G.R. No.

93833 September 28, 1995 ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own
merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam
kong hindi ka papasa.
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

KAPUNAN, J.: CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the ESG — Kukunin ka kasi ako.
private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a
"hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs
CHUCHI — Eh, di sana —
and public policy." 1

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and
makukuha ka dito kung hindi ako.
other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial
court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made
by petitioner. 2 The transcript reads as follows: CHUCHI — Mag-eexplain ako.

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am. ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang
mga magulang ko.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na
kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang
gagawin ko sa 'yo. ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka
ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI — Kasi, naka duty ako noon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Tapos iniwan no. (Sic)
ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka
makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil
CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —
tapos ka na.

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
CHUCHI — Ina-ano ko m'am na utang na loob.
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik
sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang
certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
p.m. CHUCHI — Paano kita nilapastanganan?

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka
na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal,
private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200,
entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other
purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
 The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the
latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M.
CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do
not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to
Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation
punished by R.A. 4200 refers to a the taping of a communication by a personother than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith
referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3,
1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in
its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not
apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely
refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation
to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts
charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private
respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal
interpretation would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private
Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however
otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any
private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to
whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the
private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the
use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a
communication who records his private conversation with another without the knowledge of the latter (will) qualify as a
violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200
our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be
material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil
cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by
some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a
recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or
outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that all the parties should know that the
observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
 Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape
recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot complain
any more. But if you are going to take a recording of the observations and remarks of a person without
him knowing that it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
It has been said that innocent people have nothing to fear from their conversations being overheard. But
this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose. Free conversationsare often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires
of views not intended to be taken seriously. The right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must
have recognized the nature of conversations between individuals and the significance of man's spiritual
nature, of his feelings and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange ofcommunication between
individuals — free from every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use
of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following
the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note,
because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute
itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the
acts punishable.

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the
party secretly records a public speech, he would be penalized under Section 1? Because the speech is instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.
public, but the recording is done secretly.

SO ORDERED.
Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even
those privy to the private communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be
specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a
secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1
of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is
it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third
person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private
conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate
comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes
the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or
signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as
language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988,
between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning
of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill quoted below:
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping
Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its
use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a
telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were
in the living room of complainant's residence discussing the terms for the withdrawal of the complaint for
direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After
they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August
26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him
on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a
business trip. According to the request, appellant went to the office of Laconico where he was briefed
about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation
through a telephone extension so as to hear personally the proposed conditions for the settlement.
Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for
direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer
for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the
case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High
School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High
School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.
Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the
money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the office of the then
Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal
Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00
for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the
complainant for robbery/extortion which he filed against complainant. Since appellant listened to the
telephone conversation without complainant's consent, complainant charged appellant and Laconico with
violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of
violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not
satisfied with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication
between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the
petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension
telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered
in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether
or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an
extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner
had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and,
therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured either before or after the effective
date of this Act in the manner prohibited by this law; or to replay the same for any other person or
persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other person: Provided, that the use of such record or any
copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3
hereof, shall not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the
admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person
called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences
simply because the extension was used to enable them to both listen to an alleged attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private"
in the sense that the words uttered were made between one person and another as distinguished from words between a speaker
and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the
caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar,
would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault
charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have
to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone
line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the
caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone
cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen
who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he
knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications
of the would be criminals. Surely the law was never intended for such mischievous results.
in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the
statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in
fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be,
they shall not be understood to comprehend things that are distinct and cases that are different from those
upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the
various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense
which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d)
should be then restricted only to those listed in the Inventory and should not be construed as to
comprehend all other obligations of the decedent. The rule that 'particularization followed by a general
expression will ordinarily be restricted to the former' is based on the fact in human experience that usually
the minds of parties are addressed specially to the particularization, and that the generalities, though broad
enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the
minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115
NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein,
arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment
should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be
ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or
tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by
deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering
the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely
or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded
for tapping, intercepting or recording a telephone conversation.
message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under
the law?
An extension telephone is an instrument which is very common especially now when the extended unit does not have to be
connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person
The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known"
should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the
listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He
risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in
maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and
the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
extension telephones were already widely used instruments, probably the most popularly known communication device.

Common experience tells us that a call to a particular telephone number may cause the bell to ring in more
Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the
than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other
bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a
party may have an extension telephone and may allow another to overhear the conversation. When such
dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not
takes place there has been no violation of any privacy of which the parties may complain. Consequently,
a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.
one element of 605, interception, has not occurred.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message
aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and
he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and
distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set
permitting an outsider to use an extension telephone for the same purpose.
which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a
main telephone line to get the desired communication corning from the other party or end.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in
the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing,
must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained
intercepting, or recording the communication. There must be either a physical interruption through a wiretap or
the rationale behind the rule:
the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in
individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the
Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The
discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v.
telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule
 Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the
109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to view that an extension telephone is not among such devices or arrangements.
escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v.
Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is
ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is known as the Anti-Wiretapping Act.
to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not
only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of
SO ORDERED.
greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone
conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is certainly

objectionable. It is made possible by special amendment which Your Honor may
introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible
with the amendment than without it, because with the amendment the evidence of
entrapment would only consist of government testimony as against the testimony of
the defendant. With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record their
conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record
and, therefore, the court would be limited to saying: "Okay, who is more credible,
the police officers or the defendant?" In these cases, as experienced lawyers, we
know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with an
agent outside listening in, he could falsify the testimony and there is no way of
checking it. But if you allow him to record or make a recording in any form of what
is happening, then the chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of
false testimony. If we could devise a way by which we could prevent the
presentation of false testimony, it would be wonderful. But what this bill intends to
prohibit is the use of tape record and other electronic devices to intercept private
conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or
representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate,
blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila
(Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic without the
latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of
her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened
the drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents
and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine
which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was
filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr.
Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or
those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf
to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral
damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final and
petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or submitting/admitting as evidence"
the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence
this petition.
There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they
were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the
documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined
her from using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that the documents and papers (marked
as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their use by petitioner's
attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private
respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr.
committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against
Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was
admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to
J-7." On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this
Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence,
during the enforceability of this Court's order, respondent's request for petitioner to admit the genuineness and
authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice
for respondent to use petitioner's admission as evidence against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such
verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became
bound by his admission. For Cecilia to avail herself of her husband's admission and use the same in her action for
legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the
documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute
a violation of the injunctive order of the trial court. By no means does the decision in that case establish the admissibility of the
documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction
issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition
for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the prohibition against the further use
of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy
of communication and correspondence [to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires
otherwise, as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in
any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected spouse while the marriage subsists. 6Neither may be examined
without the consent of the other as to any communication received in confidence by one from the other during the marriage, save
for specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF
CAPT. GARY ALEJANO, PN (MARINES) Antecedent Facts
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the
HOMOBONO ADAZA, and Oakwood Premier Luxury Apartments (Oakwood), an upscale apartment complex, located in the business district of Makati City.
ROBERTO RAFAEL (ROEL) PULIDO, The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior
Petitioners, officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-
Present: Arroyo and several cabinet members.
Davide, Jr., C.J.,
Puno, Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations
Panganiban, with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned
Quisumbing, to their barracks.
Ynares-Santiago,
Sandoval-Gutierrez, On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn
- versus - Carpio, over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities
Austria-Martinez, were investigating the soldiers involvement in the Oakwood incident.
Corona,
Carpio Morales, On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City,
Callejo, Sr., Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers
Azcuna, of coup detat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case
Tinga, was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior
Chico-Nazario, and officers Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.
Garcia, JJ.
GEN. PEDRO CABUAY, On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel
GEN. NARCISO ABAYA, under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the
SEC. ANGELO REYES, and Promulgated: custody of ISAFP.
SEC. ROILO GOLEZ,
Respondents. August 25, 2005 On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued
a Resolution, which resolved to:
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ
on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of
Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and decision thereon,
after which a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.[3]
DECISION

CARPIO, J.:
The Case
This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17 September 2003 and
Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed the
petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido (petitioners) on behalf of their detained
clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James
Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) (detainees).
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the
writ and to appear and produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and
further proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a
Motion for Preliminary Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and
Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties
filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision.

Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the Intelligence Service of the Armed
Forces of the Philippines (ISAFP), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya),
Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines (AFP),
Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate
court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold
faithfully the rights of the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate court directed
Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees right to exercise for two
hours a day.

The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already
charged of coup detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees
confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of
detention if there is a deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged
to have been violated in this case do not directly affect the detainees liberty. The appellate court ruled that the regulation of the
detainees right to confer with their counsels is reasonable under the circumstances.
The appellate court declared that while the opening and reading of Trillanes letter is an abhorrent violation of his right
to privacy of communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to
illegal restraint, which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open
court to uphold the visiting hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the
appellate courts decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.
Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the
constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04
regarding visiting hours and the right of the detainees to exercise for two (2) hours a day.
SO ORDERED.[4]
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING
A DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF
THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF
THE DETAINED JUNIOR OFFICERS DETENTION.[5]
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court remanded the case to the
Court of Appeals only for a factual hearing. Petitioners thus argue that the Courts Order had already foreclosed any question on
the propriety and merits of their petition.
Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court
of Appeals the duty to inquire into the cause of the junior officers detention. Had the Court ruled for the detainees release, the
Court would not have referred the hearing of the petition to the Court of Appeals. The Court would have forthwith released the
detainees had the Court upheld petitioners cause.
In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of
the petition.[6] The respondent must produce the person and explain the cause of his detention.[7] However, this order is not a
ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Courts order to the Court of
Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the
propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the
detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After
actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court
had no jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the
detainees complaint against the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one
objective: to inquire into the cause of detention of a person.[8] The purpose of the writ is to determine whether a person is being
illegally deprived of his liberty.[9] If the inquiry reveals that the detention is illegal, the court orders the release of the person. If,
however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very
limited. It is not a writ of error.[10] Neither can it substitute for an appeal.[11]
Nonetheless, case law has expanded the writs application to circumstances where there is deprivation of a persons
constitutional rights. The writ is available where a person continues to be unlawfully denied of one or more of his constitutional
freedoms, where there is denial of due process, where the restraints are not merely involuntary but are also unnecessary, and
where a deprivation of freedom originally valid has later become arbitrary. [12]
However, a mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the
scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting
in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is
imposed and such sentence is void as to the excess.[13] Whatever situation the petitioner invokes, the threshold remains high. The
violation of constitutional right must be sufficient to void the entire proceedings.[14]
Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the
lawful indictment of the detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen.
Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees their clients any time of the
day or night. The regulation allegedly curtails the detainees right to counsel and violates Republic Act No. 7438 (RA
7438).[15] Petitioners claim that the regulated visits made it difficult for them to prepare for the important hearings before the
Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees right to privacy of
communication when the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo
(Maestrecampo). Petitioners further claim that the ISAFP officials violated the detainees right against cruel and unusual
punishment when the ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the ISAFP
officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and
ventilation in the detainees cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement.[16] However, the fact that the detainees
are confined makes their rights more limited than those of the public.[17] RA 7438, which specifies the rights of detainees and the
duties of detention officers, expressly recognizes the power of the detention officer to adopt and implement reasonable measures
to secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a
person arrested, detained or under custodial investigation, or any medical doctor or priest or religious
minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his
immediate family with him, or from examining and treating him, or from ministering to his spiritual
needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of
not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial responsibility over
any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his
safety and prevent his escape. (Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client at any hour of
the day or, in urgent cases, of the night. However, the last paragraph of the same Section 4(b) makes the express qualification
that notwithstanding the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures
as may be necessary to secure the safety of the detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainees
confinement must be reasonable measures x x x to secure his safety and prevent his escape. Thus, the regulations must be
reasonably connected to the governments objective of securing the safety and preventing the escape of the detainee. The law
grants the detention officer the authority to undertake such reasonable measures or regulations.
Petitioners contend that there was an actual prohibition of the detainees right to effective representation when
petitioners visits were limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees rights entitle
them to be released from detention.
Petitioners contention does not persuade us. The schedule of visiting hours does not render void the detainees
indictment for criminal and military offenses to warrant the detainees release from detention. The ISAFP officials did not deny,
but merely regulated, the detainees right to counsel. The purpose of the regulation is not to render ineffective the right to counsel,
but to secure the safety and security of all detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must be reasonably related to
maintaining security and must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary
and purposeless.[19] However, Bell v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions
in detention and prison facilities.[20] The U.S. Supreme Court commanded the courts to afford administrators wide-ranging
deference in implementing policies to maintain institutional security. [21]
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in
detention centers allowable: such reasonable measures as may be necessary to secure the detainees safety and prevent his
escape. In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate
purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face
meetings with their lawyers on a daily basisclearly shows that there is no impairment of detainees right to counsel. Petitioners as
counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular
business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the
standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP officials to
confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer
with the detainees. The detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the
Senate and the Feliciano Commission,[22] petitioners were given time to confer with the detainees, a fact that petitioners
themselves admit.[23] Thus, at no point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in
their cells with plywood amount to unusual and excessive punishment. This argument fails to impress us. Bell v. Wolfish pointed
out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention
inevitably interferes with a detainees desire to live comfortably. [24] The fact that the restrictions inherent in detention intrude into
the detainees desire to live comfortably does not convert those restrictions into punishment. [25] It is when the restrictions are
arbitrary and purposeless that courts will infer intent to punish. [26] Courts will also infer intent to punish even if the restriction
seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose. [27] Jail
officials are thus not required to use the least restrictive security measure. [28] They must only refrain from implementing a
restriction that appears excessive to the purpose it serves.[29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents concede, that the
essential objective of pretrial confinement is to insure the detainees presence at trial. While this interest
undoubtedly justifies the original decision to confine an individual in some manner, we do not
accept respondents argument that the Governments interest in ensuring a detainees presence at trial is
the only objective that may justify restraints and conditions once the decision is lawfully made to confine a
person. If the government could confine or otherwise infringe the liberty of detainees only to the extent
necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally
justified form of detention. The Government also has legitimate interests that stem from its need to
manage the facility in which the individual is detained. These legitimate operational concerns may require
administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the
detainee shows up at trial. For example, the Government must be able to take steps to maintain security
and order at the institution and make certain no weapons or illicit drugs reach detainees.Restraints that are
reasonably related to the institutions interest in maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would
not have experienced had he been released while awaiting trial. We need not here attempt to detail the
precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial
detention. It is enough simply to recognize that in addition to ensuring the detainees presence at trial, the
effective management of the detention facility once the individual is confined is a valid objective that may
justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such
restrictions are intended as punishment.[30]
An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or disability, and (2)
the purpose of the action is to punish the inmate.[31] Punishment also requires that the harm or disability be significantly greater
than, or be independent of, the inherent discomforts of confinement.[32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this
practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are
exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal
conviction.[34] Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.[35]Contact
visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband. [36] The restriction on contact
visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and
weapons.[37] The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the
sentiments of the detainees.[38]
Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of
internal security.[39] This case reaffirmed the hands-off doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint,
based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise. [40]
In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars,
which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical
contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The
arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford.
The limitation on the detainees physical contacts with visitors is a reasonable, non-punitive response to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This
measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one
cell to another. The boarded grills ensure security and prevent disorder and crime within the facility. The diminished illumination
and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not
inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in
separate cells, unlike ordinary cramped detention cells. The detainees are treated well and given regular meals. The Court of
Appeals noted that the cells are relatively clean and livable compared to the conditions now prevailing in the city and provincial
jails, which are congested with detainees. The Court of Appeals found the assailed measures to be reasonable considering that
the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples Army (NPA)
member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP Detention Center violated the detainees right
to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the
petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were
no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizens
privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of
convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated escapes. [41] Even in
the absence of statutes specifically allowing prison authorities from opening and inspecting mail, such practice was upheld based
on the principle of civil deaths.[42] Inmates were deemed to have no right to correspond confidentially with anyone. The only
restriction placed upon prison authorities was that the right of inspection should not be used to delay unreasonably the
communications between the inmate and his lawyer.[43]
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received respect.[44] The
confidential correspondences could not be censored.[45] The infringement of such privileged communication was held to be a
violation of the inmates First Amendment rights.[46] A prisoner has a right to consult with his attorney in absolute privacy, which
right is not abrogated by the legitimate interests of prison authorities in the administration of the institution.[47]Moreover, the risk
is small that attorneys will conspire in plots that threaten prison security.[48]
American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-
trial detainees. The case of Palmigiano v. Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees mail addressed to public officials, courts and counsel
was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of
pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S. Supreme Court held that
prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials
could not read such mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to
inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge
provided that (a)ll incoming and outgoing mail will be read and inspected, and no exception was made for
attorney-prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they
may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus
presented is whether letters determined or found to be from attorneys may be opened by prison authorities in
the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques
fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an attorney before
opening it for inspection, a near impossible task of administration would be imposed. We think it entirely
appropriate that the State require any such communications to be specially marked as originating from an
attorney, with his name and address being given, if they are to receive special treatment. It would also certainly
be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify
himself and his client to the prison officials, to assure that the letters marked privileged are actually from
members of the bar. As to the ability to open the mail in the presence ofinmates, this could in no way constitute
censorship, since the mail would not be read. Neither could it chill such communications, since the inmates
presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in
letters, even those from apparent attorneys, surely warrants prison officials opening the letters. We disagree
with the Court of Appeals that this should only be done in appropriate circumstances. Since a flexible test,
besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights
enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when
mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires. [51]
In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside
his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that
imprisonment carries with it the circumscription or loss of many significant rights. These constraints on
inmates, and in some cases the complete withdrawal of certain rights, are justified by the considerations
underlying our penal system. The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal
security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system
of justice, deterrence and retribution are factors in addition to correction. [53]
The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no
distinction as to the detainees limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States
holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or
discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading
it is also permissible. We quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close
and continual surveillance of inmates and their cells required to ensure institutional security and internal
order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to
what must be considered a paramount interest in institutional security. We believe that it is accepted by
our society that [l]oss of freedom of choice and privacy are inherent incidents of confinement.
The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as
courts in the U.S. ruled that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell
v. Wolfish reasoned that those who are detained prior to trial may in many cases be individuals who are charged with serious
crimes or who have prior records and may therefore pose a greater risk of escape than convicted inmates.[55]Valencia v.
Wiggins[56] further held that it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of
maintaining jail security.
American cases recognize that the unmonitored use of pre-trial detainees non-privileged mail poses a genuine threat
to jail security.[57] Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly
exposes his letter to possible inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation of privacy for his
incoming mail.[59] However, incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open
and inspect the mail for contraband but could not read the contents without violating the inmates right to correspond with his
lawyer.[60]The inspection of privileged mail is limited to physical contraband and not to verbal contraband.[61]
Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present
case violated the detainees right to privacy of communication. The letters were not in a sealed envelope. The inspection of the
folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and
their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the
detainees personal courier and not as their counsel when he received the letters for mailing. In the present case, since the
letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention
Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the
detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizens privacy rights[62] is a guarantee that is
available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is
subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of
their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of
the detainees and convicted prisoners, U.S. courts balance the guarantees of the Constitution with the legitimate concerns of
prison administrators.[63] The deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration.[64]

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup detat, a crime
punishable with reclusion perpetua.[65]The junior officers are not ordinary detainees but visible leaders of the Oakwood incident
involving an armed takeover of a civilian building in the heart of the financial district of the country. As members of the military
armed forces, the detainees are subject to the Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we
must give the military custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The
military custodian is in a better position to know the security risks involved in detaining the junior officers, together with the
suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks involved, we
should defer to the regulations adopted by the military custodian in the absence of patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the
courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional
rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive
relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However,habeas corpus is not
the proper mode to question conditions of confinement. [67] The writ of habeas corpus will only lie if what is challenged is the
fact or duration of confinement.[68]

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No.
78545.

No pronouncement as to costs.

SO ORDERED

G.R. No. L-68635 May 14, 1987
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO LAURETA,
AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No. 68635, entitled "EVA
MARAVILLA-ILUSTRE, vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."
RESOLUTION
PER CURIAM:
Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this Court promulgated
on March 12, 1987, finding him guilty of grave professional misconduct and suspending him indefinitely from the practice of
law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the same Resolution holding her in contempt and ordering her
to pay a fine of P1,000.00.
Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and due process of law
and by reason thereof the Order is null and void; that the acts of misconduct imputed to him are without basis; that the charge
against him that it was he who had circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded such
that, even in this Court's Resolution, his having distributed copies to the press is not stated positively; that the banner headline
which appeared In the Daily Express is regrettable but that he was not responsible for such "misleading headline;" that he "did
nothing of the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a former
newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the press in envelopes where
his name appears; "he himself would have written stories about the case in a manner that sells newspapers; even a series of juicy
articles perhaps, something that would have further subjected the respondent justices to far worse publicity;" that, on the
contrary, the press conference scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse
publicity resulting from the filing of the complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution
that was serialized in the Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he
"understands the cooperation because after all, the Court rendered a favorable judgment in the Bulletin union case last year;" that
he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben Rodriguez, "a long-time
personal friend" since he "can afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he
was called by a reporter of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were
confined to the filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its finality long ago; that
he is not Ilustre's counsel before the Tanodbayan and did not prepare the complaint filed before it, his professional services
having been terminated upon the final dismissal of Ilustre's case before this Court; that similarities in the language and
phraseology used in the Ilustre letters, in pleadings before this Court and before the Tanodbayan do not prove his authorship
since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that the discussions on the merits in
the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being competent to deal
with the case before him;" that he takes exception to the accusation that he has manifested lack of respect for and exposed to
public ridicule the two highest Courts of the land, all he did having been to call attention to errors or injustice committed in the
promulgation of judgments or orders; that he has "not authorized or assisted and/or abetted and could not have prevented the
contemptuous statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his client when these
alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer which is to the Court and
not to his client, a duty that he has always impressed upon his law students;" and finally, that "for the record, he is sorry for the
adverse publicity generated by the filing of the complaint against the Justices before the Tanodbayan."
In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged deprivation of her
constitutional right to due process. She maintains that as contempt proceedings are commonly treated as criminal in nature, the
mode of procedure and rules of evidence in criminal prosecution should be assimilated, as far as practicable, in this proceeding,
and that she should be given every opportunity to present her side. Additionally, she states that, with some sympathetic lawyers,
they made an "investigation" and learned that the Resolution of the First Division was arrived at without any deliberation by its
members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to pursue
a course which she thought was legal and peaceful; that there is nothing wrong in making public the manner of voting by the
Justices, and it was for that reason that she addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M.
Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and member
of the Supreme Court and a Division Chairman, respectively, the resolution of May 14, 1986 would not have aroused my
suspicion;" that instead of taking the law into her own hands or joining any violent movement, she took the legitimate step of
making a peaceful investigation into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation"
against those whom she felt had committed injustice against her "in an underhanded manner."
We deny reconsideration in both instances.
The argument premised on lack of hearing and due process, is not impressed with merit. What due process abhors is absolute
lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" does not necessarily
connote a "trial-type" proceeding. In the show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given
sufficient opportunity to inform this Court of the reasons why he should not be subjected to dispose action. His Answer, wherein
he prayed that the action against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was
also given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the official actions of
the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt proceeding against her be dismissed,
contained nineteen (19) pages, double spaced. Both were afforded ample latitude to explain matters fully. Atty. Laureta denied
having authored the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized to the press
copies of the complaint filed before said body, and his having committed acts unworthy of his profession. But the Court believed
otherwise and found that those letters and the charges levelled against the Justices concerned, of themselves and by themselves,
betray not only their malicious and contemptuous character, but also the lack of respect for the two highest Courts of the land, a
complete obliviousness to the fundamental principle of separation of powers, and a wanton disregard of the cardinal doctrine of
independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct
any further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA
712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.
(1)
In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause Resolution that his
professional services were terminated by Ilustre after the dismissal of the main petition by this Court; that he had nothing to do
with the contemptuous letters to the individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.
Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was furnished Atty. Laureta
as "counsel for the complainant" at his address of record. Of note, too, is the fact that it was he who was following up the
Complaint before the Tanodbayan and, after its dismissal, the Motion for Reconsideration of the Order of dismissal.
Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to serve copy of the
Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address of record, "101 F. Manalo St., Cubao,
Quezon City," having been informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta
where the latter's wife "voluntarily received the two copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670,
Rollo, Vol. 11).
That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the fact that she filed,
as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration" and subsequently the Motion for
Reconsideration. In that Petition Ilustre acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs.
Laureta received copy thereof. If, indeed, the lawyer-client relationship between her husband and Ilustre had been allegedly
completely severed, all Mrs. Laureta had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however,
service on Atty. Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened by the
fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre personally.
Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to comment on the
Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not have been pinpointed at
all. And if his disclaimer were the truth, the logical step for him to have taken was to refer the caller to the lawyer/s allegedly
assisting Ilustre, at the very least, out of elementary courtesy and propriety. But he did nothing of the sort. " He gave his 4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not
comment with alacrity. be located;

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion for 5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they
Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the serialized publication of the Per informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p.
Curiam Resolution of this Court and his being subjected to a scathing editorial by the same newspaper "because after all, the 672, Rollo, Vol. 11).
Court rendered a favorable judgment in the Bulletin union case last year." The malice lurking in that statement is most
unbecoming of an officer of the Court and is an added reason for denying reconsideration.
The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on Ilustre. He reported:

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution are more properly
2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of
addressed to the Tanodbayan, forgetting, however, his own discourse on the merits in his Answer to this Court's Resolution dated
judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly woman who
January 29, 1987. He thus incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical
admitted to be the owner of the house but vehemently refused to be Identified, and told me that she does
pronouncement in the Per Curiam Resolution of March 12, 1987, that Article 204 of the Revised Penal Code has no application
not know the addressee Maravilla, and told me further that she always meets different persons looking for
to the members of a collegiate Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that a
Miss Maravilla because the latter always gives the address of her house;
collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in the same Per Curiam Resolution on the
fundamental principle of separation of powers and of checks and balances, pursuant to which it is this Court "entrusted
exclusively with the judicial power to adjudicate with finality all justifiable disputes, public and private. No other department or 3. That, I was reminded of an incident that I also experienced in the same place trying to serve a resolution
agency may pass upon its judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of to Miss Maravilla which was returned unserved because she is not known in the place; ... (p. 674, Rollo,
sound practice." Vol. II).

