the shabu, which was allegedly recovered from the petitioner,
is inadmissible as evidence because it was obtained as a result of his
unlawful arrest and in violation of his right against unreasonable search
and seizure. The petitioner has not committed, was not committing and
was not attempting to commit any crime at the time of his arrest. In fact,
no report or criminal charge was filed against him for the alleged
jaywalking. 14
Second, assuming for the sake of argument that there was a valid
arrest, Section 13, Rule 126 of the Revised Rules of Criminal Procedure
permits a search that is directed only upon dangerous weapons or
"anything which may have been used or constitute proof in the
commission of an offense without a warrant." In the present case, the
offense, for which the petitioner was allegedly caught in flagrante delicto, is
jaywalking. The alleged confiscated drug has nothing to do with the
offense of jaywalking. 15
Finally, the non-presentation of Tangcoy, who allegedly recovered
the shabu from the petitioner, renders the prosecution's evidence weak
and uncorroborated. Consequently, the sole testimony of Tan cannot
sustain the petitioner's conviction beyond reasonable doubt.
The Respondent's Position
 In his Comment, the respondent argues that the guilt of the
petitioner was conclusively established beyond reasonable doubt. 16 He
reiterates that the warrantless frisking and search on the petitioner's body
was an incident to a lawful warrantless arrest for jaywalking. 17 The non-
filing of a criminal charge of jaywalking against the petitioner does not
render his arrest invalid. 18
The respondent also assails the petitioner's defense that the shabu
is inadmissible as evidence. According to the respondent, the petitioner
can no longer question his arrest after voluntarily submitting himself to
the jurisdiction of the trial court when he entered his plea of not guilty
and when he testified in court. 19
The Court's Ruling
We find the petition meritorious.
The prosecution failed to prove that
a lawful warrantless arrest preceded
the search conducted on the
petitioner's body.
The Constitution guarantees the right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches
and seizures. Any evidence obtained in violation of these rights shall be
inadmissible for any purpose in any proceeding. While the power to
search and seize may at times be necessary to the public welfare, the
exercise of this power and the implementation of the law should not
violate the constitutional rights of the citizens. 20
HCaDIS

To determine the admissibility of the seized drugs in evidence, it is

indispensable to ascertain whether or not the search which yielded the
alleged contraband was lawful. 21 There must be a valid warrantless
search and seizure pursuant to an equally valid warrantless arrest, which
must precede the search. For this purpose, the law requires that there be
first a lawful arrest before a search can be made the process cannot be
reversed. 22
Section 5, Rule 113 23 of the Revised Rules of Criminal Procedure
provides the only occasions when a person may be lawfully arrested
without a warrant. In the present case, the respondent alleged that the
petitioner's warrantless arrest was due to his commission of jaywalking in
flagrante delicto and in the presence of Tan and Tangcoy.
To constitute a valid in flagrante delicto arrest, two requisites must
concur: (1) the person to be arrested must execute an overt act indicating
that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence of or
within the view of the arresting officer. 24
The prosecution has the burden to prove the legality of the
warrantless arrest from which the corpus delicti of the crime -shabu- was
obtained. For, without a valid warrantless arrest, the alleged confiscation
of the shabu resulting from a warrantless search on the petitioner's body
is surely a violation of his constitutional right against unlawful search and
seizure. As a consequence, the alleged shabu shall be inadmissible as
evidence against him.
On this point, we find that aside from the bare testimony of Tan as
quoted by the CA in its decision, the prosecution did not proffer any other
proof to establish that the requirements for a valid in flagrante delicto
arrest were complied with. Particularly, the prosecution failed to prove
that the petitioner was committing a crime.
The respondent failed to specifically identify the area where the
petitioner allegedly crossed. Thus, Tan merely stated that the petitioner
"crossed the street of Roxas Boulevard, in a place not designated for
crossing." Aside from this conclusion, the respondent failed to prove that
the portion of Roxas Boulevard where the petitioner crossed was indeed a
"no jaywalking" area. The petitioner was also not charged of jaywalking.
These are pieces of evidence that could have supported the conclusion
that indeed the petitioner was committing a crime of jaywalking and
therefore, the subsequent arrest and search on his person was valid.
Unfortunately, the prosecution failed to prove this in the present case.
We clarify, however, that the filing of a criminal charge is not a
condition precedent to prove a valid warrantless arrest. Even if there is a
criminal charge against an accused, the prosecution is not relieved from
its burden to prove that there was indeed a valid warrantless arrest
preceding the warrantless search that produced the corpus delicti of the
crime.

Neither can the presumption of regularity in the performance of

official duty save the prosecution's lack of evidence to prove the
warrantless arrest and search. This presumption cannot overcome the
presumption of innocence or constitute proof of guilt beyond reasonable
doubt. Among the constitutional rights enjoyed by an accused, the most
primordial yet often disregarded is the presumption of innocence. This
elementary principle accords every accused the right to be presumed
innocent until the contrary is proven beyond reasonable doubt; and the
burden of proving the guilt of the accused rests upon the prosecution. 25
It may not be amiss to point out also the contrary observation of the
Court as regards the findings of the RTC when it held, rather hastily, that
in the process of accosting the petitioner for jaywalking, Tangcoy
recovered from his possession a knife and a small plastic sachet
containing shabu. 26 The testimony of Tan, as quoted in the CA decision,
and the findings of the RTC, cast doubt on whether Tan and Tangcoy
intended to arrest the petitioner for jaywalking.
Arrest is the taking of a person into custody in order that he or she
may be bound to answer for the commission of an offense. It is effected
by an actual restraint of the person to be arrested or by that person's
voluntary submission to the custody of the one making the arrest. Neither
the application of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is enough that
there be an intention on the part of one of the parties to arrest the
other, and that there be an intent on the part of the other to submit,
under the belief and impression that submission is necessary. 27
The pertinent testimony 28 of Tan, as quoted by the CA, is as follows:
Q: What happened after you obeyed the order of your immediate
superior?
A: At 8:50 in the evening of August 20, 2002, we saw a male person
crossed the street of Roxas Boulevard, in a place not
designated for crossing.
Q: What did you do when you saw this person crossed the street of
Roxas Boulevard, in a place not designated for crossing?
A: We accosted him.
Q: How did you accost that person?
A: We accosted him and pointed to him the right place for
crossing. Pero napansin namin siya na parang may
kinukuha, so he was frisked by Ronald Tangcoy and a
knife was recovered from his possession.
Q: After a knife was recovered by your companions (sic) from that
person who allegedly crossed the wrong side of the street,
what happened after that?
A: After recovering the knife, nakaalalay lang ako and he was frisked
again by Tangcoy and a plastic sachet was recovered from his
possession.AHCETa