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied by environmental
facts and circumstances. His apologetic stance for the "adverse publicity" generated by the filing of the charges against the
Justices concerned before the Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very
purpose. The threat to bring the case to "another forum of justice" was implemented to the fun. Besides, he misses the heart of
the matter. Exposure to the glare of publicity is an occupational hazard. If he has been visited with disciplinary sanctions it is
because by his conduct, acts and statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and
conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable disputes," and
to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly administration of justice.
In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much less a reversal,
of our finding that he is guilty of grave professional misconduct that renders him unfit to continue to be entrusted with the duties
and responsibilities pertaining to an attorney and officer of the Court.
And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that address at 101
Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not a resident of and that she was
unknown thereat. If for her contumacious elusiveness and lack of candor alone, Ilustre deserves no further standing before this
Court.
ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside of the order
suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt are DENIED,
and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice,
or, suffer imprisonment for ten (10) days upon failure to pay said fine within the stipulated period.
SO ORDERED.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or clarification. She and
her counsel have refused to accept the untenability of their case and the inevitability of losing in Court. They have allowed
suspicion alone to blind their actions and in so doing degraded the administration of justice. "Investigation" was utterly uncalled
for. All conclusions and judgments of the Court, be they en banc or by Division, are arrived at only after deliberation. The fact
that no dissent was indicated in the Minutes of the proceedings held on May 14, 1986 showed that the members of the Division
voted unanimously. Court personnel are not in a position to know the voting in any case because all deliberations are held behind
closed doors without any one of them being present. No malicious inferences should have been drawn from their inability to
furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General never came into the picture. It
was Justice Abad Santos, and not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986
denying the Petition was rendered. Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en
banc upheld the challenged Resolutions of the First Division emphasizes the irrespective of Ilustre's case irrespective of the
personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three of them failed to
serve on her personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of record. Mrs. Laureta
informed process server Lorenzo C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala,
another process server, went to that address to serve copy of the Resolution but he reported:
G.R. No. 152072 January 31, 2006 Dear Sir and Madam:

ROMEO G. ROXAS and SANTIAGO N. PASTOR, Petitioners, This is to confirm in writing our verbal negotiations for us to represent you in the expropriation proceedings filed
vs. by the National Housing Authority against your goodselves before the Court of First Instance of Rizal (now the
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, ELIZABETH R. Regional Trial Court) and docketed as Civil Case No. 26804. Our representation shall also include the areas taken
GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES, TERESITA REYES, JOSE REYES and over by the Ministry of Public Works and Highways which now formed part of the Marcos Highway at Antipolo,
ANTONIO REYES, Respondents. Rizal.

x----------------------------------x The areas affected are the following:

G.R. No. 152104 January 31, 2006 xxxx

ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, ELIZABETH R. We shall endeavor to secure the just compensation with the National Housing Authority and other governmental
GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES, TERESITA REYES, JOSE REYES and agencies at a price of ELEVEN PESOS (P11.00) or more per square meter. Any lower amount shall not entitle us to
ANTONIO REYES, Petitioners, any attorney’s fees. At such price of P11.00 per square meter or more our contingent fee[s] is THIRTY PERCENT
vs. (30%) of the just compensation.
THE NATIONAL HOUSING AUTHORITY, JOSE B. H. PEDROSA, ROMEO G. ROXAS and SANTIAGO N.
PASTOR, Respondents.
The other terms and conditions of our proposal are:

DECISION
xxxx

CHICO-NAZARIO, J.:
5. You are willing to accept NHA 5-year bonds as part payment up to 75% of the total compensation. In the event
1 2
of your desire to discount the bonds, we shall assist to have them discounted at 75% of its face value.
Before Us are two petitions for review on certiorari which were consolidated per Resolution of this Court dated 27 November
2002. The petitioners in G.R. No. 152072, Attys. Romeo G. Roxas and Santiago N. Pastor, seek the reversal and annulment of
the Decision3 and Resolution4 of the Court of Appeals dated 25 June 2001 and 06 February 2002, respectively. The petitioners in 6. Our lawyer’s fees shall be in the proportion of the cash/bonds ratio of the just compensation. Likewise our fees
G.R. No. 152104, the Zuzuarreguis, on the other hand, pray that the said Decision and Resolution of the Court of Appeals be are subject to 10% withholding tax.
modified. Said Decision and Resolution reversed and set aside the decision of the Regional Trial Court (RTC), Branch 98,
Quezon City, dated 03 January 1994. xxxx

THE ANTECEDENTS Should the above proposal be acceptable to your goodselves, kindly signify your formal acceptance as (sic) the
space hereunder provided.
The instant cases had their beginnings in 1977 when the National Housing Authority (NHA) filed expropriation proceedings
against the Zuzuarreguis, petitioners in G.R. No. 152104, for parcels of land belonging to the latter situated in Antipolo, Rizal, Very truly yours,
with a total land area of 1,790,570.36 square meters, more or less. This case was lodged before the RTC, Branch 141,
Municipality of Makati,5 docketed therein as Civil Case No. 26804 entitled, "National Housing Authority v. Pilar Ibañez Vda. De (Sgd.) (Sgd.)
Zuzuarregui, et al." SANTIAGO N. PASTOR ROMEO G. ROXAS
Lawyer Lawyer
CONFORME:
On 25 May 1983, said case was ordered archived6 by Branch 141.
(Sgd.) (Sgd.)
ANTONIO DE ZUZUARREGUI, JR. PACITA JAVIER
About a month before the aforecited case was ordered archived, the Zuzuarreguis engaged the legal services of Attys. Romeo G.
In my behalf and
Roxas and Santiago N. Pastor, to represent them in Civil Case No. 26804. This was sealed by a Letter-Agreement dated 22 April
1983, which is partly reproduced hereunder: as heir to the late Pilar Y. vda. De Zuzuarregui as heir to the late Jose De Zuzuarregui7

April 22, 1983 A Motion to Set Case for Hearing,8 dated 14 February 1984, was filed by Attys. Roxas and Pastor in Civil Case No. 26804,
praying that the case be revived and be set for hearing by the court at the earliest date available in its calendar.
Mr. Antonio de Zuzuarregui, Jr.
Mrs. Pacita Javier (as heir to the late Jose de Zuzuarregui) The appropriate proceedings thereafter ensued. On 29 October 1984, a Partial Decision was rendered by Branch 141 in Civil
Mr. Antonio de Zuzuarregui ( as heir to the late Pilar Y. vda. De Zuzuarregui) Case No. 26804 fixing the just compensation to be paid to the Zuzuarreguis at P30.00 per square meter.
The NHA filed a Motion for Reconsideration9 dated 23 November 1984 praying that the Partial Decision be reconsidered and set
aside, and a new one rendered lowering the amount of just compensation in accordance with applicable laws. Pending resolution
thereof, a Joint Special Power of Attorney was executed by Antonio De Zuzuarregui, Jr., Enrique De Zuzuarregui and Pacita
Javier, in favor of Attys. Roxas and Pastor, viz:
ENRIQUE DE ZUZUARREGUI

(Sgd.)
PACITA JAVIER10

JOINT SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

On 22 November 1985, a Special Power of Attorney was executed by Beatriz Zuzuarregui vda. De Reyes in favor of Attys.
That We, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI and PACITA
Romeo G. Roxas, Santiago Pastor and Basilio H. Toquero, quoted as follows:
JAVIER, all of legal age, …, do hereby appoint, name and constitute ATTYS. ROMEO G.
ROXAS and SANTIAGO PASTOR, to be our true and lawful attorneys to act in our names and on
our behalves to do and execute all or any of the following acts and deeds subject to our approval:

xxxx
SPECIAL POWER OF ATTORNEY
(2) To represent us in the negotiations for a compromise with the National Housing
Authority for our properties subject of the above case; KNOW ALL MEN BY THESE PRESENTS:

(3) To negotiate for and in our behalves for the settlement of the just compensation of
our properties payable in cash or in bonds;
(4) To sign and prepare all papers relative to the preparation of a Compromise
Agreement or any papers and communications which shall eventually bear our
signatures; and
(5) That this Special Power of Attorney is enforce (sic) as long as ATTYS. ROMEO G.
ROXAS AND SANTIAGO PASTOR are our lawyers in Civil Case No. 26804 before
the Regional Trial Court, Makati, Branch CXLI.
HEREBY GIVING AND GRANTING unto our said attorneys full power and authority
whatsoever requisite or necessary or proper to be done in or about the premises, as fully to all
intents and purposes as we might or could lawfully do if personally present, and hereby ratifying
and confirming all that our said attorneys shall do or cause to be done under and by virtue of these
presents.
That I, BEATRIZ ZUZUARREGUI VDA. DE REYES, Filipino, of legal age, widow, and a
resident of E. Rodriguez Ave., Quezon City, Philippines do hereby appoint, name and constitute
ATTYS. ROMEO G. ROXAS, SANTIAGO PASTOR and BASILIO H. TOQUERO, to be my
true and lawful attorneys … :
1. To represent me in the negotiation for a Compromise with the National Housing
Authority for my properties subject to my approval in CIVIL CASE No. 26804,
entitled "National Housing Authority vs. Pilar Ibañez de Zuzuarregui, et al., before the
Regional Trial Court, Makati, Branch CXLI;
2. To negotiate for and in my behalf for the settlement of the just compensation of my
properties payable in cash or in bond, subject to my approval;
3. To sign and prepare all papers relative to the preparation of a Compromise
Agreement or any papers and communications which shall eventually bear my
signature;

IN WITNESS WHEREOF, We have hereunto set our hands this 26th day of August, 1985, in 4. To accept for and in my behalf payments for my properties after the Compromise
Makati, M. M., Philippines. Agreement is duly approved by the Court, the actual receipts of which payments shall
be signed by me.
(Sgd.)
ANTONIO DE ZUZUARREGUI, JR.1avvph!l.ne+ HEREBY GIVING AND GRANTING unto my said attorneys full power and authority
whatsoever requisite, necessary or proper … to be done under and by virtue of these presents.
(Sgd.)
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of November 1985, in the
 (Sgd.)
ENRIQUE DE ZUZUARREGUI

CONFORME:
City of Manila, Philippines.

(Sgd.)ATTY. ROMEO G. ROXAS

(Sgd.)
BEATRIZ ZUZUARREGUI VDA. DE REYES11
(Sgd.)ATTY. SANTIAGO PASTOR12

On 10 December 1985, a Letter-Agreement was executed by and between Antonio Zuzuarregui, Jr., Pacita Javier and Enrique
De Zuzuarregui, on the one hand, and Attys. Romeo G. Roxas and Santiago Pastor, on the other. The said Letter-Agreement
reads:
December 10, 1985
Resolution No. 117413 dated 16 December 1985 was issued by the NHA stating that the Zuzuarregui property would be acquired
at a cost of P19.50 per square meter; that the Zuzuarreguis would be paid in NHA Bonds, subject to the availability of funds; and
that the yield on the bonds to be paid to the Zuzuarreguis shall be based on the Central Bank rate at the time of payment.
As a result of the aforesaid NHA Resolution, a Compromise Agreement was executed between the Zuzuarreguis and the NHA in
Civil Case No. 26804. The Compromise Agreement, stipulated among other things, that the just compensation of the
Zuzuarregui properties would be at P19.50 per square meter payable in NHA Bonds. In a Decision dated 20 December 1985, the
RTC, Branch 141, Makati, approved the Compromise Agreement submitted by the parties.

Atty. Romeo G. Roxas
Atty. Santiago Pastor
Makati Executive Center
Salcedo Village, Makati
Dear Atty. Roxas & Atty. Pastor:
This will confirm an amendment to our agreement regarding your attorney’s fees as our lawyers and counsels for the
Zuzuarregui’s properties expropriated by National Housing Authority covering ONE HUNDRED SEVENTY-NINE (179)
HECTARES, more or less, covered by TCT Nos. 138340, 85633 and 85634 and filed as Civil Case No. 26804.
We hereby confirm and agree that we are willing to accept as final and complete settlement for our 179 hectares expropriated by
NHA a price of SEVENTEEN PESOS (P17.00) per square meter, or for a total of THIRTY MILLION FOUR HUNDRED
THOUSAND PESOS (P30.4 Million), all payable in NHA Bonds.
We also agree and confirm that for and in consideration of your services as our lawyers and counsels in the said expropriation
case, we commit and bind ourselves to pay to you, your heirs or assignees-in-interest, as your contingent attorney’s fees any and
all amount in excess of the SEVENTEEN PESOS (P17.00) per square meter payable in NHA bonds as mentioned above.
This Letter Agreement serves also as your authority to collect directly from NHA the amount pertaining to you as your
contingent attorney’s fees.
On 27 December 1985, the NHA Legal Department, through Atty. Jose B. H. Pedrosa, released to Atty. Romeo G. Roxas, in
behalf of the Zuzuarreguis, the amount of P20,000,000.00 in NHA Bearer Bonds as "partial payment for several parcels of land
with a total area of 1,790,570.36 square meters located in Antipolo, Rizal."14 On even date, Atty. Romeo G. Roxas delivered
NHA Bonds to Antonio De Zuzuarregui in the amount of P15,000,000.00.15 On 04 February 1986, the amount of P34,500,000.00
in Bearer Bonds was again released by the NHA to Atty. Romeo G. Roxas in behalf of the Zuzuarreguis.16 On 14 February 1986,
the Zuzuarreguis issued a receipt17 for receiving the amount of P30,070,000.00. This receipt included the P15,000,000.00 given
to them last 27 December 1985. Again on 17 February 1986, the Zuzuarreguis, through Beatriz Zuzuarregui vda. De Reyes,
issued another receipt for the amount of P450,000.00 in NHA bonds.18 The total amount in NHA bonds released to Atty. Romeo
G. Roxas in behalf of the Zuzuarreguis amounted to P54,500,000.00. Out of this amount, the records show that the amount
turned over to the Zuzuarreguis by Atty. Roxas amounted to P30,520,000.00 in NHA bonds.
Computed at P19.50 per square meter, the 1,790,570.36 square meters property of the Zuzuarreguis was expropriated at a total
price of P34,916,122.00. The total amount released by the NHA was P54,500,000.00. The difference of P19,583,878.00 is,
undoubtedly, the yield on the bonds.
On 25 August 1987, a letter19 was sent by the Zuzuarreguis’ new counsel, Jose F. Gonzalez, to Attys. Roxas and Pastor,
demanding that the latter deliver to the Zuzuarreguis the yield corresponding to bonds paid by the NHA within a period of 10
days from receipt, under pain of administrative, civil and/or criminal action.
Attys. Roxas and Pastor answered via a letter dated 21 September 1987 explaining their side of the story. They stated therein,
among other things, that the amount that they got seems huge from the surface, but it just actually passed their hands, as it did
not really go to them.20

This Letter Agreement hereby amends and supersedes our previous agreement regarding your attorney’s fees as our lawyers and On 29 September 1987, a letter21 was sent by the Zuzuarreguis through Antonio De Zuzuarregui, Jr., to Attys. Romeo G. Roxas
counsels in the above-mentioned expropriation case. and Santiago N. Pastor, informing the latter that their services as counsels of the Zuzuarreguis (except Betty) in the expropriation
proceedings filed by the NHA, docketed as Civil Case No. 26804, was being formally terminated.
Very truly yours,
Apparently unsatisfied with the explanation of Attys. Roxas and Pastor, the Zuzuarreguis filed a civil action for Sum of Money
and Damages on 14 November 1989 before the RTC, Quezon City, Branch 98, docketed as Civil Case No. Q-89-4013, against
(Sgd.) ANTONIO DE ZUZUARREGUI, JR.
the NHA, Jose B. H. Pedrosa, Atty. Romeo G. Roxas and Atty. Santiago N. Pastor. The Zuzuarreguis demanded that the yield on
In my behalf as heir to the late Pilar I. vda. de Zuzuarregui
the NHA bonds be turned over to them.