Q: Did you know the contents of that plastic sachet which your
companion recovered from that person who crossed the
wrong side of the street?
A: Yes, sir.
Q: What about the contents?
A: Suspected shabu or methylamphetamine hydrochloride.
Q: After the drug was recovered from the possession of that
man, what did you do?
A: We brought him to our precinct and informed him of his
constitutional rights and brought him to the Paraaque
Community Hospital and the suspected shabu or
methylamphetamine was brought to the PNP Crime Lab at
Fort Bonifacio.
Q: Did you come to know the name of that person whom you
arrested in the morning of August 20, 2002?
A: Yes, sir.
Q: What is his name?
A: Ongcoma Hadji Omar, sir.
 Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this
case?
A: Yes, sir."
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the
petitioner. When Tan and Tangcoy allegedly saw the petitioner jaywalking,
they did not arrest him but accosted him and pointed to him the right
place for crossing. In fact, according to the RTC, Tan and Tangcoy
"immediately accosted him and told him to cross [at] the designated
area." 29
Tan and Tangcoy did not intend to bring the petitioner under
custody or to restrain his liberty. This lack of intent to arrest him was
bolstered by the fact that there was no criminal charge that was filed
against the petitioner for crossing a "no jaywalking" area.
From Tan's testimony, the intent to arrest the petitioner only came
after they allegedly confiscated the shabu from the petitioner, for which
they informed him of his constitutional rights and brought him to the
police station.
The indispensability of the intent to arrest an accused in a
warrantless search incident to a lawful arrest was emphasized in Luz vs.
People of the Philippines. 30 The Court held that the shabu confiscated from
the accused in that case was inadmissible as evidence when the police
officer who flagged him for traffic violation had no intent to arrest him.
According to the Court, due to the lack of intent to arrest, the subsequent
search was unlawful. This is notwithstanding the fact that the
accused, being caught in flagrante delicto for violating an ordinance,
could have been therefore lawfully stopped or arrested by the
apprehending officers.
In the light of the discussion above, the respondent's argument that
there was a lawful search incident to a lawful warrantless arrest for
jaywalking appears to be an afterthought in order to justify a warrantless
search conducted on the person of the petitioner. In fact, the illegality of
the search for the shabu is further highlighted when it was not recovered
immediately after the alleged lawful arrest, if there was any, but only after
 the initial search resulted in the recovery of the knife. Thereafter,
according to Tan, Tangcoy conducted another search on the person of
the petitioner resulting in the alleged confiscation of the shabu. Clearly,
the petitioner's right to be secure in his person was callously brushed
aside twice by the arresting police officers. 31
The waiver of an illegal warrantless
arrest does not also mean a waiver of
the inadmissibility of evidence seized
during an illegal warrantless arrest.
We agree with the respondent that the petitioner did not timely
object to the irregularity of his arrest before his arraignment as required
by the Rules. In addition, he actively participated in the trial of the case. As
a result, the petitioner is deemed to have submitted to the jurisdiction of
the trial court, thereby curing any defect in his arrest.
However, this waiver to question an illegal arrest only affects the
jurisdiction of the court over his person. It is well-settled that a waiver of
an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. 32
Since the shabu was seized during an illegal arrest, its inadmissibility
as evidence precludes conviction and justifies the acquittal of the
petitioner.
WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE
the Decision of the Court of Appeals dated January 10, 2008, and its
Resolution dated April 11, 2008 in CA-G.R. CR No. 29364. Petitioner
ONGCOMA HADJI HOMAR is ACQUITTED and ordered immediately
RELEASED from detention, unless he is confined for any other lawful
cause.
SO ORDERED.
||| (Ongcoma Hadji Homar v. People, G.R. No. 182534 , [September 2, 2015])

[G.R. No. 188794. September 2, 2015.]

HONESTO OGAYON y DIAZ, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
 DECISION

BRION, J :
p

We resolve the petition for review on certiorari 1 assailing the

Decision 2 dated March 31, 2009, and the Resolution 3 dated July 10, 2009,
of the Court of Appeals (CA) in CA-G.R. CR No. 31154. The appealed
decision affirmed the joint judgment 4 dated September 5, 2007, of the
Regional Trial Court (RTC), Branch 12, Ligao City, Albay, which convicted
petitioner Honesto Ogayon of violating Sections 11 and 12, Article II of
Republic Act No. 9165. 5
The Antecedent Facts
On December l, 2003, two Informations were filed against Ogayon
for the crimes allegedly committed as follows:
I. Criminal Case No. 4738:
That at about 5:20 o'clock (sic) in the morning of October 2,
2003 at Barangay Iraya, Municipality of Guinobatan, Province of
Albay, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused did then and there willfully,
unlawfully and feloniously have in his possession, custody and
control four (4) pcs. of small aluminum foil, four (4) pcs. of
disposable lighter in different colors, one (1) blade trademark
"Dorco," and one (1) roll aluminum foil, instruments used or
intended to be used for smoking or consuming shabu, without
authority of law, to the damage and prejudice of the public interest
and welfare. 6
II. Criminal Case No. 4739:
That at about 5:20 o'clock (sic) in the morning of October 2,
2003 at Barangay Iraya, Municipality of Guinobatan, Province of
Albay, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent to violate
the law, and without authority of law, did then and there willfully,
unlawfully and feloniously have in his possession, custody and
control two (2) heat-sealed transparent plastic sachets containing
0.040 gram of methamphetamine hydrochloride (shabu), with full
 knowledge that in his possession and control is a dangerous drug,
to the damage and prejudice of the public interest and welfare. 7
During his arraignment in Criminal Case Nos. 4738 and 4739 on
January 21, 2004, and March 17, 2004, respectively, Ogayon denied both
charges and pleaded "not guilty." The joint pre-trial held on May 5, 2004
yielded only one factual admission on the identity of the accused. 8 A joint
trial on the merits ensued.
The Prosecution Version
On October 2, 2003, at around 5:20 a.m., Police Chief Inspector
Elmer Ferrera, together with the other members of the Albay Provincial
Police Office, proceeded to Ogayon's house in Barangay Iraya,
Guinobatan, Albay, to enforce Search Warrant No. AEK 29-2003. 9 The
warrant was for the seizure of shabu and drug paraphernalia allegedly
kept and concealed in the premises of Ogayon's house. Barangay Tanod
Jose Lagana (Tanod Lagana) and Kagawad Lauro Tampocao assisted the
police team in conducting the search. 10
Upon reaching Ogayon's house, the police team noticed several
persons inside a nipa hut located nearby. Suspecting that a pot session
was about to be held, the police team restrained two of the five persons
and immediately proceeded to Ogayon's house. After introducing
themselves as police officers, Senior Police Officer Herminigildo Caritos
(SPO4 Caritos) informed Ogayon that they had a warrant to search his
place. SPO4 Caritos handed a copy of the warrant to Ogayon, who allowed
the police team to conduct the search. 11
Led by SPO4 Caritos, some members of the police team went to the
comfort room located about five meters away from Ogayon's house.
When they searched the area, they found an object (wrapped in a piece of
paper with blue prints) that fell from the wooden braces of the roof. Upon
SPO4 Caritos' inspection, the paper contained two (2) small, heat-sealed
transparent plastic sachets that the police team suspected to contain
shabu. The search of the comfort room also uncovered four (4) disposable
lighters, one (1) knife measuring six inches long, used aluminum foil, one
(1) roll of aluminum foil, and a "Dorco" blade. 12 SPO4 Caritos then placed
his initials on the two (2) plastic sachets before joining the rest of the
police officers who were conducting a search in Ogayon's house. The
police officers who searched Ogayon's house found live ammunition for
an M-16 rifle.
After conducting the search, the police team prepared a Receipt of
Property Seized. 13 The receipt was signed by the seizing officers,
representatives from the Department of Justice and the media, and two
(2) barangay officials who were present during the entire operation. 14
The police team thereafter arrested Ogayon and the two (2) other
persons who had earlier been restrained, and brought them to Camp
Simeon Ola for booking. The seized items were likewise brought to the
camp for laboratory examination. In his Chemistry Report, 15 Police
Superintendent Lorlie Arroyo (forensic chemist of the Philippine National
Police Regional Crime Laboratory) reported that the two (2) plastic sachets
seized from Ogayon's place tested positive for the presence of
methamphetamine hydrochloride or shabu. 16
The Defense Version
The defense presented a different version of the events.
Testifying for himself, Ogayon disavowed any knowledge of the
prohibited drugs and claimed that he saw the seized items for the first
time only when they were being inventoried. His statements were
corroborated by the testimony of his wife, Zenaida Ogayon.
Ogayon asserted that prior to the search, he was asleep in his
house. His wife Zenaida woke him up because several policemen and
barangay officials came to his house. He claimed that the police team did
not present any search warrant before conducting the search, and it was
only during trial that he saw a copy of the warrant.
He recounted that the police officers, splitting into two groups,
conducted a simultaneous search of his house and the comfort room
located nearby. He noticed that SPO4 Caritos, who was part of the group
that searched the comfort room, came out and went to the Barangay Hall.
Shortly after, SPO4 Caritos returned, accompanied by Tanod Lagana. SPO4
Caritos again went inside the comfort room, leaving Tanod Lagana waiting
outside. SPO4 Caritos thereafter came out from the comfort room and
ran towards Ogayon's house while shouting "positive, positive." 17
 The RTC Ruling
On September 5, 2007, the RTC rendered a joint judgment
convicting Ogayon of the two criminal charges against him. Relying on the
presumption of regularity, the RTC rejected Ogayon's frame-up defense.
The dispositive portion of the joint judgment reads:
WHEREFORE, under the above considerations, judgment is
hereby rendered as follows:
a. In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is
found GUILTY beyond reasonable doubt of Violation of Section
12, Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of drug paraphernalia, namely: four (4)
pcs. small aluminum foil, one (1) roll aluminum foil, four (4)
pcs. disposable lighters, and one (1) pc. blade; thereby
sentencing him to suffer the indeterminate penalty of
imprisonment of six (6) months and one (1) day to two (2)
years and to pay a FINE of ten thousand pesos (P10,000.00);
b. In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is
found GUILTY beyond reasonable doubt of Violation of Section
11, Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of two (2) pcs. small heat-sealed plastic
sachets containing methamphetamine hydrochloride or
"shabu," with total net weight of 0.0400 gram; thereby,
sentencing him to suffer the indeterminate penalty of
imprisonment of twelve (12) years and one (1) day to fourteen
(14) years and to pay a FINE of three hundred thousand pesos
(P300,000.00). 18
Ogayon appealed to the CA. This time, he questioned the validity of
the search warrant, claiming it was improperly issued. He argued that the
search warrant was defective for lack of transcript showing that the
issuing judge conducted an examination of the applicant for search
warrant and his witnesses.
The CA Ruling
In accordance with Section 5, Rule 126 of the Rules of Court, a judge
must examine under oath and in writing an applicant for search warrant
and his witnesses. Although the CA found no evidence in the records
showing compliance with this requirement, it nevertheless upheld the
search warrant's validity due to Ogayon's failure to make a timely
objection against the warrant during the trial.
That Ogayon objected to the prosecution's formal offer of exhibits,
which included the search warrant, was not sufficient for the CA. Ogayon
merely claimed that the chemistry report was not executed under oath,
the items were not illegal per se, and that he did not sign the Receipt of
Property Seized since he was not present when the seized items were
confiscated. The CA noted that the objections were not based on
constitutional grounds, and for this reason, concluded that Ogayon is
deemed to have waived the right to question the legality of the
search warrant. 19
Based on the search warrant's validity, the CA affirmed Ogayon's
conviction for possession of drugs and drug paraphernalia. Although the
comfort room was located outside Ogayon's house, the CA declared that
he exercised exclusive control over it and should rightly be held
responsible for the prohibited drugs and paraphernalia found there.
As with the RTC, the CA relied on the presumption of regularity of
the police team's operation and found Ogayon's claim of frame-up to be
unsupported. The CA thus ruled that the prosecution proved beyond
reasonable doubt that Ogayon was liable for the crimes charged.
The Issues
In the present petition, Ogayon raises the following assignment of
errors:
I.
The CA erred in finding that Ogayon had waived his right to
question the legality of the search warrant.