(Sgd.)PACITA JAVIER
After due hearing, a Decision22 in Civil Case No. Q-89-4013 was rendered on 03 January 1994, dismissing the Complaint. The
As heir to the late Jose De Zuzuarregui
dispositive portion reads:
WHEREFORE, in view of the foregoing consideration[s], judgment is hereby rendered ordering the dismissal of the complaint
against all the defendants; and, further ordering plaintiffs, jointly and solidarily, to:
1. Pay each of the defendants Romeo G. Roxas, Santiago Pastor and Jose B. H. Perdosa, the amount of P200,000.00,
P200,000.00 and P100,000.00, respectively, as moral damages;
2. Pay each of the defendants Roxas, Pastor and Pedrosa, the amount of P50,000.00, P50,000.00, and P25,000.00,
respectively as exemplary damages;
3. Pay attorney’s fees to defendants Roxas and Pastor in the amount of P20,000.00; and
4. Pay the costs of this suit.
A Notice of Appeal23 dated 10 February 1994 was filed by the Zuzuarreguis. Subsequently, on 26 April 1995, the Zuzuarreguis
filed their appeal brief with the Court of Appeals. The case was docketed as CA-G.R. CV No. 45732.
A Decision24 was eventually promulgated by the Fifteenth Division of the Court of Appeals on 25 June 2001, reversing and
setting aside the ruling of Branch 98, viz:
Therefore, We find that the amount of P4,476,426.275 is, in the opinion of this Court, commensurate to the services rendered by
defendants-appellees. This amount has been arrived at by giving to defendants-appellees P2.50 per square meter of the
1,790,570.51 square meter expropriated properties of herein plaintiffs-appellants.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision dated January 3, 1994 of the Regional Trial Court, National
Capital Judicial Region, Branch 98, Quezon City in Civil Case No. 89-4013 entitled "Antonio Zuzuarregui, Jr., et al. versus
National Housing Authority, et al." for "Sum of Money and Damages," is hereby REVERSED and SET ASIDE. Defendants-
Appellees Roxas and Pastor are hereby ordered to return to plaintiffs-appellants the amount of P12,596,696.425, the balance
from the P17,073,122.70, received as yield from NHA bonds after deducting the reasonable attorney’s fees in the amount of
P4,476,426.275.25
Attys. Roxas and Pastor filed a Motion for Reconsideration26 on 25 July 2001. The Zuzuarreguis also filed a Motion for
Reconsideration27 on 30 July 2001, not having been satisfied with the award, while the NHA and Pedrosa filed their Motions for
Reconsideration28 on 03 August 2001.
In a Resolution dated 06 February 2002, the Court of Appeals denied for lack of merit all the Motions for Reconsideration.
On 05 March 2002, Attys. Roxas and Pastor filed a Petition for Review on Certiorari29 assailing the Decision of the Court of
Appeals, docketed as G.R. No. 152072. Likewise, on 21 March 2002, the Zuzuarreguis filed their own Petition for Review on
Certiorari30 assailing the same Decision, docketed as G.R. No. 152104.1avvph!l.ne+
ASSIGNMENT OF ERRORS
Attys. Roxas and Pastor, petitioners in G.R. No. 152072, assign as errors the following:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN HOLDING THAT THE
LETTER-AGREEMENT DATED DECEMBER 10, 1985 CANNOT BE ALLOWED TO STAND AS THE LAW BETWEEN
THE PARTIES; and
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN HOLDING THAT
DEFENDANTS-APPELLANTS, HEREIN PETITIONERS, CONCEALED TO THE PLAINTIFFS-APPELLEES, HEREIN
RESPONDENTS, THE YIELD OF THE NHA BONDS31
The Zuzuarreguis, petitioners in G.R. No. 152101, on the other hand, assign as errors the following:
I
THE COURT OF APPEALS ERRED IN AWARDING TO PETITIONERS THE PRINCIPAL AMOUNT OF ONLY
P12,596,696.425 AND NOT P17,073,122.70 MAKING A DIFFERENCE OF P4,476,426.28
II
THE RESPONDENTS SHOULD BE HELD LIABLE FOR INTEREST FROM THE DATE OF THE FILING OF THE
COMPLAINT UNTIL FULLY PAID
III
THE RESPONDENTS SHOULD BE HELD LIABE FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S
FEES
IV
THE RESPONDENTS NHA AND JOSE B.H. PEDROSA ARE JOINTLY AND SEVERALLY LIABLE WITH
RESPONDENTS ROXAS AND PASTOR32
ISSUE FOR RESOLUTION
Drawn from the above assignment of errors, it is patent that the principal issue that must be addressed by this Court is:
WHETHER OR NOT THE LETTER-AGREEMENT DATED 10 DECEMBER 1985, EXECUTED BY THE
ZUZUARREGUIS, AND ATTYS. ROXAS AND PASTOR, FIXING THE EXACT AMOUNT THAT MUST GO TO THE
FORMER, SHOULD STAND AS LAW BETWEEN THE PARTIES.
THE COURT’S RULING
Attys. Roxas and Pastor, petitioners in G.R. No. 152072, contend in the main that the Zuzuarreguis are only entitled to the
amount of P17.00 per square meter for the 1,790,570.36 square meters expropriated by the government. This was, according to
them, embodied in the Letter-Agreement dated 10 December 1985, wherein the Zuzuarreguis agreed to accept the price
of P17.00 per square meter. Besides, Attys. Roxas and Pastor contend that the price ofP17.00 was even way above the P11.00
that the Zuzuarreguis were willing to accept for their properties under the Letter of Engagement executed by the parties earlier
on 22 April 1983. Computed at P17.00 per square meter, they stress that the amount that should go to the Zuzuarreguis for their
1,790,570.36 square meters property should beP30,439,696.10, and that in fact the Zuzuarreguis have received P30,520,000.00.
The Letter-Agreement dated 10 December 1985 should thus stand as law between the parties. Since this Letter-Agreement,
which was "as plain and simple as can be such that there is no need for any further construction," already fixed the amount that
would go to the Zuzuarreguis (P17.00 per square meter), then it should be so.
Attys. Roxas and Pastor further assert that the receipts issued by the Zuzuarreguis dated 14 February 1986 and 17 February 1986
indicated that the amounts received by the latter were in "full and final payment" for the subject properties.
The NHA, for its part, insists that there was no conspiracy between Attys. Roxas and Pastor on the one hand, and the NHA and
Atty. Pedrosa on the other, on the application of yields from NHA bonds.33 The Zuzuarreguis, according to the NHA, "miserably
failed to substantiate and establish conspiracy" between them.
The Zuzuarreguis, for their part, though they were triumphant in the Court of Appeals, insist that the amounts awarded them
were not enough. According to them, the P12,596,696.425 awarded by the Court of Appeals was not correct. They should have
been awarded the amount of P17,073,122.70. Quoting the Zuzuarreguis:
Respondents Roxas and Pastor retained for themselves the amount of P3,980,000.00 which represented the agreed attorney’s fees
of Roxas and Pastor at P2.50 per square meter. The amount of P20,000,000.00 representing the yield of all the bearer bonds was,
in the words of the Court of Appeals, "deliberately hidden" by respondents Roxas and Pastor from petitioners. By mathematical
computation, the P20,000,000.00 yield should be proportionately divided at the ratio of P17.00 (petitioners’) and P2.50 (share of
respondents Roxas and Pastor). Following this ratio of division, of the P20,000,000.00 yield, P17,073,122.70 should pertain to
petitioners and the balance of P2,926,877.30 to respondents Roxas and Pastor. Add this amount to the total of P3,980,000.00 at
the agreed rate of P2.50 per square meter, the total attorney’s fees of respondents Roxas and Pastor should be P6,906,877.30, not
bad, again in the words of the Court of Appeals, for handling "a simple expropriation case which ended up in a compromise
agreement." It was, therefore, in error to still deduct the amount of P4,476,426.28 from petitioners share in the yield in the
amount of P17,073,122.70 leaving then only P12,596,696.42.
What was done, however, is that the product of 1,790,570.36 sq m. (area of the expropriated land of petitioners) and P2.50 which
is 4,476,426.28 was again deducted from the P17,073,122.70 which is the corresponding share of the petitioners out of the total
yield of P20,000,000.00. If this were a criminal case, petitioners were being sentenced twice for the same offense. 34
The Zuzuarreguis further insist that legal interest on the amount of P17,073,122.70 be imposed from the date of the filing of the
complaint, including moral and exemplary damages, and attorney’s fees.
We sustain the Court of Appeals, but with modification in the computation.
A contract is a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give
something or to render some service.35 Contracts shall be obligatory, in whatever form they may have been entered into,
provided all the essential requisites for their validity are present.36
Under Article 1318 of the Civil Code, there are three essential requisites which must concur in order to give rise to a binding
contract: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the
obligation which is established.37
All these requisites were present in the execution of the Letter-Agreement.
Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the
contract.38 The Zuzuarreguis, in entering into the Letter-Agreement, fully gave their consent thereto. In fact, it was them (the
Zuzuarreguis) who sent the said letter to Attys. Roxas and Pastor, for the purpose of confirming all the matters which they had
agreed upon previously. There is absolutely no evidence to show that anybody was forced into entering into the Letter-
Agreement. Verily, its existence, due execution and contents were admitted by the Zuzuarreguis themselves. 39
The second requisite is the object certain. The objects in this case are twofold. One is the money that will go to the Zuzuarreguis
(P17.00 per square meter), and two, the money that will go to Attys. Roxas and Pastor (any and all amount in excess of P17.00
per square meter). There was certainty as to the amount that will go to the Zuzuarreguis, and there was likewise certainty as to
what amount will go to Attys. Roxas and Pastor.
The cause is the legal service that was provided by Attys. Roxas and Pastor. In general, cause is the why of the contract or the
essential reason which moves the contracting parties to enter into the contract. 40
It is basic that a contract is the law between the parties.41 Obligations arising from contracts have the force of law between the
contracting parties and should be complied with in good faith. Unless the stipulations in a contract are contrary to law, morals,
good customs, public order or public policy, the same are binding as between the parties. 42
In Licudan v. Court of Appeals,43 we did not allow the Contract for Professional Services between the counsel and his client to
stand as the law between them as the stipulation for the lawyer’s compensation was unconscionable and unreasonable. We said:
Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio
Licudan for himself and on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan
who both manifested in open court that they gave their free and willing consent to the said contract, we cannot allow the said
contract to stand as the law between the parties involved considering that the rule that in the presence of a contract for
professional services duly executed by the parties thereto, the same becomes the law between the said parties is not absolute but
admits an exception – that the stipulations therein are not contrary to law, good morals, good customs, public policy or public
order.44
Under the contract in question, Attys. Roxas and Pastor are to receive contingent fees 45 for their professional services. It is a
deeply-rooted rule that contingent fees are not per se prohibited by law. They are sanctioned by Canon 13 of the Canons of
Professional Ethics, viz:
13. Contingent Fees. –
A contract for contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including
the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness.
and Canon 20, Rule 20.01 of the Code of Professional Responsibility,46 viz:
CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.
Rule 20.01. – A lawyer shall be guided by the following factors in determining his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the question involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of the proffered case;
(f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to the client from the service;
(h) The contingency or certainty of compensation;
 (i) The character of the employment, whether occasional or established; and We likewise cannot hold the NHA and Atty. Pedrosa jointly and severally liable to the Zuzuarreguis for there is no evidence to
show conspiracy between them.
(j) The professional standing of the lawyer.
WHEREFORE, in view of all the foregoing considerations, the Decision and Resolution of the Court of Appeals dated 25 June
2001 and 06 February 2002, respectively, are AFFIRMED but with the MODIFICATION that Attys. Romeo G. Roxas and
However, in cases where contingent fees are sanctioned by law, the same should be reasonable under all the circumstances of the
Santiago N. Pastor are hereby ordered to return to the Zuzuarreguis the amount of P17,073,224.84. No costs.
case, and should always be subject to the supervision of a court, as to its reasonableness, 47such that under Canon 20 of the Code
of Professional Responsibility, a lawyer is tasked to charge only fair and reasonable fees.
SO ORDERED.
Indubitably entwined with the lawyer’s duty to charge only reasonable fees is the power of this Court to reduce the amount of
attorney’s fees if the same is excessive and unconscionable.48 Thus, Section 24, Rule 138 of the Rules of Court partly states:

SEC. 24. Compensation of attorneys; agreement as to fees. – An attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the
extent of the services rendered, and the professional standing of the attorney. x x x. A written contract for services shall control
the amount to be paid therefore unless found by the court to be unconscionable or unreasonable.

Attorney’s fees are unconscionable if they affront one’s sense of justice, decency or reasonableness. 49 It becomes axiomatic
therefore, that power to determine the reasonableness or the, unconscionable character of attorney's fees stipulated by the parties
is a matter falling within the regulatory prerogative of the courts.50

In the instant case, Attys. Roxas and Pastor received an amount which was equal to forty-four percent (44%) of the just
compensation paid (including the yield on the bonds) by the NHA to the Zuzuarreguis, or an amount equivalent to
P23,980,000.00 of the P54,500,000.00. Considering that there was no full blown hearing in the expropriation case, ending as it
did in a Compromise Agreement, the 44% is, undeniably, unconscionable and excessive under the circumstances. Its reduction
is, therefore, in order. This is in accordance with our ruling in the earlier case of Tanhueco v. De Dumo 51, where we reduced the
amount of attorney’s fees from sixty percent (60%) to fifteen percent (15%), for being excessive and unreasonable.

It is imperative that the contingent fees received by Attys. Roxas and Pastor must be equitably reduced. In the opinion of this
Court, the yield that corresponds to the percentage share of the Zuzuarreguis in the P19.50 per square meter just compensation
paid by the NHA must be returned by Attys. Roxas and Pastor.1avvph!l.ne+

The yield on the NHA bonds amounted to P19,583,878.00. This amount must therefore be divided between the Zuzuarreguis, on
the one hand, and Attys. Roxas and Pastor, on the other. The division must be pro rata. The amount of P17.00 that should go to
the Zuzuarreguis represents 87.18% of the P19.50 per square meter just compensation, The P2.50 per square meter that was to go
to Attys. Roxas and Pastor, on the other hand, represents 12.82%.

The Zuzuarreguis are entitled to the yield equal to 87.18% of the P19,583,878.00, while Attys. Roxas and Pastor are entitled to
12.82% of said amount. The amount corresponding to 87.17% of P19,583,878.00 is P17,073,224.84. This is the yield that the
Zuzuarreguis are entitled to. Attys. Roxas and Pastor, on the other hand, are entitled to P2,510,653.16.

Attys. Roxas and Pastor, in the opinion of this Court, were not shortchanged for their efforts for they would still be earning or
actually earned attorney’s fees in the amount of P6,987,078.75 (P4,476,425.59 + P2,510,653.16).

The amount of P17,073,224.84 must therefore be returned by Attys. Roxas and Pastor to the Zuzuarreguis. They can take this out
from the yield in the amount of P19,583,878.00 which they have appropriated for themselves.

On the issue of moral and exemplary damages, we cannot award the same for there was no direct showing of bad faith on the
part of Attys. Roxas and Pastor, for as we said earlier, contingency fees are not per se prohibited by law. It is only necessary that
it be reduced when excessive and unconscionable, which we have already done.
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134
and JUAN PONCE ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd.
(Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the
histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local
movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General
Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and
Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the
intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected
motion picture enclosing a synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern history
that-made possible the Peaceful revolution in the Philippines in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof
Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution
from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our huge international audience
understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the
average American attitude to the Phihppinence —once a colony, now the home of crucially important
military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there
appears to be no alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the
events as it becomes dear that the time has come for a change. Through Angle and her relationship with
one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent
in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and
ultimately their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises
the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left
wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl, politically
moderate and very much in love with Tony. Ultimately, she must choose between her love and the
revolution.
Through the interviews and experiences of these central characters, we show the complex nature of
Filipino society, and thintertwining series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters and experience directly dramatic
recreation of the revolution. The story incorporates actual documentary footage filmed during the period
which we hope will capture the unique atmosphere and forces that combined to overthrow President
Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays to his
credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,'
Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep understanding of
the Philippines, who has worked on the research for this project for some 18 months. Together with Davi
Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that
occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is
designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional
characters interwoven with real events, and utilizing actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation,
reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television
production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the
production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script,
and petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of
Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin
petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-
series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24
February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary
injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending
that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary
injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the
dispositive portion of which reads thus:
 WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and
entities employed or under contract with them, including actors, actresses and members of the production
staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from
producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise
Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from
this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever
damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff
was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an
urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a
Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated
Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the
implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and
allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any
reference to private respondent or his family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.
I from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and
The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and
"The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution.
Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected
mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom
includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them
through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of
expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for
information, education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice Fernando, speaking for the Court,
explained:
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of
the artistic impulse. Their effect on the perception by our people of issues and public officials or public
figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson(343 US
495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between
what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a
diminution of the basic right to free expression. ... 4
This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the
circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media
facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly
require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media
constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from
the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such
constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R.
Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the
precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let
alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published
about him constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and
dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside
the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which
included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the
widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture
Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros
Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party
then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court,
through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or
for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book
entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority
the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am
St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the
privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own
rights in the character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the life of Moises Padilla
since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not
automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person, no
matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of
Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would
be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of
expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to
produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying
pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the
constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he
had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The
right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties"
 (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27
SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for
permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media
as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando
on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed
consideration of the interplay of interests observable in given situation or type of situation" (Separation
Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).
4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were
taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and
his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of reputation by appearing before the
public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The
list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes
and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a
lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon
him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons
In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of
were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to
freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold
it, and so could not complaint when they received it; that their personalities and their affairs has already
that under the particular circumstances presented, and considering the obligations assumed in the
public, and could no longer be regarded as their own private business; and that the press had a privilege,
Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld
under the Constitution, to inform the public about those who have become legitimate matters of public
particularly because the limits of freedom of expression are reached when expression touches upon
interest. On one or another of these grounds, and sometimes all, it was held that there was no liability
matters of essentially private concern." 13
when they were given additional publicity, as to matters legitimately within the scope of the public interest
they had aroused.
Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the
Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected
The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the
motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon
desire and the right of the public to know what is going on in the world, and the freedom of the press and
private respondent's "right of privacy."
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
1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the public attention.' To a very great extent the press, with its experience or instinct as to what its readers will
respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners want, has succeeded in making its own definination of news, as a glance at any morning newspaper will
from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages
restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child
Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and
restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.
constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary
Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20)
The privilege of enlightening the public was not, however, limited, to the dissemination of news in the
days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private
scene of current events. It extended also to information or education, or even entertainment and
respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no
amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human
"clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert.
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
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio the public may be permitted to read; and they were understandably liberal in allowing the benefit of the
de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is doubt. 15
one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly
critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an
Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating
appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the
events of the change of government in February 1986. Because his participation therein was major in character, a film
synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of
reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly
private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at
unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent
least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce
has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political
Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is
campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and
compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events
television, he sits in a very public place, the Senate of the Philippines.
of the change of government in February 1986.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and
expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly
exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court
truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in
understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep
depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the
that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day
private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The
Revolution" any part of the private life of private respondent or that of any member of his family.
proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of
essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of
private respondent in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the
EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such
portrayal may be carried out even without a license from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated
25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-
413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and
PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected
mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the
complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that
the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in
refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are
apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private
respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the
cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for
invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners'
that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point
because the parties here and those in Civil Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the
lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the
complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and
having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his
privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court
granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court
on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16
March 1988 and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with
Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction,
hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case
No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any
Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President
of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has
not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on
October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I .
assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by
the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031,
amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the
manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of
October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full
text of which (Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be
submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the
people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the
referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of
Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the
Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of
age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities,
rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members
thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the
interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of
the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang
Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime
Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities
of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President
(Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as
many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof,
or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter
for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time
the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local
interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-
Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for
Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on
Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16
has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General
principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of
this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his
son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees
relative to the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a
constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of
1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite
a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would
amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of
age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the
valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in
result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined,
upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million
Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said
funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present
case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review.
We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8This is especially true in
cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the
terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in
the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active
session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1
and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the
proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended,
raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the
force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one,
within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving
the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and
no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..."
The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The
amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of
the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his
constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process
confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be
found, the actuation of the President would merely be abrutum fulmen. If the Constitution provides how it may be amended, the
judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid
or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the
President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by
their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution
in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the
people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested
that power, a power which includes the competence to determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the
people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat
contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people
(on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently in the Ratification Cases 12involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed
by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority
view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of
the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971,
despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the
former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court.
Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given
in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered
by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual
reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National
Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by
a majority vote of all its Members, submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the approval
of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that
amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take
effect when ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of
transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly
upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the
Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an
election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of
discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case,
Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he
shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the
country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates
to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated
plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate
Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support
from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was
submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the
Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly.
Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be
initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention,
who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is
not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a
peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI
of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National
Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional
conferment amending of the Constitution is not legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of
law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should
exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the
Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive
emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative,
and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more
difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis
potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more
easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke,
on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in
the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency
powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be
ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of
the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the interim National Assembly and shall
preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his
powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in
the President and the Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their
respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent
President shall be part of the law of the land, and shall remain valid, binding, and effective even after
lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention,
while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not
be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an
extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive
and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines
the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our
political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be
attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the
transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent
President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim
National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the
sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of
that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of
the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments
to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the
President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with
the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute
necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would
leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding
the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or
constitutional conventions, like the President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people
had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72
provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the
abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the
interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its
present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under Presidential
Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the
people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of
martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the
Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National Referendum-Plebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and
unitary state, sovereignty "resides in the people and all government authority emanates from them.30 In its fourth meaning,
Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the
highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people,
is sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in
the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life
is all experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be
permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the
people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the
collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers
of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-
plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may
well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the
larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite
aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes
of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite.
There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is
readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years
of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the
ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is
simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of
which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the
age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other
hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years
of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote
for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is
generally associated with the amending process of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper
speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild submission?
character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain
grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P.
embracing freedoms of expression and assembly The President himself had announced that he would not countenance any
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is
suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud
is political.
and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is
already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in
public discussion and even campaign for their stand on the referendum-plebiscite issues. 44 Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and
Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice
Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from
VIII
the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to
the power of the President to propose amendments.
Time for deliberation
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of
is not short. the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the
cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in
referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them
Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the
since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law.
President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair
That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for
and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by
constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for
this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before
the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the
complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the
the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result.
reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately
Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45
executory.

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be
SO ORDERED.
held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great
variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The Aquino, J, in the result.
constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because
proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of
presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done
contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment
and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the
President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the
procedure for the ratification of his proposals by the people?
G.R. No. 103956 March 31, 1992
BLO UMPAR ADIONG, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
GUTIERREZ, JR., J.:
The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals
and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it
fixes.
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the
Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.
Section 15(a) of the resolution provides:
Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed
materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
length.Provided, That decals and stickers may be posted only in any of the authorized posting
areas providedin paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda. —
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or
billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at
the candidate's own residential house or one of his residential houses, if he has more than one:Provided,
that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)
xxx xxx xxx
The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election
propaganda which provides:
Lawful election propaganda. — Lawful election propaganda shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than
eight and one-half inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by
three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the
holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be
allowed: Provided, That said streamers may not be displayed except one week before the date of the
meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize
after due notice to all interested parties and hearing where all the interested parties were given an equal
opportunity to be heard: Provided, That the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at least twice within one week after the
authorization has been granted. (Section 37, 1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post,
display or publicly exhibit any election propaganda in any place, whether private, or public, except in the
common poster areas and/or billboards provided in the immediately preceding section, at the candidate's
own residence, or at the campaign headquarters of the candidate or political party:Provided, That such
posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided,
Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two
(2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of
the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . .
(Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution
insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him
such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In
addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in
the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars
and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11,
1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice
from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether
public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.
First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4,
Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill
of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred
freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of
nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult
to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to
speak and to convince or persuade is denied and taken away.
We 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. (New York Times Co.
v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst
v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed
is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on
Elections, supra)
The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to
promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of
interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in
election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the
conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-
vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of transportation and other public utilities, media of
communication or information, all grants special privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time,
and space, and the right to reply, including reasonable equal rates therefore, for public information
campaigns and forms among candidates in connection with the object of holding free, orderly, honest,
peaceful and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on
Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line
between permissible regulation of election campaign activities and indefensible repression committed in the name of free and
honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of
expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather
wide and we have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the
opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the
electorate.
For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court
case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection.
We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which
is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the
electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and
COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to
regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak
and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us
were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free
speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign
activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it
restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media
reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club,
we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not
clearly shown.
A government regulation is sufficiently justified if it is within the constitutional power of the Government,
if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673.
(City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])
The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial
government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished
citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear
and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled:
The case confronts us again with the duty our system places on the Court to say where the individual's
freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more
so where the usual presumption supporting legislation is balanced by the preferred place given in our
scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That
priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard governs the choice . . .
For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection between
the remedy provided and the evil to be curbed, which in other context might support legislation against
attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must
have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent
interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis
supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the
political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on
his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in
the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television
stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with
less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private property.
Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.
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.
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]
The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen
(14) inches in length in any place, including mobile places whether public or private except in areas designated by the
COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the
citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal
rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be
deprived of his property without due process of law:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right to
acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v.
Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use,
enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the
land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the
candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who
consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the
citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the
preservation of a free society that, putting aside reasonable police and health regulations of time and
manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by
traditional legal methods leaving to each householder the full right to decide whether he will receive
strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution,
the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L.
ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the
burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in
this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in
any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private
person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the
COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of
one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama
Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is
delegation running riot. No such plentitude of power is susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as
regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of
the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount
interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal
significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . .
while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs
the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda
not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and
stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the
owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers
for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized
areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:
. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of
any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our
system of government. That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of
the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the
restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution
of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found
in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental
law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in
the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount.
It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition
of its being the supreme law. (Mutuc v. Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak
and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern
us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York
Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation
where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not
know who are aspiring to be elected to public office.
There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may
accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the
name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular
circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on
Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f)
of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon,
J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

G.R. No. 133486 January 28, 2000 The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held
and done with. Allegedly, there is no longer any actual controversy before us.
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs. The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on
COMMISSION ON ELECTIONS, respondent. the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of
our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now
will only postpone a task that could well crop up again in future elections. 6
PANGANIBAN, J.:

In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the duty to formulate guiding and
The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of
controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the
speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
extent of protection given by constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being
credible elections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the
invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and
evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or
the dissemination of data derived therefrom.
suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our
people.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies
before the issuing forum, specifically the filing of a motion for reconsideration.
The Case and the Facts

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en
justice,8 when the issue involves the principle of social justice or the protection of labor, 9 when the decision or resolution sought
banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body
to be set aside is a nullity,10 or when the need for relief is extremely urgent andcertiorari is the only adequate and speedy remedy
available.11
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same.
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the
election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections.
has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court
vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] through a special civil action for certiorari is therefore justified.
immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or
Main Issue:
deputized Petitioner ABS-CBN to undertake the exit survey.

Validity of Conducting Exit Polls

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease
and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any.
In fact, the exit polls were actually conducted and reported by media without any difficulty or problem. An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of
determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for,
immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through
The Issues
the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate
voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to
a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group],
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to
its agents or representatives from conducting exit polls during the . . . May 11 elections."3
report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in
fifteen administrative regions."
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.
It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and
of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec
The Court's Ruling gravely abused its discretion and grossly violated the petitioner's constitutional rights.