II.
Even granting without admitting that Ogayon had already
waived his right to question the legality of the search warrant,
 the search conducted was still highly irregular, thereby
rendering the seized articles as inadmissible in evidence.
Ogayon primarily argues that there was a violation of his
constitutional right to be secure in his person, house, papers, and effects
against unreasonable searches and seizures. He denies waiving the right
through his supposed failure to assail the search warrant's validity during
the trial. On the contrary, he claims to have objected to the prosecution's
formal offer of the search warrant.
Even assuming that he questioned the search warrant's validity only
during appeal, Ogayon contends that this should not be interpreted as a
waiver of his right. Since an appeal in a criminal case throws the whole
case open for review, any objection made on appeal, though not raised
before the trial court, should still be considered.
Ogayon next argues that the search conducted by the police team
on his premises, pursuant to an already defective search warrant, was
highly irregular. He and his spouse were in their house when SPO4 Caritos
allegedly discovered the shabu in the comfort room located outside their
house, so they were not able to witness the search. Moreover, he claimed
that there were other persons near the premises of his house (and the
comfort room) when the search was conducted. Hence, it could not
indubitably be concluded that the seized items were under his actual and
effective control and possession.
The Court's Ruling
The right against unreasonable searches and seizures is one of the
fundamental constitutional rights. Section 2, Article III of the Constitution,
reads:
Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and
the persons or things to be seized. [emphasis ours]
 This right has been included in our Constitution since 1899 through
the Malolos Constitution 20 and has been incorporated in the various
organic laws governing the Philippines during the American colonization,
21 the 1935 Constitution, 22 and the 1973 Constitution. 23

The protection afforded by the right is reinforced by its recognition

as a fundamental human right under the International Covenant on Civil
and Political Rights and the Universal Declaration of Human Rights, 24 to
both of which the Philippines is a signatory. 25 Both the Covenant and the
Declaration recognize a person's right against arbitrary or unlawful
interference with one's privacy and property. 26
Given the significance of this right, the courts must be vigilant in
preventing its stealthy encroachment or gradual depreciation and ensure
that the safeguards put in place for its protection are observed.
Under Section 2, Article III of the Constitution, the existence of
probable cause for the issuance of a warrant is central to the right,
and its existence largely depends on the finding of the judge conducting
the examination. 27 To substantiate a finding of probable cause, the Rules
of Court specifically require that
Rule 126, Sec. 5. Examination of complainant; record. The
judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under
oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted.
[emphasis ours]
Ogayon's appeal of his conviction essentially rests on his claim that
the search warrant was defective because "there was no transcript of
stenographic notes of the proceedings in which the issuing judge had
allegedly propounded the required searching questions and answers in
order to determine the existence of probable cause." 28 We find that the
failure to attach to the records the depositions of the complainant
and his witnesses and/or the transcript of the judge's examination,
though contrary to the Rules, does not by itself nullify the warrant.
The requirement to attach is merely a procedural rule and not a
component of the right. Rules of procedure or statutory requirements,
however salutary they may be, cannot provide new constitutional
requirements. 29
Instead, what the Constitution requires is for the judge to
conduct an "examination under oath or affirmation of the
complainant and the witnesses he may produce," after which he
determines the existence of probable cause for the issuance of the
warrant. The examination requirement was originally a procedural rule
found in Section 98 of General Order No. 58, 30 but was elevated as part of
the guarantee of the right under the 1935 Constitution. 31 The intent was
to ensure that a warrant is issued not merely on the basis of the affidavits
of the complainant and his witnesses, but only after examination by the
judge of the complainant and his witnesses. As the same examination
requirement was adopted in the present Constitution, we declared that
affidavits of the complainant and his witnesses are insufficient to establish
the factual basis for probable cause. 32 Personal examination by the judge
of the applicant and his witnesses is indispensable, and the examination
should be probing and exhaustive, not merely routinary or a rehash of the
affidavits. 33
The Solicitor General argues that the lack of depositions and
transcript does not necessarily indicate that no examination was made by
the judge who issued the warrant in compliance with the constitutional
requirement. True, since in People v. Tee, 34 we declared that
[T]he purpose of the Rules in requiring depositions to be taken is to
satisfy the examining magistrate as to the existence of probable
cause. The Bill of Rights does not make it an imperative necessity
that depositions be attached to the records of an application for a
search warrant. Hence, said omission is not necessarily fatal, for
as long as there is evidence on the record showing what
testimony was presented. 35
Ideally, compliance with the examination requirement is shown by the
depositions and the transcript. In their absence, however, a warrant may
still be upheld if there is evidence in the records that the requisite
examination was made and probable cause was based thereon.
There must be, in the records, particular facts and circumstances that
were considered by the judge as sufficient to make an independent
evaluation of the existence of probable cause to justify the issuance of the
search warrant. 36
The Solicitor General claims that, notwithstanding the absence of
depositions and transcripts, the records indicate an examination was
conducted. In fact, a statement in the search warrant itself attests to this:
Search Warrant
xxx xxx xxx
GREETINGS:
It appearing to the satisfaction of the undersigned after
examination under oath of the applicant and his witnesses
that there is probable cause to believe that respondent, without
authority of law, has under his possession and control the following
articles to wit:
Methamphetamine Hydrochloride "Shabu" and
paraphernalia
which are kept and concealed in the premises of his house
particularly in the kitchen and in the CR outside his house both
encircled with a red ballpen, as described in the sketch attached to
the Application for Search Warrant, located at Bgy. Iraya,
Guinobatan, Albay. 37 (emphasis and underscore ours)
Generally, a judge's determination of probable cause for the
issuance of a search warrant is accorded great deference by a reviewing
court, so long as there was substantial basis for that determination. 38
"Substantial basis means that the questions of the examining judge
brought out such facts and circumstances as would lead a reasonably
discreet and prudent man to believe that an offense has been committed,
and the objects in connection with the offense sought to be seized are in
the place sought to be searched." 39
Apart from the statement in the search warrant itself, we find
nothing in the records of this case indicating that the issuing judge
personally and thoroughly examined the applicant and his witnesses.
The absence of depositions and transcripts of the examination was
already admitted; the application for the search warrant and the
affidavits, although acknowledged by Ogayon himself, 40 could not be
found in the records. Unlike in Tee, where the testimony given during trial
revealed that an extensive examination of the applicant's witness was
made by the judge issuing the warrant, the testimonies given during
Ogayon's trial made no reference to the application for the search
warrant. SPO4 Caritos testified that he was among those who conducted
the surveillance before the application for a search warrant was made.
However, he was not the one who applied for the warrant; in fact, he
testified that he did not know who applied for it. 41
The records, therefore, bear no evidence from which we can
infer that the requisite examination was made, and from which the
factual basis for probable cause to issue the search warrant was
derived. A search warrant must conform strictly to the constitutional
requirements for its issuance; otherwise, it is void. Based on the lack of
substantial evidence that the search warrant was issued after the
requisite examination of the complainant and his witnesses was made,
the Court declares Search Warrant No. AEK 29-2003 a nullity.
The nullity of the search warrant prevents the Court from
considering Ogayon's belated objections thereto.
The CA declared that Ogayon had waived the protection of his right
against unreasonable searches and seizures due to his failure to make a
timely objection against the search warrant's validity before the trial court.
It based its ruling on the procedural rule that any objections to the legality
of the search warrant should be made during the trial of the case. Section
14, Rule 126 of the Rules of Court provides the manner to quash a search
warrant or to suppress evidence obtained thereby:

Section 14. Motion to quash a search warrant or to suppress

evidence; where to file. A motion to quash a search warrant
and/or to suppress evidence obtained thereby may be filed in
and acted upon only by the court where the action has been
instituted. If no criminal action has been instituted, the motion
may be filed in and resolved by the court that issued the search
warrant. However, if such court failed to resolve the motion and a
criminal case is subsequently filed in another court, the motion
shall be resolved by the latter court. [emphasis ours]
 We find the CA's casual treatment of a fundamental right
distressing. It prioritized compliance with a procedural rule over
compliance with the safeguards for a constitutional right. Procedural rules
can neither diminish nor modify substantial rights; 42 their non-
compliance should therefore not serve to validate a warrant that
was issued in disregard of the constitutional requirements. As
mentioned, the existence of probable cause determined after
examination by the judge of the complainant and his witnesses is central
to the guarantee of Section 2, Article III of the Constitution. The ends of
justice are better served if the supremacy of the constitutional right
against unreasonable searches and seizures is preserved over technical
rules of procedure.
Moreover, the courts should indulge every reasonable
presumption against waiver of fundamental constitutional rights; we
should not presume acquiescence in the loss of fundamental rights.
43 In People v. Decierdo, 44 the Court declared that "[w]henever a protection
given by the Constitution is waived by the person entitled to that
protection, the presumption is always against the waiver." The
relinquishment of a constitutional right has to be laid out
convincingly.
In this case, the only evidence that Ogayon waived his constitutional
right was his failure to make a timely motion during the trial to quash the
warrant and to suppress the presentation of the seized items as evidence.
This failure alone, to our mind, is not a sufficient indication that Ogayon
clearly, categorically, knowingly, and intelligently made a waiver. 45 He
cannot reasonably be expected to know the warrant's defect for lack of
data in the records suggesting that defect existed. It would thus be unfair
to construe Ogayon's failure to object as a waiver of his constitutional
right. In People v. Bodoso, 46 the Court noted that "[i]n criminal cases where
life, liberty and property are all at stake. . . The standard of waiver
requires that it 'not only must be voluntary, but must be knowing,
intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences.'"
At this point, we note the purpose for the enactment of Section 14,
Rule 126 of the Rules of Court a relatively new provision incorporated
in A.M. No. 00-5-03-SC or the Revised Rules of Criminal Procedure (effective
December 1, 2000). The provision was derived from the policy guidelines
laid down by the Court in Malaloan v. Court of Appeals 47 to resolve the
main issue of where motions to quash search warrants should be filed. In
other words, the provision was "intended to resolve what is perceived as
conflicting decisions on where to file a motion to quash a search warrant
or to suppress evidence seized by virtue thereof. . . ." 48 It was certainly
not intended to preclude belated objections against the search warrant's
validity, especially if the grounds therefor are not immediately apparent.
Thus, Malaloan instructs that "all grounds and objections then available,
existent or known shall be raised in the original or subsequent
proceedings for the quashal of the warrant, otherwise they shall be
deemed waived," and that "a motion to quash shall consequently be
governed by the omnibus motion rule, provided, however, that objections
not available, existent or known during the proceedings for the quashal
of the warrant may be raised in the hearing of the motion to
suppress."
A closer reading of the cases where the Court supposedly brushed
aside belated objections would reveal that the objections were
disregarded because they had been cured or addressed based on the
records.
In Demaisip v. Court of Appeals, 49 the accused asserted that the
search warrant was never produced in court, thus suggesting its absence.
The Court, however, noted that "there were supposed testimonies of its
existence."
In People v. Tee, 50 the accused claimed that the issuing judge failed
to exhaustively examine the complainant and his witnesses, and that the
complainant's witness (a National Bureau of Intelligence operative) had no
personal knowledge of the facts comprising probable cause, but the Court
brushed these claims aside. It found that the witness' knowledge of the
facts supporting probable case was not based on hearsay as he himself
assisted the accused in handling the contraband, and that the issuing
judge extensively questioned this witness.
In People v. Torres, 51 the accused assailed the validity of the search
conducted pursuant to a search warrant as it was supposedly made
without the presence of at least two witnesses, but the Court found
otherwise, citing the testimonies taken during the trial contradicting this
claim. A similar objection was made by the accused in People v. Nuez, 52
but the Court noted the testimony of the officer conducting the search
who stated that it was made in the presence of the accused himself and
two barangay officials.
The rulings in Malaloan v. Court of Appeals, 53 People v. Court of
Appeals, 54 and People v. Correa 55 are without significance to the present
case. As mentioned, Malaloan v. Court of Appeals involved the question of
where motions to quash search warrants should be filed, and the
guidelines set therein was applied in People v. Court of Appeals. People v.
Correa, on the other hand, involved a warrantless search of a moving
vehicle.
We reiterate that the requirement to raise objections against search
warrants during trial is a procedural rule established by jurisprudence.
Compliance or noncompliance with this requirement cannot in any way
diminish the constitutional guarantee that a search warrant should be
issued upon a finding of probable cause. Ogayon's failure to make a
timely objection cannot serve to cure the inherent defect of the warrant.
To uphold the validity of the void warrant would be to disregard one of
the most fundamental rights guaranteed in our Constitution.
In the light of the nullity of Search Warrant No. AEK 29-2003,
the search conducted on its authority is likewise null and void. Under
the Constitution, any evidence obtained in violation of a person's right
against unreasonable searches and seizures shall be inadmissible for any
purpose in any proceeding. 56 With the inadmissibility of the drugs seized
from Ogayon's home, there is no more evidence to support his conviction.
Thus, we see no reason to further discuss the other issues raised in this
petition.
WHEREFORE, under these premises, the Decision dated March 31,
2009, and the Resolution dated July 10, 2009, of the Court of Appeals in
CA-G.R. CR No. 31154 are REVERSED and SET ASIDE. Accordingly, the
judgment of conviction, as stated in the joint judgment dated September
5, 2007, of the Regional Trial Court, Branch 12, Ligao City, Albay, in
Criminal Case Nos. 4738 and 4739, is REVERSED and SET ASIDE, and
 petitioner HONESTO OGAYON y DIAZ is ACQUITTED of the criminal
charges against him for violation of Republic Act No. 9165.
SO ORDERED.
||| (Ogayon y Diaz v. People, G.R. No. 188794 , [September 2, 2015])