The Petition5 is meritorious. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion.
It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and
credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that
Procedural Issues: "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition
the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in
Mootness and Prematurity "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the
ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;12 and
relevant provisions of the Omnibus Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner
"are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying
the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can
in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the
official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May
the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our
jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15 In the landmark
case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by
the people in social and political decision-making, and of maintaining the balance between stability and change. 17 It represents a
profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. 18 It means
more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take
refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell
Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press.
Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances. 20They are not immune to
regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to
such freedoms, as follows:
These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number
of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of
imminence extremely high" before the utterance can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a
dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that
some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be
to bring about the substantive evil which the legislative body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v.MTRCB.31 In setting the standard or test for
the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "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." 32
A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a
right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but very likely to be inevitable. 33The evil sought to be avoided must be
so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. 34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The
power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's
burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, 36 so it has been
said.
To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:
A government regulation is sufficiently justified if it is within the constitutional power of the government, if it
furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties, when the end can be more narrowly achieved. 39
The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination
of information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen
and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed. 42
True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and
accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process.
However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring
orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research data which may be used to study
influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to
ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast
of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll
has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll
highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the
Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity
of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or
participants are selected at random, so that the results will as much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the
official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably
voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting
of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome
of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers
— does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is
without qualification as to whether the polling is disruptive or not. 44 Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.45 There is no showing, however, that exit polls or the means to interview voters
cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an
election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable
information and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain
unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general
would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.1âwphi1.nêt
46
In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes of which was to prevent the
broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so
is regulating speech via an exit poll restriction.47
With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic
abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to
the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited
from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters
with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third
party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of
whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted
for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ.,
concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of
communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and
reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought
about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be
allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to
explain to voters that the latter may refuse interviewed, and that the interview is not part of the official balloting process. The
pollsters may further be required to wear distinctive clothing that would show they are not election officials.48 Additionally, they
may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom.
These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each
province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already
voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll
results are released to the public only on the day after the elections.49 These precautions, together with the possible measures
earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.
 EN BANC PUNO, C.J.:

A. Precis
FRANCISCO CHAVEZ, G.R. No. 168338
Petitioner, In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech
Present: 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.
PUNO, C.J., Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and
QUISUMBING, issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
YNARES-SANTIAGO, COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing
- versus - SANDOVAL-GUTIERREZ, more than a naked means to prevent the free exercise of speech, it must be nullified.
CARPIO,
AUSTRIA-MARTINEZ, B. The Facts
CORONA,
CARPIO MORALES, 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005,
AZCUNA, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by
TINGA, releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria
CHICO-NAZARIO, Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was
RAUL M. GONZALES, VELASCO, JR., audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two
in his capacity as the NACHURA, versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which
Secretary of the REYES, and would suggest that the President had instructed the COMELEC official to manipulate the election results in the
Department of Justice; LEONARDO-DE CASTRO, JJ. Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
and NATIONAL TELECOMMUNICATIONS COMMISSION subsequently made a retraction. [7]
(NTC), Promulgated:
Respondents. 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an
February 15, 2008 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 GMA7television 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

x-------------------------------------------------------------------------------------x
Taking into consideration the countrys unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television network owners/operators
that the conditions of the authorization and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that said companies
shall not use [their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain
DECISION personalities are in possession of alleged taped conversations which they claim involve the
President of the Philippines and a Commissioner of the COMELEC regarding supposed
violation of election laws.
 These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said
at this time that the tapes contain an accurate or truthful representation of what was recorded
therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to
these radio and television stations. It has been subsequently established that the said tapes are
false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be just cause for the suspension, revocation and/or
cancellation of the licenses or authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards
to be observed by radio and television stations. NTC Memorandum Circular 111-12-85
explicitly states, among others, that all radio broadcasting and television stations shall, during
any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters
being broadcast or telecast the tendency thereof is to disseminate false information or such other
willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The
foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television stations from using their stations
to broadcast or telecast any speech, language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with
full force the provisions of said Circulars and their accompanying sanctions on erring
radio and television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas
(KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: [12]
NTC respects and will not hinder freedom of the press and the right to information on matters of
public concern. KBP & its members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of views.
What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would
constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving
due consideration to the process being undertaken to verify and validate the authenticity and
actual content of the same.
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the
NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the
people to information on matters of public concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6,
2005 until the present that curtail the publics rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to information regarding the controversial
taped conversion of President Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the
petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast
media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate
to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even
to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member
of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free
speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither
intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does
not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the Court so largely depends for illumination of difficult constitutional questions. [19]
But as early as half a century ago, we have already held that where serious constitutional questions are involved, the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we
must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, [21] in
keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our
society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition, [23] seeing as it involves a
challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of
the right to information of the public. It is fundamental, however, that we need not address all issues but only the most
decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom of the press have been
infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the
press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based
regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of
restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention
to the ongoing blurring of the lines of distinction between print and broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances. [24]

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given
a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified
by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech. [26] This
preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law
as a customary norm that binds all nations.[27]
In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our
constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly
every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and
the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. [30] For it is only
when the people have unbridled access to information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own
Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the Court
in Gonzales v. Commission on Elections, [32] in which it was held:
At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable,
whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social,
including political, decision-making; and of maintaining the balance between stability and change. [34] As early as the 1920s, the
trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for
this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be
uninhibited, robust, and wide-open. [35]
Freedom of speech and of the press means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter
of public consequence.[36] When atrophied, the right becomes meaningless.[37]The right belongs as well -- if not more to those
who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to
those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should
allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such
view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.[39] To
paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects
speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human
interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is
needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news,
or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the
expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to
speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting
Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad
protection of the clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom
of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not
susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision
prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an
unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this
freedom.
Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its
pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or
society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may
vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation
of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be
penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been
applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudencewhether here or
abroadwill reveal that courts have developed different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media;
libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the
right to a fair trial; and speech associated with rights of assembly and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) the dangerous tendency doctrinewhich permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated; [48] (b) thebalancing of interests tests, used as a standard
when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present
danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will
likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented
must be substantive, extremely serious and the degree of imminence extremely high. [50]
As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear
and present danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and
expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is
the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep
their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep
government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and
its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear
conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from
certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat
the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or
public officials.
 E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED
REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the
press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of
access to information; [54] and (4) freedom of circulation.[55]
Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie of 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 issuanceactually 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 approachsomewhere between the mere rationality that is required of any
other law and the compelling interest standard applied to content-based restrictions.[63]The test is called intermediate because
the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote
an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the
Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64]
On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest
scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained
would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive
and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question in every case is whether
the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree.[68]
The regulation which restricts the speech content must also serve an important or substantial government interest, which is
unrelated to the suppression of free expression. [69]
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A
restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be
invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken. [72]
Thus, when the prior restraint partakes of a 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-basedrestrictions. The acts of respondents focused solely on but one objecta specific content
fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did
not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free
speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it
has been invoked to validate a content-based restriction on broadcast media.
The regimes presently in place for each type of media differ from one other. Contrasted with the regime in
respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and
television have been held to have limitedFirst Amendment protection,[75] and U.S. Courts have excluded broadcast media from
the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S.
Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its pervasiveness
as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow precisely
the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve
compelling government interests,[79] they are decided on whether the governmental restriction is narrowly tailored to
further a substantial governmental interest,[80] or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between
broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have
deviated with the American conception of the Bill of Rights [81] we likewise did not adopt en masse the U.S. conception
of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest
that also has constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that
the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional
print or broadcast media.
The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE)
v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present
danger rule[83]
Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of
national security. Although the issue had become moot and academic because the owners were no longer interested to reopen,
the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and
bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in
cases involving broadcast media. Thus:[84]
xxx 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 medias franchise,
without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the
statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and
censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ in a number
of respects, but have a common historical basis.The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the public in a number of respects, but
are also seen as possible sources of harm.[93]
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to
provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential
channels. Digital technology will further increase the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that
regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free
expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need
for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer
industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in
the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share
similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97]Thus, it has been argued
that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or
develop a new regulatory framework and rationale to justify the differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at
bar. To recapitulate, a governmentalaction 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 whos and the hows of the wiretapping act is
ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission
and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape,
it is even arguable whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an
adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free speech and free press. In fine,violation of law is just
a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press.
The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred
status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In
calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear
and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations oflaw 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.

G.R. No. 119673 July 26, 1996
IGLESIA NI CRISTO, (INC.), petitioner,
vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION
and HONORABLE HENRIETTA S. MENDOZA, respondents.
PUNO, J.:p
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the
respondent Board of Review for Moving Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni Cristo"
aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates petitioner's religious
beliefs, doctrines and practices often times in comparative studies with other religions.
Sometime in the months of September, October and November 1992 petitioner submitted to the respondent Board of Review for
Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the
series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is
expressly prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the Office of
the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the
President reversed the decision of the respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC, NCR
Quezon City. 1 Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of discretion in
requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115,
119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 1986 in relation to Article 201 of the
Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The parties orally
argued and then marked their documentary evidence. Petitioner submitted the following as its exhibits,viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9, 1992 action on
petitioner's Series No. 115 as follows: 2
REMARKS:
There are some inconsistencies in the particular program as it is very surprising for this program to show
series of Catholic ceremonies and also some religious sects and using it in their discussion about the bible.
There are remarks which are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September 11, 1992
subsequent action on petitioner's Series No. 115 as follows: 3
REMARKS:
This program is criticizing different religions, based on their own interpretation of the Bible.
We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on
other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9, 1992 action on
petitioner's Series No. 119, as follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of
the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20, 1992 action on
petitioner's Series No. 121 as follows: 5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the
Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong,
which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20, 1992 action on
petitioner's Series No. 128 as follows: 6
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting Corporation dated
September 1, 1992. 7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation. 8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr.,
addressed for Henrietta S. Mendez reversing the decision of the respondent Board which x-rated the
showing of petitioner's Series No. 129. The letter reads in part:
xxx xxx xxx
 The television episode in question is protected by the constitutional guarantee of
free speech and expression under Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee.
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President
Fidel V. Ramos appealing the action of the respondent Board x-rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing
the showing of Series No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please
be informed that the Board was constrained to deny your show a permit to exhibit.
The material involved constitute an attack against another religion which is
expressly prohibited by law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on petitioner's bond
o P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. 9 The pre-trial briefs show that the
parties' evidence is basically the evidence they submitted in the hearing of the issue of preliminary injunction. The trial of the
case was set and reset several times as the parties tried to reach an amicable accord. Their efforts failed and the records show that
after submission of memoranda, the trial court rendered a Judgment, 10 on December 15, 1993, the dispositive portion of which
reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving Pictures
and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of
"Ang Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing
religions in showing "Ang Iglesia ni Cristo" program.
SO ORDERED.
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive portion of the
Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for review the tapes of its program.
The respondent Board opposed the motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration.
It ordered: 13
xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court's Order dated
December 15, 1993, directing petitioner to refrain from offending and attacking other existing religions in
showing "Ang Iglesia ni Cristo" program is hereby deleted and set aside. Respondents are further
prohibited from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious
program "Ang Iglesia ni Cristo."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14
On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the respondent board has
jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave
abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground
that the materials constitute an attack against another religion. It also found the series "indecent, contrary to law and contrary to
good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
"ANG IGLESIA NI CRISTO" PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM
OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT
BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO" PROGRAM
IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT
POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
"ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS PROGRAM IS INDECENT AND
CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's TV
program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its discretion when it
prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121, for the reason that they constitute an attack
against other religions and that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently provides:
Sec. 3 Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs, including
publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity
materials be for theatrical or non-theatrical distribution for television broadcast or for general viewing,
imported or produced in the Philippines and in the latter case, whether they be for local viewing or for
export.
c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production,
copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures,television
programs and publicity materials, subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are objectionable for beingimmoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines
and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of the
law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or television broadcast of .
. . television programs . . ." The law also directs the Board to apply "contemporary Filipino cultural values as
standard" to determine those which are objectionable for being "immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like its program "Ang Iglesia ni
Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that "no
law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea. Freedom of
religion has been accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this
preferred status well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good." 16 We have also laboriously defined in our jurisprudence the intersecting umbras and penumbras of
the right to religious profession and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known
constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom
to act on one's beliefs. The first is absolute as long as the belief is confined within the realm of
thought. The second is subject to regulation where the belief is translated into external acts that affect the
public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his
own theories about life and death; worship any god he chooses, or none at all; embrace or reject any
religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny
the immortality of his soul -- in fact, cherish any religious conviction as he and he alone sees fit. However
absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full
freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for
his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove."
Every one has a right to his beliefs and he may not be called to account because he cannot prove what he
believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to
do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like
all the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights
of others. It is error to think that the mere invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such practices are pursued out of sincere
religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions
of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma.
Accordingly, while one has lull freedom to believe in Satan, he may not offer the object of his piety a
human sacrifice, as this would be murder. Those who literally interpret the Biblical command to "go forth
and multiply" are nevertheless not allowed to contract plural marriages in violation of the laws against
bigamy. A person cannot refuse to pay taxes on the ground that it would be against his religious tenets to
recognize any authority except that of God alone. An atheist cannot express in his disbelief in act of
derision that wound the feelings of the faithful. The police power can validly asserted against the Indian
practice of the suttee, born of deep religious conviction, that calls on the widow to immolate herself at the
funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even
the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when
it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise
of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and
continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars
fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this
stultifying strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these
beliefs. Even now, we have yet to settle the near century old strife in Mindanao, the roots of which have been nourished by the
mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of weird religious
cults espousing violence as an article of faith also proves the wisdom of our rule rejecting a strict let alone policy on the exercise
of religion. For sure, we shall continue to subject any act pinching the space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise
destroys, the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed the ruling of the respondent
Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the respondent Board disallowed the
program series for "attacking" other religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal
that its reviewing members x-rated Series 115 for ". . . criticizing different religions, based on their own interpretation of the
Bible." They suggested that the program should only explain petitioner's ". . . own faith and beliefs and avoid attacks on other
faiths." Exhibit "B" shows that Series No. 119 was x-rated because "the Iglesia ni Cristo insists on the literal translation of the
bible and says that our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that
we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . . for reasons of the attacks, they
do on, specifically, the Catholic religion. . . . (T)hey can not tell, dictate any other religion that they are right and the rest are
wrong
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . . outrages Catholic and
Protestant's beliefs." On second review, it was x-rated because of its "unbalanced interpretations of some parts of the bible." 18 In
sum, the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's
controversial biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate court agreed
and even held that the said "attacks" are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. 19 It
is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will
be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" either religions, especially
the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D" will show that the so-
called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not
viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as
indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986. This
ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. It misappreciates
the essence of freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, so viz.: 20
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view,
the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are
prominent in church or state or even to false statements. But the people of this nation have ordained in the
light of history that inspite of the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to
interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the
State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are
often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom
of religion prohibits the State from leaning towards any religion. Vis-a-visreligious differences, the State enjoys no
banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the
speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the
most numerous church in our country. In a State where there ought to be no difference between the appearance and
the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of
religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury
of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of
opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious program of
petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not among the grounds to justify an order
prohibiting the broadcast of petitioner's television program. The ground "attack against another religion" was merely added by
the respondent Board in its Rules. 21 This rule is void for it runs smack against the hoary doctrine that administrative rules and
regulations cannot expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize" attack against any religion" as a ground allegedly ". . . because section 3
(c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity materials which are contrary to
law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows which offend any race or
religion." We respectfully disagree for it is plain that the word "attack" is not synonymous with the word "offend." Moreover,
Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify the subsequent punishment of a show which
offends any religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized that E.O. 876, the law
prior to PD 1986, included "attack against any religion" as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the Executive Department espouses
this view.
Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali
Gonzales explained:
xxx xxx xxx
However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television
program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986,
which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which
prescribes the standards of censorship, to wit: "immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines or its people or with dangerous tendency to
encourage the commission of violence, or of a wrong" as determined by the Board, "applying
contemporary Filipino cultural values as standard." As stated, the intention of the Board to subject the
INC's television program to "previewing and censorship is prompted by the fact that its religious program
makes mention of beliefs and practices of other religion." On the face of the law itself, there can
conceivably be no basis for censorship of said program by the Board as much as the alleged reason cited
by the Board does not appear to he within the contemplation of the standards of censorship set by law.
(Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule.
In American Bible Society v. City of Manila, 22 this Court held: "The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be
justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive
evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, 23 we further ruled that ". . . it is
only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community
that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of
findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. executive power, is extremely delicate in nature and can only be justified where the statute is
There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the unequivocably applicable to the supposed objectionable publication. In excluding any publication for the
threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the mails, the object should be not to interfere with the freedom of the press or with any other fundamental
showing of a substantive and imminent evil which has taken the life of a reality already on ground. right of the people. This is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is fundamentally a legal question. In
order for there to be due process of law, the action of the Director of Posts must be subject to revision by
It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United States, it is
the courts in case he had abused his discretion or exceeded his authority. (Ex parteJackson [1878], 96
true that the clear and present danger test has undergone permutations. It was Mr. Justice Holmes who formulated the test in
U.S., 727;
Schenck v. US, 24 as follows: ". . . 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." Admittedly, the test was originally designed to determine the latitude which should be given to speech that Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 -
espouses anti-government action. Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of Fed., 773)
the forties, when its umbrella was used to protect speech other than subversive speech. 25 Thus, for instance, the test was applied
to annul a total ban on labor picketing. 26 The use of the test took a downswing in the 1950's when the US Supreme Court
As has been said, the performance of the duty of determining whether a publication contains printed
decided Dennis v. United States involving communist conspiracy. 27In Dennis, the components of the test were altered as the
matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment
High Court adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,'
and discretion. Every intendment of the law is in favor of the correctness of his action. The rule is (and we
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The imminence
go only to those cases coming from the United States Supreme Court and pertaining to the United States
requirement of the test was thus diminished and to that extent, the protection of the rule was weakened. In 1969, however, the
Postmaster-General), that the courts will not interfere with the decision of the Director of Posts unless
strength of the test was reinstated in Brandenburg v. Ohio, 28when the High Court restored in the test the imminence requirement,
clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs.
and even added an intent requirement which according to a noted commentator ensured that only speech directed at inciting
Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs.
lawlessness could be punished. 29 Presently in the United States, the clear and present danger test is not applied to protect low
Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and relied upon by the Attorney-
value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still applied to four
General).
types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt
and release of information that endangers a fair trial. 30 Hence, even following the drift of American jurisprudence, there is
reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare
readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb tenribly. competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy
considerations and can be better addressed by our legislators.
It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves
the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained
be measured, and the causal connection between the speech and the evil apprehended cannot be established. The contention the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed and
overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their speech content is known and not an set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and
X quantity. Given the specific content of the speech, it is not unreasonable to assume that the respondent Board, with its 121. No costs.
expertise, can determine whether its sulphur will bring about the substantive evil feared by the law.
SO ORDERED.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial
Regalado, Davide, Jr., Romero and Francisco, JJ., concur.
function which cannot be arrogated by an administrative body such as a Board of Censors." He submits that a "system of prior
restraint may only be validly administered by judges and not left to administrative agencies. "The same submission is made by
Mr. Justice Mendoza. Narvasa, C.J., concurs in the result.

This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down by Mr.
Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US Supreme Court
in Freedman v. Maryland 32 was ready to hold that "the teaching of cases is that, because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom of expression only a procedure requiring a judicial
determination suffices to impose a valid final restraint." 33

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.:

The use of the mails by private persons is in the nature of a privilege which can be regulated in order to
avoid its abuse. Persons posses no absolute right to put into the mail anything they please, regardless of its
character.
G.R. No. 155282 January 17, 2005 Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It
seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections
3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,
coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 and Resolution
vs.
dated April 14, 1993. Respondents averred that the above-cited provisions constitute "prior restraint" on respondents’ exercise of
ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents.
freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply to
the "The Inside Story" because it falls under the category of "public affairs program, news documentary, or socio-political
DECISION editorials" governed by standards similar to those governing newspapers.

SANDOVAL-GUTIERREZ, J.: On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive portion of which reads:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by "WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation
(ABS-CBN) and former Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18,
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993;
1997,1 and (b) Order dated August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-
16052.
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3,
7, 28 (a) of its Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they
The facts are undisputed.
being public affairs programs which can be equated to newspapers; and

On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of the television (TV)
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.
program "The Inside Story" produced and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes
to enable them to pay for their tuition fees. In the course of the program, student prostitutes, pimps, customers, and some faculty
members were interviewed. The Philippine Women’s University (PWU) was named as the school of some of the students SO ORDERED."
involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode.
Petitioner filed a motion for reconsideration but was denied.24
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee of
the PWU, and the PWU Parents and Teachers Association filed letter-complaints3 with petitioner MTRCB. Both complainants
Hence, this petition for review on certiorari.
alleged that the episode besmirched the name of the PWU and resulted in the harassment of some of its female students.

Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating
programs, news documentaries, or socio-political editorials," are subject to petitioner’s power of review under Section 3 (b) of
Committee, alleging among others, that respondents (1) did not submit "The Inside Story" to petitioner for its review
P.D. No. 1986 and pursuant to this Court’s ruling in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are
and (2) exhibited the same without its permission, thus, violating Section 7 4 of Presidential Decree (P.D.) No. 19865 and Section
more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the
3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8
former; third, petitioner’s power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior
restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents’ constitutional freedom of expression and of
In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news documentary and socio- the press.
political editorial," the airing of which is protected by the constitutional provision on freedom of expression and of the
press. Accordingly, petitioner has no power, authority and jurisdiction to impose any form of prior restraint upon respondents.
Respondents take the opposite stance.

On February 5, 1993, after hearing and submission of the parties’ memoranda, the MTRCB Investigating Committee rendered a
The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its
Decision, the decretal portion of which reads:
exhibition or broadcast by television.

"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND
The petition is impressed with merit.
PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB.

The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows:
Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of the ABS-CBN Channel 2 of the same
category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act
accordingly."101awphi1.nét "SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers and duties:

On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993 affirming xxxxxx
the above ruling of its Investigating Committee.11 Respondents filed a motion for reconsideration but was denied in a Resolution
dated April 14, 1993.12
b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such
as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case,
whether they be for local viewing or for export.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production,
copying, distribution, sale, lease exhibition and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural
values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige
of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a
wrong or crime, such as but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution,
sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end
and that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with
paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast by television;
x x x x x x."
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program
"The Inside Story." The task is not Herculean because it merely resurrects this Court En Banc’sruling in Iglesia ni Cristo vs.
Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioner’s review power contending that the term
"television programs" under Sec. 3 (b) does not include "religious programs" which are protected under Section 5, Article III of
the Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner "the power
to screen, review and examine "all television programs," emphasizing the phrase "all television programs," thus:
"The law gives the Board the power to screen, review and examine all ‘television programs.’ By the clear terms of the law,
the Board has the power to ‘approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x
television programs x x x.’ The law also directs the Board to apply ‘contemporary Filipino cultural values as standard’ to
determine those which are objectionable for being ‘immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence
or of a wrong or crime.’"
Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something
therefrom, unless there is compelling reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere debemos.
Thus, when the law says "all television programs," the word "all" covers all television programs, whether religious, public
affairs, news documentary, etc.29 The principle assumes that the legislative body made no qualification in the use of general word
or expression.30
It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it has
power of review.
Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The Inside
Story" is a "public affairs program, news documentary and socio-political editorial" protected under Section 4,31 Article III of the
Constitution. Albeit, respondent’s basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the
press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this
Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and
present, "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs x
x x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt the Iglesia
ni Cristo’sreligious program from petitioner’s review power.
Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech and
of the press. However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of
the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner
MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, according to respondents, is
protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such
as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies,
and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to exhibit or cause to be exhibited
in any moviehouse, theatre, or public place or by television within the Philippines any motion picture, television program or
publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the
owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any
theater or public place or by television a label or notice showing the same to have been officially passed by the BOARD when
the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or
exhibited by the Philippine Government and/or its departments and agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels as short motion picture films portraying or
dealing with current events.33 A glance at actual samples of newsreels shows that they are mostly reenactments of events that had
already happened. Some concrete examples are those of Dziga Vertov’s RussianKino-Pravda newsreel series (Kino-
Pravda means literally "film-truth," a term that was later translated literally into the French cinema verite) and Frank
Capra’s Why We Fight series.34 Apparently, newsreels are straight presentation of events. They are depiction of
"actualities." Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as
"straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue
are not considered newsreels."36Clearly, the "The Inside Story" cannot be considered a newsreel. It is more of a public affairs
program which is described as a variety of news treatment; a cross between pure television news and news-related commentaries,
analysis and/or exchange of opinions.37 Certainly, such kind of program is within petitioner’s review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly, we
are not called upon to determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing
that no law shall be passed abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the
showing of the program. Neither did it cancel respondents’ permit. Respondents were merely penalized for their failure to submit
to petitioner "The Inside Story" for its review and approval. Therefore, we need not resolve whether certain provisions of P. D.
No. 1986 and the MTRCB Rules and Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28
(a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites
for judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the decision on the
constitutional or legal question must be necessary to the determination of the case itself.38
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November 18, 1997 and Order
dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs
against respondents.
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing
business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys
in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items of information including election
surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of RA. No.9006 (Fair
Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting
local candidates shall not be published seven (7) days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's
popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters
preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –
Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting
local candidates shall not be published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and
local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May
14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of
freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the
election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that
no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing
and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no
reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation
and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys,
bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the
impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the
national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only
require timeliness. Respondent claims that in National Press Club v. COMELEC,1 a total ban on political advertisements, with
candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this
Court. In contrast, according to respondent, it states that the prohibition in §5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of
speech, expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election
survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election
seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and he
press, such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior restraints of expression
comes to this Court bearing a heavy Presumption against its constitutional validity. ...The Government thus carries a heavy
burden of showing justification for in enforcement of such restraint. "' 3 There, thus a reversal of the normal presumption of
validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory power to
regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity
attaches to a measure like §5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of
power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as
well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums
among candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity
arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the Purpose of
securing equal opportunity among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity
of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC,6 this test was originally formulated for the criminal law and
only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with
inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is
concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of
§5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances
to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the
free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on
voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of weak and "losing" candidates by
their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of
information during the election period (pages 11-16), the dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limitingimpact
on the rights of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is a mere
restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only
during the period when the voters are presumably contemplating whom they should elect and when they are most
susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression.
Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time,
and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, § 14 has lifted the ban and
now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication
of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual
bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining
the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can
bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,7 from which the
dissent in this case takes its cue, was a strong one resulting in his conclusion that , §50-B of R.A. No. 4880, which limited the
period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor
General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this
survey is inconclusive. It is note worthy that in the United States no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an
embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom,
Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden,
and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the
publication of election survey results.
What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through
Chief Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if
it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech,
expression and press] is no greater than is essential to the furtherance of that interest.8
This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have
"become canonical in the review of such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two
cases.10
Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such
governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than
is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted
governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, §5.4 shows a bias for
a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of
freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content."11 The inhibition of speech should be upheld only if the expression falls within one of the few
unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality
Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only
in exceptional cases…. No one would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced against obscene publications. The security of the
community life may be protected against incitements to acts of violence and overthrow by force of orderly
government…
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is
only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of
expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before
a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v.
COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific
constitutional provision,16 but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no
ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting
restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O 'Brientest, namely, that the
restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of
last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form
of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of
1987,17the COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can
confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply
can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for
the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough
tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can
these be legitimately prohibited by suppressing the publication of survey results, which are a form of expression? It has been
held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed
at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a
direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolution may
be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is
a "decision, order, or resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that Resolution
3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not
an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly
states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that
this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the constitutionality of various
election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of COMELEC Resolution 3636,
March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED.1âwphi1.nêt
G.R. No. L-21049 December 22, 1923
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ISAAC PEREZ, defendant-appellant.
Mario Guariña for appellant.
Attorney-General Villa Real for appellee.
MALCOLM, J.:
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to
meet on the morning of April 1, 1992, in the presidencia of Pilar, they became engaged in a discussion regarding the
administration of Governor-General Wood, which resulted in Perez shouting a number of times: "The Filipinos, like myself,
must use bolos for cutting off Wood's head for having recommended a bad thing for the Filipinos, for he has killed our
independence." Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having to do
with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to this
court. The question presented for decision is, What crime, if any, did the accused commit?
A logical point of departure is the information presented in this case. It reads in translation as follows:
That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said
accused, Isaac Perez, while holding a discussion with several persons on political matters, did criminally, unlawfully
and wilfully and with knowledge that Honorable Leonard Wood was the Governor-General of the Philippine Islands
and in the discharge of his functions as such authority, insult by word, without his presence, said Governor-General,
uttering in a loud voice and in the presence of many persons, and in a public place, the following phrases: "Asin an
mangña filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang
recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must
use bolos for cutting off Wood's head for having recommended a bad thing for the Philippines.
Contrary to article 256 of the Penal Code.
At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense.
According to the first witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the
occasion in question was this:
"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a
bad administration in these Islands and has not made a good recommendation; on the contrary, he has assassinated the
independence of the Philippines and for this reason, we have not obtained independence and the head of that Governor-General
must be cut off." Higinio J. Angustia, justice of the peace of Pilar, in a written statement, and Gregorio Cresencio, another
witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos
including himself to get their bolos and cut off the head of Governor-General Wood and throw it into the sea.
The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused
participated. But they endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter
maintaining that the fault was due to the Nacionalista Party, while Perez argued that the Governor-General was to blame. The
accused testified that the discussion was held in a peaceful manner, and that what he wished to say was that the Governor-
General should be removed and substituted by another. On the witness stand, he stated that his words were the following: "We
are but blaming the Nacionalista Party which is in power but do not take into account that above the representatives there is
Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-
General, then we, the Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes."
The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the
accused made use of the language stated in the beginning of this decision and set out in the information. The question of fact thus
settled, the question of law recurs as to the crime of which the accused should be convicted.
It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial
judge so found in his decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower
court and is to the effect that article 256 of the Penal Code is no longer in force.
In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following
language: "To hell with the President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256,
and though the case was eventually sent back to the court of origin for a new trial, the appellate court by majority vote held as a
question of law that article 256 is still in force.
In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on
the Philippine Senate and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by
unanimous vote, with three members of the court holding that article 256 was abrogated completely by the change from Spanish
to American sovereignty over the Philippines, and with six members holding that the Libel Law had the effect of repealing so
much of article 256 as relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant
was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course of the main opinion in the
Perfecto case, is found this significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may
also have affected article 256, but as to this point, it is not necessary to make a pronouncement."
It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as
we can muster, that until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to
ministers of the Crown or to writings coming under the Libel Law, exist and must be enforced. To which proposition, can
properly be appended a corollary, namely: Seditious words, speeches, or libels, constitute a violation of Act No. 292, the Treason
and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified.
Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the
law infringed in this instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later
appear, we think that the words of the accused did not so much tend to defame, abuse, or insult, a person in authority, as they did
to raise a disturbance in the community.
In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the
existence of the State, the authority of the Government, or the general public peace. The offenses created and defined in Act No.
292 are distinctly of this character. Among them is sedition, which is the raising of commotions or disturbances in the State. It is
a revolt against legitimate authority. Though the ultimate object of sedition is a violation of the public peace or at least such a
course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion
of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil.,
64.)
It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of
speech and the right of the people peaceably to assemble and petition the Government for redress of grievances. Criticism is
permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the
Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the
intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and
petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the
constitution and the laws, and the existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907],
7 Phil., 422; People vs. Perfecto,supra.)
Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the
Presidency of the United States and other high offices, under a democratic form of government, instead, of affording immunity
from promiscuous comment, seems rather to invite abusive attacks. But in this instance, the attack on the Governor-General
passes the furthest bounds of free speech was intended. There is a seditious tendency in the words used, which could easily
produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government
and obedient to the laws.
The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section
8 of Act No. 292 as amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance
with the sentence of the lower court, the defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the
costs. So ordered.
Street, Ostrand, Johns and Romualdez, JJ., concur.

The Governor-General is an executive official appointed by the President of the United States by and with the advice and
consent of the Senate of the United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme
executive power in the Governor-General to be exercised in accordance with law. The Governor-General is the representative of
executive civil authority in the Philippines and of the sovereign power. A seditious attack on the Governor-General is an attack
on the rights of the Filipino people and on American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr
[1903], 2 Phil., 332.)

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute
books exactly to meet such a situation. This section reads as follows:

Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels
against the Government of the United States or against the Government of the Philippine Islands, or who shall print,
write, publish utter or make any statement, or speech, or do any act which tends to disturb or obstruct any lawful
officer in executing his office or in performing his duty, or which tends to instigate others to cabal or meet together
for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to stir up the people against
the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government,
or who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not
exceeding two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the
discretion of the court.

In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate
others to cabal or meet together for unlawful purposes. He has made a statement and done an act which suggested and incited
rebellious conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful
authorities. He has made a statement and done an act which tended to disturb the peace of the community and the safety or order
of the Government. All of these various tendencies can be ascribed to the action of Perez and may be characterized as penalized
by section 8 of Act No. 292 as amended.

A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive
to, and based upon, the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive.
The crime of which the defendant stands charged is that described by the facts stated in the information. In accordance with our
settled rule, an accused may be found guilty and convicted of a graver offense than that designated in the information, if such
graver offense is included or described in the body of the information, and is afterwards justified by the proof presented during
the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.)

The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think,
sufficiently punish the accused.

That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that
only last year, Mr. Chief Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of
the Porto Rico, observed: "A reading of the two articles removes the slightest doubt that they go far beyond the "exuberant
expressions of meridional speech," to use the expression of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452,
456). Indeed they are so excessive and outrageous in their character that they suggest the query whether their superlative
vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While
our own sense of humor is not entirely blunted, we nevertheless entertain the conviction that the courts should be the first to
stamp out the embers of insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with
firmly before it endangers the general public peace.

G.R. No. L-16027 May 30, 1962
LUMEN POLICARPIO, plaintiff-appellant,
vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.
Mario Bengzon for plaintiff-appellant.
Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.
CONCEPCION, J.:
Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants' counterclaim,
without special pronouncement as to costs. Originally certified to the Court of Appeals, the record on appeal was subsequently
forwarded to us in view of the amount involved in the complaint (P300,000.00).
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral damages, P60,000 as
correctional and exemplary damages, and P20,000, as attorney's fees, aside from the costs, by reason of the publication in the
Saturday Mirror of August 11, 1956, and in the Daily Mirror of August 13, 1956, of two (2) articles or news items which are
claimed to be per se defamatory, libelous and false, and to have exposed her to ridicule, jeopardized her integrity, good name and
business and official transactions, and caused her grave embarrassment, untold and extreme moral, mental and physical anguish
and incalculable material, moral, professional and business damages. The defendants are The Manila Times Publishing Co., Inc.,
as publisher of The Saturday Mirror and The Daily Mirror, which are newspapers of general circulation in the Philippines, and
Constante C. Roldan, Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article
and the managing editor, the associate editor and the news editor, respectively, of said newspapers.
After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present action
was initiated, the defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations
thereof, alleging special defenses and setting up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due
course, later on, said court rendered the aforementioned decision, upon the ground that plaintiff had not proven that defendants
had acted maliciously in publishing the aforementioned articles, although portions thereof were inaccurate or false.
Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was executive
secretary of the local UNESCO National Commission. As such officer, she had preferred charges against Herminia D. Reyes,
one of her subordinates in said Commission, and caused her to be separated from the service. Miss Reyes, in turn, preferred
counter-charges which were referred to Col. Crisanto V. Alba, a Special Investigator in the Office of the President. Pending
completion of the administrative investigation, which began in June, 1956, Miss Reyes filed with the Office of the City Fiscal of
Manila, on August 8, 1956, a complaint against the plaintiff for alleged malversation of public funds and another complaint for
alleged estafa thru falsification of public documents, which were scheduled for investigation by said office on August 22, 1956,
at 2:00 p.m. Meanwhile, or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front page of The
Saturday Mirror:
WOMAN OFFICIAL SUED
PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague
By Constante C. Roldan
Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and estafa in
complaints filed with the city fiscal's office by the Presidential Complaints and Action Commission today.
The criminal action was initiated as a result of current administrative investigation against the Unesco official being conducted
by Col. Crisanto V. Alba, Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant.
The Unesco commission functions under the Office of the President.
Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on
August 22 at 2 p.m. Colonel Alba, in turn, indicated that the administrative phase of the inquiry will continue Monday and then
resume on August 21 at Malacañan Park. The Palace Investigator said there are other charges, but would not specify these.
Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly
indicated that the accused had used Unesco stencils for private and personal purposes. Specification reputedly said that Miss
Policarpio had taken stencils from the Unesco storeroom and used these for French lessons not at all connected with Unesco
work; for the preparation of contracts of sale of pianos in her business establishment; for preparation of invitations sent to
members of the League of Women Voters of which she is one of the officers.
Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico Vergara and
Pablo Armesto both of the Unesco.1äwphï1.ñët
Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955, Miss
Policarpio was accused of having collected expenses for supposed trips. The accusation said the Unesco official had sought
reimbursement of expenses for a trip to Baler, Quezon, on Aug. 19, last year, representing expenses of her car when in fact she
supposedly rode in an army plane.
Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane trip in her
newspaper column. The same voucher also allegedly collected expenses for going to a Unesco Bayambang (Pangasinan) project,
although records reputedly showed that she was absent in that conferences.
Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and others, also of
the PAF.
Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial disbursements
in their office. The first was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the Social Welfare
Administration and the UNAC while she had charge of these.
The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges including
conduct "unbecoming a lady", and as a result had not been paid her salary. She appealed to Malacañan which dismissed her suit
and later she sued before Judge Rafael Amparo to compel payment of her salary. The court also rejected her plea on the ground
that she had not exhausted all administrative remedies, the Palace not having made a clearcut decision on her case.
The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and of Miss Reyes, taken
during the administrative investigation being conducted by Col. Alba — another news item, reading:
"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO
Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.
The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national commission here,
opened in Malacañan before Col. Crisanto V. Alba.
The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case before the Presidential
Complaints and Action Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement
of supposed official expenses.
Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the PCAC had initiated the
criminal action before the city fiscal's office. The complaint before the fiscal was started by an information she naming Herminia
D. Reyes as complainant and citing other persons as witnesses. Fiscal Reyes set preliminary investigation of these charges for
Aug. 22.
Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly used
several sheets of government stencils for her private and personal use, such as for French lessons, contracts of sale of pianos and
for invitations of the League of Women Voters of which she (Miss Policarpio) is an officer. The Unesco commission here
functions under the Office of the President.
The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.
Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss Reyes,
petitioned for the suspension of Miss Policarpio, executive secretary of the Unesco.
Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.
During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC who brought
with him 18 sheets of stencil which were allegedly used by Miss Policarpio for her personal use. These sheets were admitted as
temporary exhibits.
The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he could not
identify which of the sheets he had received.
The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.
The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to Quezon
Province and to Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco official had asked for refund of expenses for
use of her car when, Miss Reyes claimed she had actually made the trip aboard an army plane.
Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought allegedly refund of
expenses.
The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at the Palace
and before the Court for payment of her salary.
The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given prominence with a 6-column (about
11 inches) banner headline of one-inch types. Admittedly, its sub-title — "PCAC RAPS L. POLICARPIO PIO ON FRAUD" —
printed in bold one-centimeter types, is not true. Similarly, the statement in the first paragraph of the article, to the effect that
plaintiff "was charged with malversation and estafa in complaints filed with the city fiscal's office by the Presidential Complaint
and Action Commission" — otherwise known as PCAC — is untrue, the complaints for said offenses having been filed by Miss
Reyes. Neither is it true that said "criminal action was initiatedas a result of current administrative, investigation", as stated in
the second paragraph of the same article.
Plaintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba
had shown that plaintiff was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a consequence, the
PCAC had filed the corresponding complaints with the city fiscal's office. She alleges, also, that although said article indicates
that the charges for malversation and for estafa through falsification against her referred, respectively, to the use by her of
Unesco stencils allegedly for private and personal purposes, and to the collection of transportation expenses, it did not mention
the fact that the number of stencils involved in the charge was only 18 or 20, that the sum allegedly misappropriated by her was
only P54, and that the falsification imputed to her was said to have been committed by claiming that certain expenses for which
she had sought and secured reimbursement were incurred in trips during the period from July 1, 1955 to September 30, 1955,
although the trips actually were made, according to Miss Reyes, from July 8 to August 31, 1955. By omitting these details,
plaintiff avers, the article of August 11, 1956, had the effect of conveying the idea that the offenses imputed to her were more
serious than they really were. Plaintiff, likewise, claims that there are other inaccuracies in the news item of August 13, 1956,
but, we do not deem it necessary to dwell upon the same for the determination of this case.
Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the PCAC, but
by Miss Reyes, this inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said
office. As regards the number of sheets of stencil allegedly misused and the amount said to have been misappropriated by
plaintiff, as well as the nature of the falsification imputed to her, defendants argue that these "details" do not affect the
truthfulness of the article as a whole, and that, in any event, the insignificant value of said sheets of stencil and the small amount
allegedly misappropriated, would have had, if set forth in said article, a greater derogatory effect upon the plaintiff, aside from
the circumstance that defendants had no means of knowing such "details". It appears, however, that prior to August 11, 1956,
Col. Alba had already taken the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss
Reyes. Hence, defendants could have ascertained the "details" aforementioned, had they wanted to. Indeed, some of the
defendants and/or their representatives had made appropriate inquiries from Col. Alba before said date, and some "details" —
though not those adverted to above — appear in the article then published, whereas the number of sheets of stencil allegedly
misused was mentioned in the news item of August 13, 1956.
Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the
damage caused to the offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or value of the property
embezzled is material to said offense.
Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the Government, like
the PCAC, particularly after an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of
the accused is greater than when the complaints are filed by a private individual, specially when the latter is a former subordinate
of the alleged offender, who was responsible for the dismissal of the complainant from her employment. It is only too apparent
that the article published on August 11, 1956, presented the plaintiff in a more unfavorable light than she actually was.
It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given
event should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a
sensational manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative or other official
proceedings, which are not of confidential nature, because the public is entitled to know the truth with respect to such
proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy immunity, a publication
containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and without any
comments or remarks.
Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff.
However, Article 354 of the Revised Penal Code, provides:
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 other functions.
In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956,
presented her in a worse predicament than that in which she, in fact, was. In other words, said article was not a fair and true
report of the proceedings there in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a
comment or remark, besides being false. Accordingly, the defamatory imputations contained in said article are "presumed to be
malicious".

Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the
complaints had been filed with the Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col.
Alba? Either they knew the truth about it or they did not know it. If they did, then the publication would be actually malicious. If
they did not or if they acted under a misapprehension of the facts, they were guilty of negligence in making said statement, for
the consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the Philippines; 17
R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating
that neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated
the number of sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the
responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil.
52). For this reason, we feel that the interest of justice and of all parties concerned would be served if the defendants indemnify
the plaintiff in the sums of P3,000, by way of moral damages, and P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein
to pay jointly and severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of
attorney's fees, in addition to the costs. It is so ordered.

Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Bengzon, C.J., is on leave.