[G.R. No. 203984. June 18, 2014.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDARIO

CALANTIAO y DIMALANTA, accused-appellant.

DECISION

LEONARDO-DE CASTRO, J : p

This is an appeal from the January 17, 2012 Decision 1 of the Court of Appeals
in CA-G.R. CR.-H.C. No. 04069, affirming in toto the July 23, 2009 Decision 2 of
the Regional Trial Court (RTC) of Caloocan City, Branch 127, finding accused-
appellant Medario Calantiao y Dimalanta (Calantiao) guilty beyond
reasonable doubt of violating Section 11, Article II of Republic Act No. 9165 or
the Comprehensive Dangerous Drugs Act of 2002.
On November 13, 2003, Calantiao was charged before the RTC of violation of
Section 11, Article II of Republic Act No. 9165 in an Information, 3 the
pertinent portion of which reads:
That on or about the 11th day of November, 2003 in Caloocan City,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without any authority
of law, did then and there willfully, unlawfully and feloniously have in
his possession custody and control two (2) bricks of dried marijuana
fruiting tops with a total weight of 997.9 grams, knowing the same to
be a dangerous drug. aTEACS

The facts, as synthesized by the RTC and adopted by the Court of Appeals,
are as follows:
EVIDENCE OF THE PROSECUTION
On November 13, 2003[,] at around 5:30 . . . in the afternoon, while
PO1 NELSON MARIANO and PO3 EDUARDO RAMIREZ were on duty, a
certain EDWIN LOJERA arrived at their office and asked for police
assistance regarding a shooting incident. Per report of the latter, it
appears that while driving a towing truck and traversing along EDSA,
Balintawak, Quezon City, he had a traffic dispute (gitgitan) with a
white taxi cab prompting him to follow said vehicle until they
reached along 8th Avenue Street corner C-3 Road, Caloocan City.
Thereat, the passengers of said taxi cab, one of them was accused
Calantiao, alighted and fired their guns. Surprised, Lojera could not
do anything but continued his driving until he reached a police
station nearby where he reported the incident.
The police officers on duty then were PO1 NELSON MARIANO and
PO3 EDUARDO RAMIREZ. PO1 Mariano testified that they
immediately responded to said complaint by proceeding to 5th
Avenue corner 8th Street, Caloocan City where they found the white
taxi. While approaching said vehicle, two armed men alighted
therefrom, fired their guns towards them (police officers) and ran
away. PO1 Mariano and PO3 Ramirez chased them but they were
subdued. PO1 Mariano recovered from Calantiao a black bag
containing two (2) bricks of dried marijuana fruiting tops and a
magazine of super 38 stainless with ammos, while PO3 Ramirez
recovered from Calantiao's companion [a] .38 revolver.
The suspects and the confiscated items were then turned over to
SPO3 PABLO TEMENA, police investigator at Bagong Barrio Police
Station for investigation. Thereat, PO1 Mariano marked the bricks of
marijuana contained in a black bag with his initials, "NM". Thereafter,
said specimen were forwarded to the PNP Crime Laboratory for
chemical analysis. The result of the examination conducted by
P/SINSP. JESSSE DELA ROSA revealed that the same was positive for
marijuana, a dangerous drug. CSaIAc