[G.R. No. 126466. January 14, 1999]
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF APPEALS and
FRANCISCO WENCESLAO, respondents.
DECISION
"The question is not so much as who was aimed at as who was hit." (Pound, J., in Corrigan v. Bobbs-Merill Co., 228 N.Y.
58 [1920]).
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of
man, the issue of the right of free expression bestirs and presents itself time and again, in cyclic occurrence, to inveigle, nay,
challenge the courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted moors and valleys and
finally redefine the metes and bounds of its controversial domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his
right to freely and openly express his views. Blackstone's pontifical comment that "where blasphemous, immoral, treasonable,
schismatical, seditious, or scandalous libels are punished by English law . . . the liberty of the press, properly understood, is by
no means infringed or violated," found kindred expression in the landmark opinion of England's Star Chamber in the Libelis
Famosis case in 1603.[1] That case established two major propositions in the prosecution of defamatory remarks: 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.
Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the venerable
Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability under the clear and present danger
rule, to the other end of the spectrum in defense of the constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication technology, libel principles
formulated at one time or another have waxed and waned through the years in the constant ebb and flow of judicial review. At
the very least, these principles have lost much of their flavor, drowned and swamped as they have been by the ceaseless
cacophony and din of thought and discourse emanating from just about every source and direction, aided no less by an
increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter
commonality; and we agree, for its logical effect is to benumb thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to enjoy a good, honorable and reputable name. This may explain the
imperceptible demise of criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage on
one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo Borjal and
Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven are
solidarily liable for damages for writing and publishing certain articles claimed to be derogatory and offensive to private
respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now
PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal
was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the regular writers
of The Philippine Star is Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and
journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the House of
Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House Sub-
Committee on Industrial Policy, those who attended agreed to organize the First National Conference on Land Transportation
(FNCLT) to be participated in by the private sector in the transport industry and government agencies concerned in order to find
ways and means to solve the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill
that would embody a long-term land transportation policy for presentation to Congress. The conference which, according to
private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations from various sponsors
such as government agencies, private organizations, transport firms, and individual delegates or participants. [2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao was elected
Executive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in his
column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of a conference" without naming or
identifying private respondent. Neither did it refer to the FNCLT as the conference therein mentioned. Quoted hereunder are
excerpts from the articles of petitioner together with the dates they were published [3] -
31 May 1989
Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars and conferences for a huge fee. This is a
simple ploy coated in jazzy letterheads and slick prose. The hero has the gall to solicit fees from anybody with bucks to
spare. Recently, in his usual straightforward style, Transportation Secretary Rainerio Ray Reyes, asked that his name be stricken
off from the letterheads the hero has been using to implement one of his pet seminars. Reyes said: I would like to reiterate my
request that you delete my name. Note that Ray Reyes is an honest man who would confront anybody eyeball to eyeball without
blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of the names of President Aquino and Secretary
Ray Reyes. The conference program being circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says
that the conference should be unmasked as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and to almost all government
agencies. And the letterheads carried the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out from Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to
put the fund solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by the organizer shelled
out 1,000 each, thats easily P3 million to a project that seems so unsophisticated. But note that one garment company
gave P100,000, after which the Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria Macapagal-
Arroyo was approached by the organizer to expedite the garment license application of the P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash tucked inside his closet. The Jaywalker
continues to receive information about the mans dubious deals. His notoriety, according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.
xxx
The first information says that the 'organizer' tried to mulct half a million pesos from a garment producer and exporter who was
being investigated for violation of the rules of the Garments, Textile, Embroidery and Apparel Board. The 'organizer' told the
garment exporter that the case could be fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter
told him: 'If I have that amount, I will hire the best lawyers, not you.' The organizer left in a huff, his thick face very pale.
xxx
Friends in government and the private sector have promised the Jaywalker more 'dope' on the 'organizer.' It seems that he was
not only indiscreet; he even failed to cover his tracks. You will be hearing more of the 'organizers' exploits from this corner
soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading his wings too far. A congressional source
has informed the Jaywalker that the schemer once worked for a congressman from the North as some sort of a consultant on
economic affairs. The first thing the organizer did was to initiate hearings and round-the-table discussions with people from the
business, export and -- his favorite -- the garments sector.
xxx
The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good of these sectors in mind. It
was only later that he realized that the 'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was
fired.
xxx
There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate under a guise of a well-
meaning reformist. He has intellectual pretensions - and sometimes he succeeds in getting his thoughts in the inside pages of
some newspapers, with the aid of some naive newspaper people. He has been turning out a lot of funny-looking advice on
investments, export growth, and the like.
xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-peddlers from entering the
premises of his department. But the Cabinet man might not get his wish. There is one 'organizer' who, even if physically banned,
can still concoct ways of doing his thing. Without a tinge of remorse, the 'organizer' could fill up his letterheads with names of
Cabinet members, congressmen, and reputable people from the private sector to shore up his shady reputation and cover up his
notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in the
affair were mostly leaders of jeepney drivers groups. None of the government officials involved in regulating public
transportation was there. The big names in the industry also did not participate. With such a poor attendance, one wonders why
the conference organizers went ahead with the affair and tried so hard to convince 3,000 companies and individuals to
contribute to the affair.
xxx
The conference was doomed from the start. It was bound to fail. The personalities who count in the field of transportation
refused to attend the affair or withdrew their support after finding out the background of the organizer of the conference. How
could a conference on transportation succeed without the participation of the big names in the industry and government policy-
makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the organizer alluded
to in petitioner Borjals columns.[4] In a subsequent letter to The Philippine Star, private respondent refuted the matters contained
in petitioner Borjals columns and openly challenged him in this manner -
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to relinquish this position in case
it is found that I have misappropriated even one peso of FNCLT money. On the other hand, if I can prove that Borjal has used his
column as a hammer to get clients for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again
write a column. Is it a deal?[5]
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal for unethical
conduct. He accused petitioner Borjal of using his column as a form of leverage to obtain contracts for his public relations firm,
AA Borjal Associates.[6] In turn, petitioner Borjal published a rejoinder to the challenge of private respondent not only to protect
his name and honor but also to refute the claim that he was using his column for character assassination.[7]
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel against
petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling
the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the Department of Justice and
later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject of
the instant case.[8] In their answer, petitioners interposed compulsory counterclaims for actual, moral and exemplary damages,
plus attorneys fees and costs. After due consideration, the trial court decided in favor of private respondent Wenceslao and
ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory damages, in
addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for attorneys fees, and to pay the
costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award
to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision
promulgated 25 March 1996, the appellate court ruled inter alia that private respondent was sufficiently identifiable, although
not named, in the questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing him
variously as a "self-proclaimed hero," "a conference organizer associated with shady dealswho has a lot of trash tucked inside his
closet," "thick face," and "a person with dubious ways;" that petitioners claim of privilege communication was unavailing since
the privileged character of the articles was lost by their publication in a newspaper of general circulation; that petitioner could
have performed his office as a newspaperman without necessarily transgressing the rights of Wenceslao by calling the attention
of the government offices concerned to examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the univocal indorsement of the responsible government
officials, or simply informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and, that when
he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions to Wenceslao, petitioner
Borjal crossed the thin but clear line that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate courts decision which reduced the amount
of damages awarded him by filing with this Court a Petition for Extension of Time to File Petition and a Motion
for Suspension of Time to File Petition.[9] However, in a Resolution dated 27 May 1996, the Second Division denied both
motions: the first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to the Second Division, there
was no longer any case thereat with which to consolidate this case since G.R. No. 124396 had already been disposed of by the
Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of
12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of Appeals erred: (a) in ruling
that private respondent Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to
accord serious consideration to the findings of the Department of Justice and the Office of the President that private respondent
Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding that the degree of proof required in a
preliminary investigation is merely prima facie evidence which is significantly less than the preponderance of evidence required
in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged communication; (d) in refusing to
apply the "public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles lost their
privileged character because of their publication in a newspaper of general circulation; (f) in ruling that private respondent has a
valid cause of action for libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors
of the City of Manila, the Department of Justice, and eventually, the Office of the President, had already resolved that there was
no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be held liable, in adjudging
petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate courts ruling, the dismissal
of the complaint against them for lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable although
it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a third person could identify him as the object of the libelous
publication.[10]Regrettably, these requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified
Wenceslao as the "conference organizer." It cited the First National Conference on Land Transportation, the letterheads used
listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference to the "organizer of the
conference" - the very same appellation employed in all the column items - as having sufficiently established the identity of
private respondent Wenceslao for those who knew about the FNCLT who were present at its inception, and who had pledged
their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by Borjal
do not identify private respondent Wenceslao as the organizer of the conference. The first of the Jaywalker articles which
appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that private respondent was the person
referred to therein. Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and anyone of
them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his 9 June 1989 column
petitioner Borjal wrote about the "so-called First National Conference on Land Transportation whose principal organizers are not
specified" (italics supplied).[11] Neither did the FNCLT letterheads[12] disclose the identity of the conference organizer since these
contained only an enumeration of names where private respondent Francisco Wenceslao was described as Executive Director
and Spokesman and not as a conference organizer.[13] The printout[14] and tentative program[15] of the conference were devoid of
any indication of Wenceslao as organizer. The printout which contained an article entitled "Who Organized the NCLT?" did not
even mention private respondent's name, while the tentative program only denominated private respondent as "Vice Chairman
and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and that he was only a part of the
organization, thus -
I would like to clarify for the record that I was only a part of the organization. I was invited then because I was the head of the
technical panel of the House of Representatives Sub-Committee on Industrial Policy that took care of congressional hearings.[16]
Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's columns. The
former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. [17] His letter to
the editor published in the 4 June 1989 issue of The Philippine Star even showed private respondent Wenceslao's uncertainty -
Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National Conference on Land
Transportation (June 29-30) and me in the second paragraph of his May 31 column x x x[18]
Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the
verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from petitioner Borjal but from
private respondent himself when he supplied the information through his 4 June 1989 letter to the editor. Had private respondent
not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in
blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been sufficiently
identified as the subject of Borjal's disputed comments, we now proceed to resolve the other issues and pass upon the pertinent
findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed articles
constitute privileged communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in character
under the provisions of Art. 354 of The Revised Penal Code which state -
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.
Respondent court explained that the writings in question did not fall under any of the exceptions described in the above-
quoted article since these were neither "private communications" nor "fair and true report x x x without any comments or
remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art.
VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in
any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention or justifiable motive. To this genre belong "private
communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art. 354 of The Revised Penal
Code for, as correctly observed by the appellate court, they are neitherprivate communications nor fair and true report without
any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure, the enumeration
under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's penal code but in the
Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. [19] As early as 1918, in United States v.
Caete,[20] this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional
guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it
express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez[21] and
reiterated in Santos v. Court of Appeals[22] -
To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing
violence to the concept of privileged communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: Public policy, the welfare of society, and the orderly administration of government have demanded
protection of public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of
privilege.
The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be
protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective self-
determination and eschews the strictly libertarian view that it is protective solely of self- expression which, in the words of Yale
Sterling Professor Owen Fiss,[23] makes its appeal to the individualistic ethos that so dominates our popular and political
culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision exempting
from liability only private communications and fair and true report without comments or remarks defeats, rather than promotes,
the objective of the rule on privileged communications, sadly contriving as it does, to suppress the healthy effloresence of public
debate and opinion as shining linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for
libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false
allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established
facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[24]
 There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private respondent
spelled out the objectives of the conference thus -
x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will embody a long term land
transportation policy for presentation to Congress in its next regular session in July. Since last January, the National Conference
on Land Transportation (NCLT), the conference secretariat, has been enlisting support from all sectors to ensure the success of
the project.[25]
Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of the First National Conference
on Land Transportation, you will need around One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or organizations as well
as individual transport firms and from individual delegates/participants.[26]
The declared objective of the conference, the composition of its members and participants, and the manner by which it
was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as
the FNCLT aiming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project
from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close
scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of the qualifications and
integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan[27] which the appellate court failed to consider or, for
that matter, to heed. It insisted that private respondent was not, properly speaking, a "public offical" nor a "public figure," which
is why the defamatory imputations against him had nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of the bloody rioting in the
American South over racial segregation. The then City Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York
Times for publishing a paid political advertisement espousing racial equality and describing police atrocities committed against
students inside a college campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently
identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the basis of what he believed
were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that honest
criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of
speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of
all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred
from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be
proved or because of fear of the expense of having to prove it.[28]
In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any
rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong[29] as -
x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs and his character, has become a public personage. He is, in other words, a
celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before
the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant
prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a
position where the public attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of the government and the
private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage
and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not
qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he
was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a
subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose to become involved. The publics primary interest is in the event;
the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's
prior anonymity or notoriety.[30]
There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of
petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his
moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which included
solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the
management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and
competence. These are matters about which the public has the right to be informed, taking into account the very public character
of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the
conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild
blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the
privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v.
Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic
and sometimes unpleasantly sharp attacks on the government and public officials. [31]
The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the
absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a
communication destroys the presumption of malice.[32] The onus of proving actual malice then lies on plaintiff, private
respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of malice as the true
motive of his conduct.[33]
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person
defamed, and implies an intention to do ulterior and unjustifiable harm.[34] Malice is bad faith or bad motive.[35] It is the essence
of the crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner
Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to
inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable
ends. On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his
responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. Surely, we
cannot begrudge him for that. Every citizen has the right to enjoy a good name and reputation, but we do not consider that
petitioner Borjal has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published with
the knowledge that they are false or in reckless disregard of whether they are false or not. [37] "Reckless disregard of what is false
or not" means that the defendant entertains serious doubt as to the truth of the publication, [38] or that he possesses a high degree
of awareness of their probable falsity.[39]
The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or in
reckless disregard of what is false or not. This is not to say however that the very serious allegations of petitioner Borjal assumed
by private respondent to be directed against him are true. But we nevertheless find these at least to have been based on
reasonable grounds formed after the columnist conducted several personal interviews and after considering the varied
documentary evidence provided him by his sources. Thus, the following are supported by documentary evidence: (a) that private
respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the
processing and release of the import approval and certificate of availability of a garment firm in exchange for the monetary
contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of
the GTEB in processing applications and clarifying that all applicants were treated equally;[40] (b) that Antonio Periquet was
designated Chairman of the Executive Committee of the FNCLT notwithstanding that he had previously declined the
offer;[41] and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes declined the
invitation to be guest speakers in the conference, their names were still included in the printout of the FNCLT. [42] Added to these
are the admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB
in exchange for monetary contributions to the FNCLT;[43] (b) he included the name of then Secretary of Transportation Rainerio
Reyes in the promotional materials of the conference notwithstanding the latter's refusal to lend his name to and participate in the
FNCLT;[44] and, (c) he used different letterheads and telephone numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual
malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.[46] In Bulletin
Publishing Corp. v. Noel[47] we held -
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 libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general
community.
latter to damages. On the contrary, private respondent acted within his rights to protect his honor from what he perceived to be
malicious imputations against him. Proof and motive that the institution of the action was prompted by a sinister design to vex
and humiliate a person must be clearly and preponderantly established to entitle the victim to damages. The law could not have
meant to impose a penalty on the right to litigate, nor should counsels fees be awarded every time a party wins a suit.[51]
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] -
Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with
his army, a judge with his jury, we are, all of us, the subject of public discussion. The view of our court has been thus stated: It is
only in despotisms that one must speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on asubject
touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain the golden mean between
defamation, on one hand, and a healthy and robust right of free public discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its Resolution
of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and the complaint for damages against
petitioners is DISMISSED. Petitioners counterclaim for damages is likewise DISMISSED for lack of merit. No costs.
SO ORDERED.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the
same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not
be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement.

At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S.
v. Bustos,[48] 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 unjust accusation; the wound
may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments
upon his official acts.

The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity
to pass upon them.

We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to
and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that
is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual
self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short,
nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is to truly comprehend the
quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the
freedom of others.If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-
regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x
x x a lively sense of responsibility, a free press may readily become a powerful instrument of injustice." [49]

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and
operates. For we have always strongly maintained, as we do now, that freedom of expression is man's birthright - constitutionally
protected and guaranteed, and that it has become the singular role of the press to act as its "defensor fidei" in a democratic
society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.[50]

On petitioners counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private
respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the press; or that
he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the

[G.R. No. 113216. September 5, 1997]
RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his
capacity as Presiding Judge of RTC, Quezon City, respondents.
DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution
of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it
before proceeding further with the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court,
however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and
simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the Decision[1] of the Court of
Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional
Trial Court of Quezon City denying the prosecutions withdrawal of a criminal information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner
herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the
complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information for libel
against petitioner with the Regional Trial Court of Quezon City, Branch 104.[3] The Information filed by Assistant City
Prosecutor Augustine A. Vestil reads: [4]
That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice,
did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine
Heart Center, East Avenue, this city, and furnished the same to other officers of the said hospital, said letter containing
slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart
Center, from January 31, 1989 to January 31, 1991.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31,
1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the
Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had
officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases
done by Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing
20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never
any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your
approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties
were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical
Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both
consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr.
Monzon came sporadically during the week while I was left with everything from training the residents and supervising the
Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr.
Torres.
In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your
attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me
stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us
I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case
basis.
Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at
this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the
code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and
untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby
casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of
Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment
of further proceedings and to elevate the entire records of the case.[5] Accordingly, a Motion to Defer Arraignment dated
September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for
granted the motion and deferred petitioners arraignment until the final termination of the petition for review. [7] Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied.

Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the
Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.[8]
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling
petitioners arraignment on January 18, 1993 at two oclock in the afternoon.[9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating
prosecutor. Pertinent portions of Drilons ruling read:[10]
Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March
31, 1993, this Court referred the case to the Court of Appeals for proper determination and disposition pursuant to Section 9,
paragraph 1 of B.P. 129.[15]
Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the doctrine laid
down in Crespo vs. Mogul -- once a complaint or information has been filed in court, any disposition of the case, i.e., dismissal,
conviction or acquittal of the accused, rests on the sound discretion of the trial court. [16]

Hence, this recourse to this Court.

From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart
Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from
complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher
authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to The Issues
question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the
Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter
in which the party making the communication has an interest or concerning which he has a duty is privileged... although it
contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely
repeated the alleged errors of the trial court: [17]

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of
following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the Crespo vs. Mogul
Director of PHCA. (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because:

The same interpretation should be accorded the civil and administrative complaints which respondent filed against 1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government;
complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from
complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she 2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution;
would not have sent the second letter and filed the administrative and civil cases against complainants.
3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights;
Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and
malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling
the effects of the alleged libelous letter - that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock 4. It goes against the principle of non-delegation of powers;
and besmirched reputation - one year after they read the communication in question.
5. It sets aside or disregards substantive and procedural rules;
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the
instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the 6. It deprives a person of his constitutional right to procedural due process;
record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by
this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to review
the resolutions of prosecutors who are under his control and supervision. 7. Its application may constitute or lead to denial of equal protection of laws;

In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you 8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official;
filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof.
9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals;
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw
Information dated February 17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in 10. It does not subserve the purposes of a preliminary investigation because -
his Order dated February 22, 1993, as follows:[12]

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no
The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor bail for the accused;
of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462.
(10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an
[13] [14]
unnecessary trial;
Petitioners motion for reconsideration was denied by the trial judge in the Order dated March 5, 1993, as follows:
(10.c) It contributes to the clogging of judicial dockets; and
11. It has no statutory or procedural basis or precedent.
II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -
1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the
Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and
2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse
of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw
Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial courts
denial of the prosecutions Motion to Withdraw Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the
effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of
Appeals to the Supreme Court, provided:
SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made in the court
below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of
Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this Court motu proprio,
considering that under Section 4 of the same Rule, review is not a matter of right but of sound discretion.
We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is
unlike an appeal in a criminal case where the death penalty, reclusin perpetua or life imprisonment is imposed and where the
whole case is opened for review. Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court,
such that an erroneous specification of the issues may cause the dismissal of the petition. We stressed this in Circular No. 2-90,
entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court, as follows:
4. Erroneous Appeals. x x x x
e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated
against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such
basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal
prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse
and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to
specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court.
Determination of Probable Cause Is an Executive Function
The determination of probable cause during a preliminary investigation is judicially recognized as an executive function
and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the
inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by
law for that purpose.Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and
effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. [18]
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but
only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty
thereof.[19] By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not
equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for
the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise: [20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of
a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or
released. xxx The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation
proper--whether xxx there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore,
whether xxx he should be subjected to the expense, rigors and embarrassment of trial--is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a
sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutors
job.The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and
is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The
Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appealsstressed that the determination of
the existence of probable cause properly pertains to the public prosecutor in the established scheme of things, and that the
proceedings therein are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the
guilt or innocence of the persons charged with a felony or a crime.[21]
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor controls and directs the
prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the
direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or
may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the
evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing
the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private
persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have
the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown
to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when
after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case.
In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal
who conducted a reinvestigation, those of the prosecutor should normally prevail:[23]
x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not prudent or even
permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds
that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to
prosecute or file an information within a certain period of time, since this would interfere with the fiscals discretion and control
of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so,
and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal
should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable
doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the
offended party or the defendant, those of the fiscals should normally prevail. x x x x.
Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised
Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm,
nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of
justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The
scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve,
reverse or modify acts and decisions of subordinate officials or units; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x
x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service.
xxx xxx xxx
Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty,
function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred
upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke
any decision or action of said chief of bureau, office, division or service.
[24]
Supervision and control of a department head over his subordinates have been defined in administrative law as follows:
In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to
make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of
the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps
of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not
directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed.
Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo
In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did not foreclose the power or authority of the
secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of
the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or
chief state prosecutor. Thereafter, it may be appealed to the secretary of justice.
The justice secretarys power of review may still be availed of despite the filing of an information in court. In his
discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as
amended,[27] specifically in Section 1 (d):
(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon
review, reversed by the Secretary of Justice, the latter may, where he finds that no prima facie case exists, authorize and direct
the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where
he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn
statements or evidence submitted without the necessity of conducting another preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in
preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section
4 provides an exception: appeals from resolutions finding probable cause upon a showing of manifest error or grave abuse of
discretion are allowed, provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary of
justice was given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases
remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise
provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not
exceed prisin correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve
the appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated
February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be
governed by these rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional
State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the
appellant had already been arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the
information in court.
 Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is
recognized also by Section 4 of Rule 112 of the Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state
prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary
investigation or to dismiss or move for dismissal of the complaint or information.
This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control
over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should
defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does
not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the
trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights
which are legally demandable and enforceable.Such power includes 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. [28] Under
this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated to
the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of
the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their
functions. In the words of Justice Laurel in Angara vs. Electoral Commission:[29]
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, 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 sources
and guarantees to them. This is in truth all that is involved in what is termed judicial supremacy which properly is the power of
the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of
the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally
meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the trial
court to automatically dismiss the case or grant the withdrawal of the information upon the resolution of the secretary of
justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and the recent case of Roberts, Jr. vs.
Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because granting the
motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.
The Marcelo and Martinez Cases Are Consistent
In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution of a
motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw
an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the
awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal,
whether before or after the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary
who reviewed the records of the investigation; provided that such grant or denial is made from its own assessment and evaluation
of the merits of the motion.
In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal
upon the recommendation of the secretary of justice because such grant was based upon considerations other than the judges own
assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence
against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both
decisions followed the rule in Crespo vs. Mogul:Once a complaint or information is filed in court, any disposition of the case
such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their
own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal,
separately and independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or that no
probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the
motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the
criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in
view of the pendency of private complainants appeal to the secretary of justice. In effect, the secretarys opinion was totally
disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial
discretion as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own independent
determination of the merits of the said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of Justice
In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice
secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice,
the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all of which were submitted to the
court -- the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely
on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive calls for an independent
and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys
recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely
ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant
the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable
cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial
judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the
disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment
the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which
contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecutions
motion for reconsideration of the trial courts Order of February 22, 1993, and even the private complainants opposition to said
motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial
court serves no purpose and will only clog the dockets.
 We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding The same interpretation should be accorded the civil and administrative complaints which respondent filed against
of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got
countercharge. from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the
PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants.
In every case for libel, the following requisites must concur:
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a
(a) it must be defamatory; communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the
communication, such communication does not amount to publication within the meaning of the law on
(b) it must be malicious; defamation.[35] Publication in libel means making the defamatory matter, after it has been written, known to someone other than
the person to whom it has been written.[36] The reason for such rule is that a communication of the defamatory matter to the
person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he
(c) it must be given publicity; and has of himself, but the estimation in which others hold him.[37] In this case, petitioner submitted the letter to the director of said
hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no publicity and the matter is
(d) the victim must be identifiable. clearly covered by paragraph 1 of Article 354 of the Penal Code.

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been
committed and that the accused probably committed it. A cursory reading of the information immediately demonstrates a failure
on the part of the complainant to establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it
is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response
to duty but merely to injure the reputation of the person who claims to have been defamed. [33] In this case however, petitioners
letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and
against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged
communication under Article 354(1) of the Revised Penal Code which provides:
ART. 354. Requirement of 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:
Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991,
the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against
petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not
only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his
denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary
of justice. All in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he
supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an
independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information
dated February 17, 1993 filed before the trial court is GRANTED. No costs.
SO ORDERED.

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

xxx xxx xxx

The rule on privileged communication is that a communication made in good faith on any subject matter in which the
communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding
interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and
actionable. Petitioners letter was a private communication made in the performance of a moral duty on her part. Her intention
was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged
nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence
of malice, there is no libel. We note that the information itself failed to allege the existence of malice.

Thus, we agree with the ruling of the secretary of justice:[34]

x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other
responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject
letter is a complaint x x x on a subject matter in which respondent has an interest and in reference to which she has a duty to
question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the
Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any subject matter
in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains
incriminatory or derogatory matter which, without the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of
following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx.

[G.R. No. 139987. March 31, 2005]
SALVADOR D. FLOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari seeking to reverse the Decision of the Court of Appeals in CA-G.R. CR
Nos. 11577 and 33204[1] which affirmed the joint decision of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur,
in Criminal Case No. P-1855 convicting the petitioner and Nick Ramos[2] for libel and Civil Case No. P-1672 awarding damages
in favor of the private complainant, former Governor of Camarines Sur and Minister of the Presidential Commission on
Government Reorganization Luis R. Villafuerte.
The facts are not disputed.
An information for libel was filed before the RTC, Branch 20, Naga City, against the petitioner and Ramos who were then
the managing editor and correspondent, respectively, of the Bicol Forum, a local weekly newspaper circulated in the Bicol
Region. The information reads as follows:
th th
That on or about the 18 day up to the 24 day of August, 1986, in the Bicol Region comprised by the Provinces of Albay,
Catanduanes, Sorsogon, Masbate, Camarines Sur, and Camarines Norte, and the Cities of Iriga and Naga, Philippines, and within
the jurisdiction of this Honorable Court under R.A. No. 4363, and B.P. Blg. 129, the above-named accused who are the news
correspondent and the managing editor, respectively, of the local weekly newspaper Bicol Forum, did then and there willfully,
unlawfully and feloniously, without justifiable motive and with malicious intent of impeaching, discrediting and destroying the
honor, integrity, good name and reputation of the complainant as Minister of the Presidential Commission on Government
Reorganization and concurrently Governor of the Province of Camarines Sur, and to expose him to public hatred, ridicule and
contempt, write, edit, publish and circulate an issue of the local weekly newspaper BICOL FORUM throughout the Bicol
Region, with banner headline and front page news item read by the public throughout the Bicol Region, pertinent portions of
which are quoted verbatim as follows:
VILLAFUERTES DENIAL CONVINCES NO ONE
NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government money for his trips to Japan and
Israel two weeks ago has failed to convince people in Camarines Sur, reliable sources said.
What the people know, the sources said, is that the two trips of the governor who is also the minister of the Government
Reorganization Commission was purely junket.
This was confirmed when capitol sources disclosed that about P700,000.00 collected by way of cash advances by ranking
provincial officials were allegedly used for the two trips.
The cash advances, the sources said, were made at the instance of Villafuerte.
It was learned that the amount was withdrawn without resolution approving its release.
Villarfuerte however said that he spent his own money for the two trips.
The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines Sur, the report said.
This was contested by several individuals who told Bicol Forum that the members of Villafuertes entourage did not have official
functions in the province.
Villafuerte and his companions reportedly attended the 1986 baseball games in Japan.
When in truth and in fact said allegations are false and utterly untrue as the complainant has not done such acts, thus
embarrassing, discrediting and ridiculing him before his friends, followers and other people. [3]
The information was later amended to include Jose Burgos, Jr., who was at that time the publisher-editor of the Bicol
Forum.[4] The trial court, however, never acquired jurisdiction over his person as he did not surrender nor was he ever arrested by
the authorities.
It appears from the records that prior to the filing of the criminal complaint, the private complainant had already instituted
a separate civil action for damages arising out of the questioned news article before the RTC, Branch 23, Naga City. Due to this,
the criminal suit for libel was ordered consolidated with the civil case pursuant to Article 360 of the Revised Penal Code, as
amended.[5] Subsequently, the consolidated actions were transferred to RTC, Branch 33, Pili, Camarines Sur, in accordance with
Republic Act No. 4363 which outlines the venue of libel cases in the event that the offended party is a public official such as in
this case.[6] Thereafter, a joint trial of the cases ensued with accused Burgos, Jr., being declared as in default in the civil case due
to his failure to attend its pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty. [7]
During the trial, the private complainant himself took the witness stand to refute the statements contained in the subject
news article. According to him, there were previous news reports and broadcasts regarding the cash advances allegedly made by
some provincial government officials of Camarines Sur and that it was also reported that he made a trip to Japan which was
branded as a mere junket.[8] The private complainant, however, explained that after he clarified over the radio that he never went
to Japan, the issue was never discussed again until the matter was included in the questioned news item. [9] As for the cash
advances, the private complainant stated that the Provincial Auditor and the Budget Officer had already made a statement to the
effect that he had no pending cash advances. [10] Further, the private complainant clarified that he made his trip to Israel in his
capacity as a cabinet member of former President Corazon C. Aquino and that he spent his own money for the said official trip
thereby debunking Bicol Forums report that his travel to Israel was purely a junket.[11] The private complainant also complained
that no one from the Bicol Forum made any attempt to get his side of the story nor was he aware of any effort exerted by the
representatives of said publication to confirm the veracity of the contents of the subject news article from any source at the
provincial capitol.[12] Finally, the private complainant took exception to the banner headline which states Villafuertes Denial
Convinces No One. According to him, the Bicol Forum seemed to be making a mockery of his previous explanations regarding
the cash advances and his trips abroad and such a sweeping statement subjected him to public ridicule and humiliation. [13]
On the other hand, Ramos testified that he wrote the questioned news item on the basis of a note given to him by a source
whom he refused to identify.[14] Said source was allegedly connected with the Provincial Treasurers Office.[15] The note reads:
Media consultants of Villafuerte specially DWLV announcers had been announcing the travels of Villafuerte to Israel and Japan
without spending a single centavo. This is unbelievable as lately the Gov. said he [spent] his own money for the trips.
No one will believe this. The governor and party went to Israel and Japan as there were some P700,000.00 cash advances
collected in form of advances by top provincial officials for the trips. No [doubt] Villafuerte had a hand on this because he is the
governor approving cash advances. Among them were Panes and Maceda.
There were no resolution, please publish this that people concern will react and they be forced to account for the money.
Authenticated papers will follow. Bulls eye ito.
capr[16]
 Ramos likewise alleged that prior to writing the subject news article, he went to his source to ask some clarificatory
questions and was told that he would be given authenticated records of the cash advances. Later, he was given a copy of the
Schedule of Cash Advances of Disbursing Officers and Other Officers (as of June 30 1987).[17]Among the provincial government
officials listed therein were the private respondent who had a 1986 balance of P25,000.00 incurred for cultural activities; Atty.
Jose Maceda who also had a 1986 balance of P130,084.00 for sports development, Operation Smile, NAMCYA Festival, and
prisoners subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000 for the purpose of sports
development. Ramos also claimed that when he went to the Provincial Treasurers Office to conduct his investigation, he was
shown some vouchers and was told that many of the members of the baseball delegation to Japan were not elected provincial
officials and, in fact, some mayors and private individuals were sent as part of the Philippine group. [18]
During his turn at the witness stand, the petitioner admitted that the headline was written by him in his capacity as the
managing editor[19] in accordance with the policy of their paper to print as headlines matters dealing with public concerns and
public officials.[20] According to him, the banner headline and the sub-headline truthfully reflect the substance of the story
prepared by Ramos.[21]
After the trial, the court a quo rendered a joint decision the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:
In Criminal Case No. P-1855
Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the crime of Libel defined and punished
under Article 353 in connection with Article 355 of the Revised Penal Code and they are each sentenced to pay a fine of Two
Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency; and to pay the costs of suit.
In Civil Case No. P-1672
Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly and severally to the plaintiff the
following:
1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages;
2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;
3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and to pay the costs of suit. [22]
Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the Court of Appeals which
affirmed the judgment of the trial court through its decision dated 10 December 1996. [23] They thereafter filed a motion for
reconsideration[24] which was denied for lack of merit by the appellate court in its resolution of 19 August 1999. [25]
In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus:
The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who made the trips abroad using
government money as there were cash advances of P700,000.00 made by top provincial officials, without first having verified
the truth about the matters contained in his report. The imputation became malicious when they are based on mere conjectures.
The alleged libelous article must be construed as a whole. The effect of the news item upon the minds of the readers must be
considered in the prosecution of libel cases. The words used in the news report tends to impute a criminal act on the governor
which may cause the readers to hold him up to public ridicule and induce them to believe that the governor was indeed guilty.
The accused editor admitted that he did not make any personal investigation as to the truth of the statements made in the report.
When such communication was sent for publication, the so-called privilege was destroyed when malice in fact was present. [26]
In fine, the sole issue brought for the consideration of this Court is whether the questioned news item is libelous. We
reverse.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural person or juridical
person, or to blacken the memory of one who is dead. [27] Any of these imputations is defamatory and under the general rule
stated in Article 354 of the Revised Penal Code, every defamatory imputation is presumed to be malicious. [28] The presumption
of malice, however, does not exist in the following instances:
1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official
proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of their functions.[29]
The law recognizes two kinds of privileged matters. First are those which are classified as absolutely privileged which
enjoy immunity from libel suits regardless of the existence of malice in fact. Included herein are statements made in official
proceedings of the legislature by the members thereof.[30] Likewise, statements made in the course of judicial proceedings are
absolutely privileged but only if pertinent or relevant to the case involved. [31]
The other kind of privileged matters are the qualifiedly or conditionally privileged communications which, unlike the first
classification, may be susceptible to a finding of libel provided the prosecution establishes the presence of malice in fact. The
exceptions provided for in Article 354 of the Revised Penal Code fall into this category.
In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that the enumeration stated in Article 354 of
the Revised Penal Code is not exclusive but is rendered more expansive by the constitutional guarantee of freedom of the press,
thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in
the nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as
1918, inUnited States v. Caete [38 Phil. 253], this Court ruled that publications which are privileged for reasons of public policy
are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere
failure of the legislature to give it express recognition in the statute punishing libels. [33]
Clearly, when confronted with libel cases involving publications which deal with public officials and the discharge of
their official functions, this Court is not confined within the wordings of the libel statute; rather, the case should likewise be
examined under the constitutional precept of freedom of the press. As enunciated in the seminal case ofUnited States v.
Bustos[34] -
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. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to
any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary to any or all the agencies of
Government public opinion should be the constant source of liberty and democracy. [35]
Of course, this does not mean that a public official is barred from recovering damages in cases involving defamations. His
entitlement, however, is limited to instances when the 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. [36] This is the test laid down in the leading case of New
York Times Co. v. Sullivan.[37]
In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous news item was designed to
malign the integrity and reputation of the [private complainant] for it ascribed to the latter corruption and dishonesty in
government service.[38] Moreover, the OSG maintains that the questioned news article does not enjoy the mantle of protection
afforded a privileged matter as the petitioner and Ramos published the news item based on mere speculation and
conjecture.[39] Their decision to publish the unverified information furnished them by the unnamed source, who was never
presented before the trial court, and their failure to verify the truth of statements which appeared under the banner headline of the
18-24 August 1986 issue of the Bicol Forum indicates that the news item was published intemperately and maliciously. [40] The
OSG is therefore of the opinion that the subject news item satisfied the test pronounced in the New York Times case. We do not
agree.
As the US Supreme Court itself declared, reckless disregard cannot be fully encompassed in one infallible definition.
Inevitably its outer limits will be marked out through case-by-case adjudication.[41] The case of Garrison v. State of
Louisiana[42] stressed that only those false statements made with the high degree of awareness of their probable falsity demanded
by New York Times may be the subject of either civil or criminal sanctions[43] and concluded by restating the reckless disregard
standard in the following manner:
. . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned,
not on mere negligence, but on reckless disregard for the truth.[44]
Subsequently, in St. Amant v. Thompson[45] it was stated that
While substantiation of the facts supplied is an important reporting standard, still, a reporter may rely on information
given by a lone source although it reflects only one side of the story provided the reporter does not entertain a high degree of
awareness of [its] probable falsity.[49] The prosecution, in this case, utterly failed to prove that the petitioner and Ramos
entertained such awareness.
We also hold that the petitioners and Ramoss failure to present their informant before the court as well as other evidence
that would prove Ramos claim that he had conducted an investigation to verify the information passed on to him should not be
taken against them. On this point, we turn to our pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et
al.,[50] to wit:
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.[51]

Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily
. . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or
apparent when, during his cross-examination, Ramos testified that he was not allowed by the custodians of the material
would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact
provincial financial records to photocopy the latter particularly because said documents dealt with the matter of cash
entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or
advances.[52]
falsity and demonstrates actual malice. [46]
Further, as their informant was employed in the provincial treasurers office, it is understandable why he opted not to
Applied to the case at bar, we hold that the prosecution failed to meet the criterion of reckless disregard. As the records expose himself and openly charge his superior, the private complainant herein, lest he incur the latters wrath.
reveal, the issue of cash advances against the coffers of the provincial government of Camarines Sur was a major political topic
Finally, the private respondent claims that the banner headline ridiculed him before the public does not merit
in said locality at that time. Even the private respondent himself admitted during his direct testimony that he went on radio in
consideration as the rule in this jurisdiction is that [t]he headline of a newspaper story or publication claimed to be libelous must
order to address the matter. It was clearly a legitimate topic to be discussed not only by the members of the media but by the
be read and construed in connection with the language that follows.[53] A perusal of the entire news story accompanying the
public as what was involved was the dispensation of taxpayers money.
headline in this case readily establishes the fact that the questioned article dealt with refutations by the private respondents critics
Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession information relating to the of his explanation over the radio with regard to the issues mentioned therein. The wording of the headline may have contained an
cash advances and the private respondents travels abroad. The information was provided by one who worked in the provincial exaggeration but the same nevertheless represents a fair index of the contents of the news story accompanying it.[54]
treasurers office and had access to the pertinent financial records of the provincial government. Their informant was familiar
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10 December 1996 which affirmed
with the procedure with regard to the approval of cash advances. The inference they drew from the note given by their source
the Joint Decision dated 18 March 1991 of the Regional Trial Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19
that the private respondent prodded some of the provincial government officials to take out cash advances may have been false
August 1999 denying reconsideration are REVERSED and SET ASIDE. No costs.
but the same does not warrant a conviction for libel nor support a claim for damages. As discussed by Newell
SO ORDERED.
Slight unintentional errors, however, will be excused. If a writer in the course of temperate and legitimate criticism falls into
error as to some detail, or draws an incorrect inference from the facts before him, and thus goes beyond the limits of strict truth,
such inaccuracies will not cause judgment to go against him, if the jury are satisfied, after reading the whole publication, that it
was written honestly, fairly and with regard to what truth and justice require. It is not to be expected that a public journalist will
always be infallible.[47]

During the hearing of these cases, the private complainant also refuted the material points contained in the subject news
article in an effort to prove the falsity of the allegations contained therein. This Court finds such effort inadequate to adjudge the
petitioner guilty of the crime of libel or to entitle the private respondent to damages. Under the New York Times test, false
statements alone are not actionable; maliciousness may be shown only through knowledge of falsity or reckless disregard of truth
or falsity.[48]

Further, both the prosecution and the OSG make capital of Ramos and the petitioners failure to confirm the information
supplied by the unidentified source which ultimately became the basis for the news article under consideration in an obvious
attempt to establish the element of reckless disregard for truth. The prosecution also painstakingly tried to establish malice in fact
on the part of the petitioner by harping on the fact that neither he nor Ramos took the time to give the private respondent the
chance to air his side before putting the alleged libelous news story to print.

The contention fails to persuade.

 The petitioners admitted publication of the news item, ostensibly out of a social and moral duty to inform the public on matters
PHILIPPINE JOURNALISTS, INC. (PEOPLES G.R. No. 143372 of general interest, promote the public good and protect the moral public (sic) of the people, and that the story was published in
JOURNAL), ZACARIAS NUGUID, JR. and CRISTINA good faith and without malice.[2]
LEE, P e t i t i o n e r s, Present:
The principal source of the article was a letter[3] by a certain Atty. Efren Angara addressed to Commissioner Andrea Domingo of
PUNO, the Commission on Immigration and Deportation (CID, now Bureau of Immigration), which states:
Chairman,
- versus - AUSTRIA-MARTINEZ, Dear Madame:
CALLEJO, SR.,
TINGA, and We would like to request your office to verify the true status/authenticity of the residency in
CHICO-NAZARIO, JJ. the Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently
FRANCIS THOENEN, residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Paraaque, Metro Manila. I
R e s p o n d e n t. Promulgated: received (sic) complaint from my clients residing around his vicinity that this foreigner had (sic)
been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting
December 13, 2005 dogs and cats passing his house wall everytime.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their
pets slips (sic) out unnoticed. A confrontation between him and the owner of the dog he shoot, (sic)
DECISION already occurred last time. In some instances this guy had been always driving his car barbarously
inside the subdivision with children playing around (sic) the street. Before my clients petitioned
themselves with the endorsement of the Homeowners Association and filed to your office for
CHICO-NAZARIO, J.: deportation were respectfully seeking your assistance to investigate this alien to prevent further
incident occurrence (sic) in the future. He should not be allowed to dominate the citizens of this
For almost a century, this Court has sought that elusive equilibrium between the law on defamation on one hand, and the country.
constitutionally guaranteed freedoms of speech and press on the other. This case revisits that search.

On 30 September 1990, the following news item appeared in the Peoples Journal, a tabloid of general circulation: Very truly yours,

Swiss Shoots Neighbors Pets Atty. Efren B. Angara

RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to deport a Swiss who
allegedly shoots wayward neighbors pets that he finds in his domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis
Thoenen, of 10 Calcutta BF Homes Phase III, could help prevent the recurrence of such incident in the
future.
Angara explained that house owners could not control their dogs and cats when they slip out of their
dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate
the problem, Angara said.
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy of the above letter from
a trusted source in the CIDs Intelligence Division. They claimed to have reasonable grounds to believe in the truth and veracity
of the information derived (from their) sources.[4]
It was proven at trial that the news article contained several inaccuracies. The headline, which categorically stated that the
subject of the article engaged in the practice of shooting pets, was untrue.[5] Moreover, it is immediately apparent from a
comparison between the above letter and the news item in question that while the letter is a mere request for verification of
Thoenens status, Lee wrote that residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who allegedly
shoots neighbors pets. No complaints had in fact been lodged against him by any of the BF Homeowners, [6] nor had any pending
deportation proceedings been initiated against him in the Bureau of Immigration.[7]

Cristina Lee[1]
The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with his Filipina wife and
their children. Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing to verify
the truth of the same prior to publication, he filed a civil case for damages against herein petitioners Philippine Journalists, Inc.,
Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and that since it had been
published, he and his wife received several queries and angry calls from friends, neighbors and relatives. For the impairment of
his reputation and standing in the community, and his mental anguish, Thoenen sought P200,000.00 in moral
damages, P100,000.00 in exemplary damages, and P50,000.00 in attorneys fees.
Thoenen also submitted a Certification[8] from the Office of the Bar Confidant that there was no lawyer in its rolls by the name of
Efren Angara, earlier cited by petitioner Lee as the author of the letter on which she based her article. Finally, the trial also
showed that despite the fact that respondents address was indicated in the letter, Cristina Lee made no efforts to contact either
him or the purported letter-writer, Atty. Angara.[9]
The petitioners claim that Lee sought confirmation of the story from the newspapers correspondent in Paraaque, who told her
that a woman who refused to identify herself confirmed that there had indeed been an incident of pet-shooting in the
neighborhood involving the respondent.[10] However, the correspondent in question was never presented in court to verify the
truth of this allegation. Neither was the alleged CID source presented to verify that the above letter had indeed come from the
Department, nor even that the same was a certified true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision [11] in favor of the petitioners, which
reads in part:
 There is no malice on the part of the defendants in publishing the news item done in the
exercise of their profession as journalists reporting to the people on matters of public interest. The news
report was based on an official communication filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September 30,
1991, which is similar to the present case:
While indeed, the news item subject of the present case might have
ruffled the sensitivities of plaintiff, this Court however believes that the alleged
defamatory articles falls within the purview of a qualifiedly privileged matter, and
that therefore, it cannot be presumed to be malicious. The onus of proving malice is
accordingly shifted to the plaintiff, that is, that he must prove that the defendants
were actuated by ill-will in what they caused to be printed and published, with a
design to carelessly or wantonly injure the plaintiff. (US vs. Bustos, et al., 37 Phil.
731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the freedom of the
press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS.[12]
On appeal, the court a quo reversed[13] the trial court. It held that although freedom of expression and the right of speech and of
the press are among the most zealously guarded in the Constitution, still, in the exercise of these rights, Article 19 of the Civil
Code requires everyone to act with justice, give everyone his due, and observe honesty and good faith. The appellate court
emphasized that Thoenen was neither a public official nor a public figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item published in the 30
September 1990 edition of Peoples Journal had been done in violation of the principle of abuse of right
under Article 19 of the Civil Code, in the absence of a bona fide effort to ascertain the truth thereof, i.e., to
observe honesty and good faith, which makes their act a wrongful omission. Neither did they act with
justice and give everyone his due, because without ascertaining the veracity of the information given them
by the Intelligence Bureau of the Bureau of Immigration, they published a news article which they were
aware would bring the person specifically named therein, viz, Francis Thoenen, the plaintiff-appellant in
this case, into disrepute.
.
WHEREFORE, the foregoing considered, the Decision appealed from is hereby REVERSED
and SET ASIDE. In its stead, We find for the appellant and award him moral damages of P200,000.00;
exemplary damages of P50,000.00, and legal fees to P30,000.00; all of which shall be borne jointly and
severally by appellees.[14]
Petitioners motion for reconsideration having been denied, [15] this petition for certiorari under Rule 45 of the 1997
Rules of Civil Procedure was filed on the following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable under
Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was based on
a letter released by the Bureau of Immigration, hence a qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the subject
news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the same was excessive
unconscionable and devoid of any basis.
The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights under the
New Civil Code. They further claim the constitutional protections extended by the freedom of speech and of the press clause of
the 1987 Constitution against liability for libel, claiming that the article was published in fulfillment of its social and moral duty
to inform the public on matters of general interest, promote the public good and protect the moral [fabric] of the
people.[16] They insist that the news article was based on a letter released by the Bureau of Immigration, and is thus a qualifiedly
privileged communication. To recover damages, the respondent must prove its publication was attended by actual malice - that
is, with knowledge that it was false or with reckless disregard of whether it was false or not. [17]
For the reasons stated below, we hold that the constitutional privilege granted under the freedom of speech and the
press against liability for damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute. The freedom of speech and press and assembly, first laid
down by President McKinley in the Instruction to the Second Philippine Commission of 07 April 1900, is an
almost verbatim restatement of the first amendment of the Constitution of the United States.[18] Enshrined in Section 4, Article III
of the Bill of Rights of the 1987 Constitution, it states, 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.
But not all speech is protected. The right of free speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting
words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [19]
Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
For an imputation to be libelous, the following requisites must be met: (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.[20] In Vasquez v. Court of Appeals,[21] we had occasion to further explain. Thus:
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one
who is dead.
There is publication if the material is communicated to a third person. It is not required that the
person defamed has read or heard about the libelous remark. What is material is that a third person has
read or heard the libelous statement, for a mans reputation is the estimate in which others hold him, not the
good opinion which he has of himself.
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third
person or a stranger was able to identify him as the object of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
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 security 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. (citations omitted,
emphasis supplied)
In this case, there is no controversy as to the existence of the three elements. The respondents name and address were
clearly indicated in the article ascribing to him the questionable practice of shooting the wayward pets of his neighbors. The
backlash caused by the publication of the article was in fact such that stones had been thrown at their house, breaking several
flower pots, and daily and nightly calls compelled him to request a change of their telephone number. [22] These facts are not
contested by the petitioners. What the petitioners claim is the absence of proof of the fourth element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of 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.
The article is not a privileged communication. We first discussed the freedom of speech and press and assembly vis-
a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos,[23] where we applied the prevailing English and
American jurisprudence to the effect 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. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must expected criticism be born for the common
good? Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the
Judiciary - to any or all the agencies of Government - public opinion should be the constant source of
liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration of government
inevitably lead to the adoption of the doctrine of privileged communication. A privileged communication may be either
absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if
the author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly
privileged communications containing defamatory imputations are not actionable unless found to have been made without good
intention or justifiable motive. To this genre belong private communications and fair and true report without any comments or
remarks.[24]
The appellate court correctly ruled that the petitioners story is not privileged in character, for it is neither private
communication nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: A communication made bona fide upon any subject-
matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be
slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and
without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some
interest or duty in the matter.[25]
This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part
of public officials, which comes to his notice, to those charged with supervision over them. Such a
communication is qualifiedly privileged and the author is not guilty of libel. The rule on privilege,
however, imposes an additional requirement. Such complaints should be addressed solely to some official
having jurisdiction to inquire into the charges, or power to redress the grievance or has some duty to
perform or interest in connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged
communication, it lost its character as such when the matter was published in the newspaper and circulated among the general
population. A written letter containing libelous matter cannot be classified as privileged when it is published and circulated in
public,[27] which was what the petitioners did in this case.
Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other
official proceedings; there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers
in the exercise of their functions, for it concerns only false imputations against Thoenen, a private individual seeking a quiet life.
The petitioners also claim to have made the report out of a social and moral duty to inform the public on matters of
general interest.
In Borjal v. Court of Appeals, we stated that the enumeration under Art. 354 is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of public interest are likewise privileged. We stated that the
doctrine of fair commentaries means that while in general every discreditable imputation publicly made is deemed false, because
every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless,
when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In
order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition.[28]
Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a
public official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch,
Inc.,[29] that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official
nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in
a discussion of public interest.[30]
Having established that the article cannot be considered as privileged communication, malice is therefore presumed,
and the fourth requisite for the imputation of libel to attach to the petitioners in this case is met. The news article is therefore
defamatory and is not within the realm of protected speech. There is no longer a need to discuss the other assignment of errors,
save for the amount of damages to which respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc.,[31] we awarded damages where the defendants deliberately
presented a private individual in a worse light that what she actually was, and where other factual errors were not prevented
although defendants had the means to ascertain the veracity of their report. Such are the facts obtaining here.
We must point out that Lees brief news item contained falsehoods on two levels. On its face, her statement that
residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors pets is patently
untrue since the letter of the spurious Atty. Angara was a mere request for verification of Thoenens status as a foreign resident.
Lees article, moreover, is also untrue, in that the events she reported never happened. The respondent had never shot any of his
neighbors pets, no complaints had been lodged against him by his neighbors, and no deportation proceedings had been initiated
against him. Worse, the author of Lees main source of information, Atty. Efren Angara, apparently either does not exist, or is not
a lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but tried to contact either Angara
or Thoenen.