The foregoing testimony of PO1 MARIANO was corroborated by PO3

RAMIREZ who testified that he personally saw those bricks of
marijuana confiscated from the accused. He confirmed that he was
with PO1 Mariano when they apprehended said accused and his
companion and testified that while PO1 Mariano recovered from the
accused a black bag containing marijuana, on his part, he confiscated
from accused's companion a .38 revolver.
MR. CRISENDO AMANSEC, the driver of the taxi where the suspects
boarded was also presented in open court and testified as to what
he knows about the incident. He confirmed that on that date, two (2)
persons boarded on his taxi and upon reaching C-3 Road, they
alighted and fired three (3) shots and ran away.
Aside from the oral testimonies of the witnesses, the prosecution
also offered the following documentary evidence to boost their
charge against the accused:
Exh. "A" Request for Laboratory Examination dated November
12, 2003
Exh. "B" Physical Sciences Report No. D-1423-03 dated
November 12, 2003
Exh. "C-1" Picture of First brick of marijuana fruiting tops
Exh. "C-2" Picture of Second brick of marijuana fruiting tops
Exh. "D" Referral Slip dated November 12, 2003
Exh. "E" Pinagsamang Sinumpaang Salaysay dated November
12, 2003 of PO3 Eduardo Ramirez and PO1 Nelson Mariano
Exh. "E-1" Their respective signatures
Exh. "F" Sinumpaang Salaysay of Crisendo Amansec
(Erroneously marked as Exh. "E")
EVIDENCE OF THE DEFENSE
The accused offered a different version of the story. According to his
testimony, this instant case originated from a traffic mishap where
the taxi he and his companion Rommel Reyes were riding almost
collided with another car. Reyes then opened the window and made
a "fuck you" sign against the persons on board of that car. That
prompted the latter to chase them and when they were caught in a
traffic jam, PO1 Nelson Mariano, one of the persons on board of that
other car alighted and kicked their taxi. Calantiao and Reyes alighted
and PO1 Mariano slapped the latter and uttered, "Putang ina mo
bakit mo ako pinakyu hindi mo ba ako kilala?" Said police officer poked
his gun again[st] Reyes and when Calantiao tried to grab it, the gun
fired. Calantiao and Reyes were then handcuffed and were brought
to the police station. Thereat, they were subjected to body frisking
 and their wallets and money were taken. PO1 Mariano then
prepared some documents and informed them that they will be
charged for drugs. A newspaper containing marijuana was shown to
them and said police officer told them that it would be sufficient
evidence against them. They were detained and subjected to medical
examination before they were submitted for inquest at the
prosecutor's office. 4

Ruling of the RTC

On July 23, 2009, the RTC rendered its Decision giving credence to the
prosecution's case. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
declaring accused MEDARIO CALANTIAO y DIMALANTA, GUILTY
BEYOND REASONABLE DOUBT of the offense of Violation of Section
11, Article II, R.A. 9165, for illegally possessing 997.9 grams of
marijuana fruiting tops. Henceforth, this Court hereby sentences him
to suffer the penalty of life imprisonment and a fine of Five Hundred
Thousand Pesos (Php500,000.00). 5

In convicting Calantiao, the RTC held that the illegal drug seized was
admissible in evidence as it was discovered during a body search after
Calantiao was caught in flagrante delicto of possessing a gun and firing at the
police officers. Moreover, the RTC found all the elements of the offense to
have been duly established by the prosecution. 6 IaHSCc

Aggrieved, Calantiao appealed 7 his conviction to the Court of Appeals,

assigning the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION
OF SECTION 11, ARTICLE II, REPUBLIC ACT NO. 9165,
NOTWITHSTANDING THE FACT THAT THE ALLEGEDLY SEIZED ITEMS
ARE INADMISSIBLE IN EVIDENCE.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE ARRESTING OFFICERS' PATENT NON-
 COMPLIANCE WITH THE REQUIREMENTS FOR THE PROPER
CUSTODY OF SEIZED DANGEROUS DRUGS. ACcHIa

III
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION'S FAILURE TO PROVE THE
PROPER CHAIN OF CUSTODY OF THE SEIZED DANGEROUS DRUGS. 8

Ruling of the Court of Appeals

The Court of Appeals found no reason to overturn Calantiao's conviction. It
found that there was sufficient reason to justify a warrantless arrest, as the
police officers were acting on a legitimate complaint and had a reasonable
suspicion that the persons identified at the scene were the perpetrators of
the offense. Likewise, the Court of Appeals held that the search and
subsequent seizure of the marijuana in question was lawful and valid, being
incidental to a lawful arrest. 9HaECDI

Finding that all the elements of the charge of illegal possession of dangerous
drugs to be present and duly proven, 10 the Court of Appeals, on January 17,
2012, promulgated its Decision, affirming in toto the RTC's ruling.
Undaunted, Calantiao is now before this Court praying for an acquittal,
adding the following arguments in support of his position:
First, the plain view doctrine is not an exception to a search incident
to a valid warrantless arrest.
xxx xxx xxx
Second, Calantiao did not waive the inadmissibility of the seized
items.
xxx xxx xxx
Finally, the seized items' custodial chain is broken. 11

In essence, Calantiao is questioning the admissibility of the marijuana found

in his possession, as evidence against him on the grounds of either it was
discovered via an illegal search, or because its custodial chain was broken.
Ruling of this Court
This Court finds no merit in Calantiao's arguments.
 Search and Seizure of
Marijuana valid
This Court cannot subscribe to Calantiao's contention that the marijuana in
his possession cannot be admitted as evidence against him because it was
illegally discovered and seized, not having been within the apprehending
officers' "plain view." 12
Searches and seizure incident to a lawful arrest are governed by Section 13,
Rule 126 of the Revised Rules of Criminal Procedure, to wit:
Section 13. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything which
may have been used or constitute proof in the commission of an
offense without a search warrant.

The purpose of allowing a warrantless search and seizure incident to a lawful

arrest is "to protect the arresting officer from being harmed by the person
arrested, who might be armed with a concealed weapon, and to prevent the
latter from destroying evidence within reach." 13 It is therefore a reasonable
exercise of the State's police power to protect (1) law enforcers from the
injury that may be inflicted on them by a person they have lawfully arrested;
and (2) evidence from being destroyed by the arrestee. It seeks to ensure the
safety of the arresting officers and the integrity of the evidence under the
control and within the reach of the arrestee.
In People v. Valeroso, 14 this Court had the occasion to reiterate the
permissible reach of a valid warrantless search and seizure incident to a
lawful arrest, viz.:
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapon that the
latter might use in order to resist arrest or effect his escape.
Otherwise, the officer's safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the
arrestee's person in order to prevent its concealment or destruction.
Moreover, in lawful arrests, it becomes both the duty and the right of
the apprehending officers to conduct a warrantless search not only
on the person of the suspect, but also in the permissible area within
 the latter's reach. Otherwise stated, a valid arrest allows the seizure
of evidence or dangerous weapons either on the person of the one
arrested or within the area of his immediate control. The phrase
"within the area of his immediate control" means the area from
within which he might gain possession of a weapon or destructible
evidence. A gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. (Citations omitted.)
AICEDc

In Valeroso, however, the Court held that the evidence searched and seized
from him could not be used against him because they were discovered in a
room, different from where he was being detained, and was in a locked
cabinet. Thus, the area searched could not be considered as one within his
immediate control that he could take any weapon or destroy any evidence
against him. 15
In the case at bar, the marijuana was found in a black bag in Calantiao's
possession and within his immediate control. He could have easily taken any
weapon from the bag or dumped it to destroy the evidence inside it. As the
black bag containing the marijuana was in Calantiao's possession, it was
within the permissible area that the apprehending officers could validly
conduct a warrantless search. EIAHcC

Calantiao's argument that the marijuana cannot be used as evidence against

him because its discovery was in violation of the Plain View Doctrine, is
misplaced.
The Plain View Doctrine is actually the exception to the inadmissibility of
evidence obtained in a warrantless search incident to a lawful arrest outside
the suspect's person and premises under his immediate control. This is so
because "[o]bjects in the 'plain view' of an officer who has the right to be in
the position to have that view are subject to seizure and may be presented
as evidence." 16 "The doctrine is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object . . . . [It] serves to supplement the prior
justification whether it be a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused and permits the
warrantless seizure." 17
The Plain View Doctrine thus finds no applicability in Calantiao's situation
because the police officers purposely searched him upon his arrest. The
police officers did not inadvertently come across the black bag, which was in
Calantiao's possession; they deliberately opened it, as part of the search
incident to Calantiao's lawful arrest.
Inventory and Chain of
Custody of Evidence
Calantiao claims that even if the search and seizure were validly effected, the
marijuana is still inadmissible as evidence against him for failure of the
apprehending officers to comply with the rules on chain of custody, as the
item was marked at the police station. 18
The pertinent provisions of Republic Act No. 9165 provide as follows:
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof[.]

Its Implementing Rules and Regulations state:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant
 sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(a) The apprehending officer/team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof; Provided, that the physical
inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that
non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of
and custody over said items[.] (Emphasis supplied.)

This Court has held that the failure to strictly comply with Section 21, Article II
of Republic Act No. 9165, such as immediately marking seized drugs, will not
automatically impair the integrity of chain of custody because what is of
utmost importance is the preservation of the integrity and the evidentiary
value of the seized items, as these would be utilized in the determination of
the guilt or innocence of the accused. 19
Section 21 and its IRR do not even mention "marking." What they require are
(1) physical inventory, and (2) taking of photographs. As this Court held in
People v. Ocfemia: 20
What Section 21 of R.A. No. 9165 and its implementing rule do not
expressly specify is the matter of "marking" of the seized items in
warrantless seizures to ensure that the evidence seized upon
apprehension is the same evidence subjected to inventory and
photography when these activities are undertaken at the police
station rather than at the place of arrest. Consistency with the "chain
of custody" rule requires that the "marking" of the seized items to
 truly ensure that they are the same items that enter the chain and
are eventually the ones offered in evidence should be done (1) in
the presence of the apprehended violator (2) immediately upon
confiscation.

The prosecution was able to establish the chain of custody of the seized
marijuana from the time the police officers confiscated it, to the time it was
turned over to the investigating officer, up to the time it was brought to the
forensic chemist for laboratory examination. 21 This Court has no reason to
overrule the RTC and the Court of Appeals, which both found the chain of
custody of the seized drugs to have not been broken so as to render the
marijuana seized from Calantiao inadmissible in evidence.
Furthermore, unless it can be shown that there was bad faith, ill will, or
tampering of the evidence, the presumption that the integrity of the evidence
has been preserved will remain. The burden of showing the foregoing to
overcome the presumption that the police officers handled the seized drugs
with regularity, and that they properly discharged their duties is on Calantiao.
Unfortunately, Calantiao failed to discharge such burden. 22
It is worthy to note that these arguments were only raised by Calantiao on
his appeal. He himself admits this. 23 His theory, from the very beginning, was
that he did not do it, and that he was being framed for having offended the
police officers. Simply put, his defense tactic was one of denial and frame-up.
However, those defenses have always been frowned upon by the Court, to
wit:
The defenses of denial and frame-up have been invariably viewed by
this Court with disfavor for it can easily be concocted and is a
common and standard defense ploy in prosecutions for violation of
Dangerous Drugs Act. In order to prosper, the defenses of denial and
frame-up must be proved with strong and convincing evidence. In
the cases before us, appellant failed to present sufficient evidence in
support of his claims. Aside from his self-serving assertions, no
plausible proof was presented to bolster his allegations. 24

Hence, as Calantiao failed to show clear and convincing evidence that the
apprehending officers were stirred by illicit motive or failed to properly
perform their duties, their testimonies deserve full faith and credit. 25 TaDAHE
WHEREFORE, premises considered, the Court hereby AFFIRMS the January
17, 2012 Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 04069.
SO ORDERED.
(People v. Calantiao y Dimalanta, G.R. No. 203984, [June 18, 2014], 736 PHIL
|||

661-676)