Although it has been stressed that a newspaper should not be held to account to a point of suppression
for honest mistakes, or imperfection in the choice of words,[32] even the most liberal view of free speech has never countenanced
the publication of falsehoods, especially the persistent and unmitigated dissemination of patent lies. [33] There is no constitutional
value in false statements of fact. Neither the intentional lie nor the careless error materially advances societys interest in
uninhibited, robust, and wide-open debate.[34] The use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated
falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and
morality The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy
constitutional protection (citations omitted).[35]

The 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 individuals 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.[36]

The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of P50,000.00 and legal
fees of P30,000.00, to be borne jointly and severally by the herein petitioners. In Guevarra v. Almario,[37] we noted that the
damages in a libel case must depend upon the facts of the particular case and the sound discretion of the court, although appellate
courts were more likely to reduce damages for libel than to increase them. [38] So it is in this case.

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the Regional Trial
Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the modification that petitioners are ordered
to pay, jointly and severally, moral damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees
of P20,000.00. No costs.

SO ORDERED.

A.M. No. 93-2-037 SC April 6, 1995
IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First Vice-
President, Mr. Vicente R. Samson, appellant,
NARVASA, C.J.:
Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what
is involved in the proceeding at bar — than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into
the limits of press freedom as it relates to public comment about the courts and their workings within a constitutional order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these
being:
1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted
versions of facts — or accusations which he made no bona fide effort previously to verify, and which he
does not or disdains to prove — cannot be justified as a legitimate exercise of the freedom of speech and
of the press guaranteed by the Constitution, and cannot be deemed an activity shielded from sanction by
that constitutional guaranty;
2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics"
which inter alia commands the journalist to "scrupulously report and interpret the news, taking care not
to suppress essential facts nor to distort the truth by improper omission or emphasis," and makes it his
duty "to air the other side and to correct substantive errors promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of
the judge presiding over it or degrades or tends to place the courts in disrepute and disgrace or otherwise
to debase the administration of justice, constitutes contempt of court and is punishable as such after due
proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to declare
the utterer or writer in contempt, the initiation of appropriate contempt proceedings against the latter by
the court is not only its prerogative but indeed its duty, imposed by the overmastering need to preserve and
protect its authority and the integrity, independence and dignity of the nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila
Standard." He describes himself as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his
membership in the law profession, "such membership is neither a critical nor indispensable adjunct in the exercise of his
occupation as a newspaperman." 2 His column in the "Manila Standard" is entitled "Opinion."
Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October,
1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time,
anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and
corruption in the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society.
In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order No. 11-93
dated January 25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary," 3 reading as
follows:
WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified reports
respecting corruption in the judiciary, said rumors and reports not only having been mentioned by media
and in anonymous communications, but having also been adverted to by certain government officials and
civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted composed of
Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and
Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain the truth respecting said
reports and statements, and to this end, forthwith interview at closed-door sessions or otherwise, such
persons as may appear to it to have some knowledge of the matter and who may be appealed to to share
that knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is
hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in
the fulfillment of its assigned mission, and shall submit its report to the Court within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in Metro
Manila (who) have become so notorious in their dealings with litigants and lawyers that they are now
called the "Magnificent Seven."" He stated that "(i)t has come to a point where lawyers and litigants try
their darndest to stay away from these judges. The answer, of course, is obvious."
2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven," which,
he said, should be distinguished from the first. He wrote: "When lawyers speak of the "Magnificent
Seven" one has to make sure which group they are referring to. Makati's "Magnificent Seven" are a bunch
of Makati regional trial court judges who fix drug-related cases. The "Magnificent Seven" in the Supreme
Court consists of a group of justices who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty Dozen."
In his column of October 21, 1992 he said that there are " . . . 12 judges who have acquired such reputation
for graft and corruption that they are collectively known as the "dirty dozen". These judges, I am told, are
not satisfied with accepting bribes; they actually sell their decisions to the litigants and "solicit" their bids
for what is clearly an auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some of
those from Pasay, Pasig and Quezon City; corruption in lower Courts had been admitted by an Executive
Judge in a Metro Manila Regional Trial Court (column of November 9, 1992); and because the "Dirty
Dozen" had given Makati the reputation of having the most corrupt RTC in the country, multi-nationals
and financing institutions explicitly stipulate in their agreements that litigation in connection with these
contracts may be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati
Judges, including some persons in the sheriffs office, are the most corrupt, where before, Pasay and
Quezon City had that dubious distinction (column of December 1, 1992).
4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office" at a
restaurant near the Court of Appeals building. He is known as the contact man of five CA divisions.
Lawyers say that this former jurist really delivers." In his column of January 29, 1993, he adverted to the
same unnamed former Justice as being "known for fixing cases for five CA divisions (that is what he tells
lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even write
his own decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a
restaurant owned by the wife of a former Marcos cabinet member and which has become a meeting place
for judges, CA justices, practicing lawyers, prosecutors and even Supreme Court justices. The former CA
 justice also has his own Chinese contact. After I exposed this last year, the habitues became scarce. But
they are back again, and the ex-justice is still-doing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining order
from a regional trial court in Metro-Manila by paying the judge anywhere between P30,000.00 and
P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for
decisions favoring drug-traffickers and other big-time criminals, naming the judges and giving detailed
accounts of the bribery (January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had
"hosted a lunch at its penthouse mainly for some justices, judges, prosecutors and law practitioners"
(January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or
more, depending on how much money is at stake, that a case is raffled off to a Judge who will be
"extremely sympathetic," and can arrange to have the Court issue attachments or injunctions for a service
fee of 1% over and above the regular premium of the attachment or injunction bond; a Chinese-Filipino
businessman who paid this "miracle worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking
provisional remedies should be raffled off to the judges," thus violating the rule that no case may be
assigned in multi-sala courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate
him to the Court of Appeals; and a son and a nephew of JBC members, who were also nominated to the
Court of Appeals, contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the
Supreme Court, or having a powerful politician as sponsor, citing specifically, the following nominees to
the Court of Appeals — Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of the
head of the Presidential Management Staff; Rosalio de la Rosa, "nephew of Justice Relova and cousin of
Chief Justice Narvasa;" and the fact that nomination of some worthy individuals was blocked because they
"incurred the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul
Victorino, closely identified with former Senate President Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992,
in the so-called "controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI)," G.R. No, 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT.
Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which has
recently been resolved.
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers published, on
January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This
gentleman, it appears, had been commissioned by one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to
examine and analyze the decision of Justice Gutierrez in relation to a few of his priorponencias and the writings of one of the
lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by the latter. Yerkes
proffered the conclusion that the Gutierrez decision "looks, reads and sounds like the writing of the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and the
Supreme Court itself, much of it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There
were insistent and more widespread reiterations of denunciations of incompetence and corruption in the judiciary. Another
derogatory epithet for judges was coined and quickly gained currency: "Hoodlums in Robes."
It was at about this time and under these circumstances — particularly the furor caused by the Yerkes opinion that the PLDT
decision was authored by a PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an item entitled, "Who will
judge the Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some
time last year — and that luxurious hotel accommodations and all their other expenses were paid by a pubic utility firm . . . and
that the trip . . . was arranged by the travel agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long
Distance Telephone Company), addressed a letter to the Chief Justice, submitting his sworn statement in confutation of "the item
in the column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly taken by six Justices with their
families last year," and requesting that the Court "take such action as may be appropriate." In his affidavit, Samson made the
following averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the
spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice
Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils.,
Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that
Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of
those who talked to me and the other officers of the PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since
the motions for reconsideration filed by the losing litigants therein, Eastern Telecommunications
Philippines, Inc. and NTC are still pending before the Court, we have tried to refrain from making any
public comments on these matters, lest any statement we make be interpreted to be an attempt on our part
to unduly influence the final decision of the Supreme Court in the above described case. However in the
interest of truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the
public utility firm referred to in the Jurado column and that specifically, it has never paid for any such
trip, hotel or other accommodations for any justice of the Supreme Court or his family during their
vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have
made the trip referred to in the Jurado column;
5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or any
other responsible officer of PLDT about the matter quoted in par. 2 hereof;
6. PLDT further emphatically and categorically denies that it had ever talked to or made arrangements
with any travel agency or any person or entity in connection with any such alleged trip of the Justices and
 their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year "(t)here is really no need to summon me. The committee can go by the many things I have written in my
1992 as referred to in Par. 2 hereinabove; column about corruption in the judiciary. Many of these column items have been borne out by subsequent
events."
7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of
its officers and employees are: 3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the
Committee's invitation, viz.:
a. Philway Travel Corporation
M-7 Prince Tower Cond. It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session
Tordesillas St., Salcedo Village of February 4, 1992. All indications are that you are the person with the most knowledge about corruption
Makati, Metro Manila in the judiciary and hence, appear to be best positioned to assist the Ad Hoc Committee in its function of
obtaining evidence, or leads, on the matter. You have, I believe, expressed more than once the laudable
desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you will
b. Citi-World Travel Mart Corp.
want to help the Court do precisely that, by furnishing the Committee with competent evidence,
Suite 3-4 Ramada Midtown Arcade
testimonial or otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial
M. Adriatico Street
or otherwise, as you must no doubt realize, being yourself a lawyer.
Ermita, Manila.

The records of these travel agencies will bear out the fact that no arrangements were made by them at the
instance of PLDT for the trip referred to in the Jurado column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of Equitable
Banking Corporation since 1958," subscribed and sworn to on February 10, 1993, in relation to another article of Jurado. 10 Veto
deposed that on Tuesday, January 5, 1993 he had "hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable
Banking Corporation Building, Ermita Branch . . . upon prior permission . . . obtained;" that the "expenses for said party were
exclusively from my personal funds and the food was prepared in my house by my wife and served by my house help . . . and
four (4) waiters . . . hired from the nearby Barrio Fiesta Restaurant;" that among the invited guests "were members of the
Supreme Court and Court of Appeals who . . . were my friends of forty years since our days in law school;" and that the party
was held in the lounge of the bank instead of in "my residence" "unlike in former years . . . because my birthday happened to fall
on a working day and my friends from the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from down town."
We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is
simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to
maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an
adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions, on
the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in
which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-gathering
mission, the Ad Hoc Committee will submit its report and recommendations to the Court which will then
take such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice
Hilario G. Davide, Jr. will preside as Chairman at these hearings since I will be unable to do so in view of
earlier commitments. We reiterate our invitation that you come before the Committee, and you may opt to
appear either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard,
Jurado still failed to appear.

However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of January 12 and
4. Statement of the Case:
28, 1993) as having been "hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law
Resolutions and Pleadings
practitioners. . . ." And upon this premise, Jurado indulged in the following pontification: "When those in the judiciary fraternize
this way, what chances before the courts do other lawyers, who are not "batang club," have against others who belong to the
fraternity? In the case of prosecutors and fiscals, what chances do opposing counsels have against those in the fraternity?" a. Resolution of the February 16, 1993
(column of January 12, 1993)
After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:
c. Information from Ad Hoc Committee
1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly
At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93) DOCKETED, and hereafter considered and acted upon as an official Court proceeding for the
to the following effect: determination of whether or not the allegations made by Atty. Emil Jurado herein specified are true;

1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to
Atty. Emiliano Jurado to appear before it "at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give
the committee information that will assist it in its task," i.e., to definitely and accurately determine the
facts as regards the published rumors and reports of corruption in the judiciary;
2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter
failed to appear at the time and place indicated; that instead, in his column in the issue of Manila Standard
of February 4, 1993, Jurado stated that he was told he was being summoned by the Ad HocCommittee, but
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty.
William Veto to Atty. Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila;
and copies of the same PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower
Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart Corp., Suite 3-
4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;
 3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter 6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTC-Makati's
and affidavit, the Philway Travel Corporations and the Citi-World Travel Mart Corporation each FILE A Dirty Dozen" (October 2, 1992, November 9, 1992, and December 1, 1992); the "Magnificent Seven" in
SWORN STATEMENT affirming or denying the contents of the PLDT affidavit; and the Supreme Court (February 3,1993); 12 the lady secretary of an RTC Judge (October 27, 1992); and the
former Court of Appeals Justice "fixing" cases (January 29, 1993) were all based on information given to
him in strict confidence by sources he takes to be highly reliable and credible; and he could not elaborate
4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT
on the factual and evidentiary basis of the information without endangering his sources.
letter and affidavit and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said
affidavits as well as the allegations made by him in his columns, herein specified, in which he shall make
known to the Court the factual or evidentiary bases of said allegations. By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on
information from sources he has found by experience to be trustworthy. He cannot compromise these
sources. He invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the publisher, editor
b. Jurado's Comment dated
or reporter of any publication from revealing the source of published news or information obtained in
March 1, 1993.
confidence, and points out that none of the matters subject of his columns has any bearing on the security
of the state.
As directed, Jurado filed his comment, dated March 1, 1993.
c. Resolution of March 2, 1993
He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any
investigation on corruption in the judiciary as this was what "his columns have always wanted to provoke." What had happened,
Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the Court
according to him, was that the first invitation of the Ad Hoc Committee was routed to his desk at the Manila Standard office on
received the affidavits of the executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-
the day of the hearing itself, when it was already impossible to cancel previous professional and business appointments; and the
President Vicente R. Samson — in relation to the Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of
second invitation, "if it was ever received" by his office, was never routed to him; and he had yet to see
the Citi-World Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de la Paz, General Manager of
it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely apologizes."
Philway Travel Corporation, dated February 19, 1993. Both denied ever having made any travel arrangements for any of the
Justices of the Supreme Court or their families to Hongkong, clearly and categorically belying the Jurado article.
He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he
had written. He expressed his firm belief that justice can be administered only by a judicial system that is itself just and
By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit
incorruptible, and the hope that this Court would view his response in this light.
comment thereon, if desired, within ten (10) days from receipt thereof.

He also made the following specific observations:

1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant's
belief and opinion and he (Jurado) would not comment on it except to say that while Mr. Samson is
entitled to his beliefs and opinions, these "bind only him and the PLDT."
2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence,
further substantiation would be surplusage. In fact, the Supreme Court had confirmed the story in its press
statement quoted by him (Jurado) in his January 30, 1993 column. His column about the Veto party
constitutes fair comment on the public conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge
Teresita Dy-Liaco Flores on the actuations of Judge de la Rosa and called the attention of the Court
thereto, Judge Flores' complaint, a copy of which had been sent to the Court Administrator, being on
meriting its attention.
4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on seven (7)
Makati judges authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South
CAPCOM, PNP, addressed to Vice-President Joseph E. Estrada, a copy of which he had received in the
news room of the Manila Standard. The existence of the report had been affirmed by a reporter of the
Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad Hoc Committee on January 11,
1993.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15, 1993. In
this pleading he alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters
of their own personal knowledge; that he (Jurado) had no specific knowledge of "the contents of these, let alone their veracity;"
and that the affidavits "bind no one except the affiants and possibly the PLDT." He also sought clarification on two points — as
to the capacity in which he is being cited in these administrative proceedings — whether "as full time journalist or as a member
of the bar," and why he is being singled out, from all his other colleagues in media who had also written about wrongdoings in
the judiciary, and required to comment in a specific administrative matter before the Court sitting En Banc — so that he might
"qualify his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions
of February 16 and March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as "a full-time
journalist" "who coincidentally happens to be a member of the bar at the same time," and granted him fifteen (15) days from
notice" to qualify his comment and/or assert his rights and privileges . . . in an appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993

Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the proceeding
5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the
on the following posited premises:
Judicial and Bar Council echo the public perception, and constitute fair comment on a matter of great
public interest and concern.
 1. The court has no administrative supervision over him as a member of the press or over his work as a
journalist.
2. The present administrative matter is not a citation for (a) direct contempt as there is no pending case or
proceeding out of which a direct contempt charge against him may arise, or (b) indirect contempt as no
formal charge for the same has been laid before the court in accordance with Section 3 (Rule 71) of the
Rules of Court.
3. His comments would be more relevant and helpful to the Court if taken together with the other evidence
and reports of other journalists gathered before the Ad Hoc Committee. He perceives no reason why his
comments should be singled out and taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if any, for the
above mentioned statements published by him, as well as "such action as may be appropriate" in the premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of
free speech and the reality that there are fundamental and equally important public interests which need on occasion to be
balanced against and accommodated with one and the other. There, the Court stressed the importance of the public interest in the
maintenance of the integrity and orderly functioning of the administration of justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of
free speech. He also invokes the related doctrines of qualified privileged communications and fair
criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him
that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of
expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on
occasion to be adjusted to and accommodated with the requirements of equally important public interests.
One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the
administration of justice. There is no antinomy between free expression and the integrity of the system of
administering justice. For the protection and maintenance of freedom of expression itself can be secured
only within the context of a functioning and orderly system of dispensing justice, within the context, in
other words, of viable independent institutions for delivery of justice which are accepted by the general
community. As Mr. Justice Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other; both are
indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. And one of the potent means
for assuring judges their independence is a free press. (Concurring in Pennekamp v.
Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This constitutional
right must be protected in its fullest extent. The Court has heretofore given evidence
of its tolerant regard for charges under the Libel Law which come dangerously
close to its violation. We shall continue in this chosen path. The liberty of the
citizens must be preserved in all of its completeness. But license or abuse of liberty
of the press and of the citizens should not be confused with liberty in its true sense.
As important as is the maintenance of an unmuzzled press and the free exercise of
the rights of the citizens is the maintenance of the independence of the Judiciary.
Respect for the Judiciary cannot be had if persons are privileged to scorn a
resolution of the court adopted for good purposes, and if such persons are to be
permitted by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the court. (In Re Severino
Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise,viz.:
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.
The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant principles which
must be deemed always implied in any system of law." 14 It parallels too "the supreme norms of justice which the law develops"
and which are expressed in three familiar Latin maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to
live honorably, not to injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the
Constitution. But every person exercising it is, as the Civil Code stresses, obliged "to act with justice, give everyone his due, and
observe honesty and good faith." The constitutional right of freedom of expression may not be availed of to broadcast lies or
half-truths — this would not be "to observe honesty and good faith;" it may not be used to insult others; destroy their name or
reputation or bring them into disrepute. — this would not be "to act with justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid down in "The
Philippine Journalist's Code of Ethics." The Code was published in the issue of February 11, 1993 of the Manila Standard, for
which Jurado writes, as part of the paper's "Anniversary Supplement." The first paragraph of the Code, 16 and its corresponding
annotations, read as follows:
1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to
distort the truth by improper omission or emphasis. I recognize the duty to air the other side and the duty
to correct substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required. Relying exclusively on
the telephone or on what fellow reporters say happened at one's beat is
irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please
benefactors.He gathers all the facts, forms a hypothesis, verifies it and arrives at an
honest interpretation of what happened.
 3. The duty to air the other side means that the journalist must contact the person or
persons against whom accusations are lodged. A court proceeding provides for this
balance by presenting the prosecution and then the defense. A news story or
editorial column that fails to present the other side is like a court that does not hear
the side of the defense.
4. Correcting substantive errors is the mark of mature newspapers like the New
York Times, the International Herald Tribune, and some of Manila's papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to
private reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms
of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from
private persons. 17 Nevertheless, persons who seek or accept from appointment to the Judiciary cannot reasonably be regarded as
having thereby forfeited any right whatsoever to private honor and reputation. For so to rule will be simply, in the generality of
cases, to discourage all save those who feel no need to maintain their self-respect as a human being in society, from becoming
judges, with obviously grievous consequences for the quality of our judges and the quality of the justice that they will dispense.
Thus, the protection of the right of individual persons to private reputations is also a matter of public interest and must be
reckoned with as a factor in identifying and laying down the norms concerning the exercise of press freedom and free speech.
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other
public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of
adjustment or accommodation between these two legitimate interest is precisely found in the norm which requires those who,
invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to
exercise bona fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist
guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by
publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm
represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration
of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines. 17a
6. Analysis of Jurado Columns
a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 — "that six justices, their spouses, children and grandchildren (a
total of 36 persons) spent a vacation in Hong Kong some time last year — and that luxurious hotel accommodations and all their
other expenses were paid by a public utility firm and that the trip reportedly was arranged by the travel agency patronized by
this public utility firm," supra is — in the context of the facts under which it was made — easily and quickly perceived as a
transparent accusation that the PLDT had bribed or "rewarded" six (6) justices for their votes in its favor in the case of
"Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only
paying all their expenses — i.e., hotel accommodations and all other expenses for the trip — but also by having one of its own
travel agencies arrange for such a trip.
As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its
responsible officers, Mr. Vicente Samson, as well as by the heads of the two (2) travel agencies "patronized by it," Ermin Garcia,
Jr. and Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing
that it had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if
unable to do either of these things, to offer to atone for the harm caused.
But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner
whatever the emphatic declaration of PLDT Vice-President Samson that —
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the
spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice
Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils.,
Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that
Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of
those who talked to me and the other officers of the PLDT after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the
Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that
any of the justices or their families have made the trip referred to in the Jurado column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible
officer of PLDT about the matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any person or entity in
connection with any such alleged trip of the Justices and their families to Hongkong, much less paid
anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court
to ascertain the veracity of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the affidavits
of the heads of the two travel agencies regularly patronized by it, were just assertions of the affiants' belief and opinion; and that
he (Jurado) would not comment on them except to say that while they are entitled to their beliefs and opinions, these were
binding on them only. This is upon its face evasion of duty of the most cavalier kind; sophistry of the most arrant sort. What is
made plain is that Jurado is in truth unable to challenge any of the averments in the affidavits of PLDT and its travel agencies, or
otherwise substantiate his accusation, and that his is a mere resort to semantics to justify the unjustifiable. What is made plain is
that his accusation is false, and possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to "present the other side" is equally reprehensible, being what in law
amounts to a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the "in-
house counsel of Equitable Banking Corporation since 1958") as to project a completely false depiction of it. His description of
that affair (in the Manila Standard issues of January 12 and 28, 1993) as having been hosted by the Equitable Bank "at its
penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the rhetorical question about how such
fraternization affects the chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the food having
been prepared by his wife in his house, and served by his house help and waiters privately hired by him; that he had invited many
persons including friends of long standing, among them justices of the Supreme Court and the Court of Appeals; and that the
party had been held in the Officers' Lounge of Equitable Bank, instead of his home, as in years past, to suit the convenience of
his guests because his birthday fell on a working day, Jurado could not, or would not deign to, contradict any of those statements.
He merely stated that Veto's affidavit substantially corroborated what he had written in vital details, which is obviously far from
correct.
Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in
Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have
learned that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was gravely at fault — at
the very least for disregarding the Journalist's Code of Ethics — in failing to exertbona fide efforts to verify the accuracy of his
information.
In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered
explanation that the justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital
details and making further substantiation unnecessary, and that his report constituted fair comment on the public conduct of
public officers, obviously does not at all explain why a party given by Atty. Vetowas reported by him as one tendered
by Equitable Bank. The only conclusion that may rationally be drawn from these circumstances is that Jurado, unable to advance
any plausible reason for the conspicuous divergence between what in fact transpired and what he reported, again resorts to
semantics and sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to
scrupulously report and interpret the news; on the contrary, his failure or refusal to verify such essential facts as who really
hosted and tendered the luncheon and spent for it, and his playing up of the Bank's supposed role as such host have resulted in an
improper suppression of those facts and a gross distortion of the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993
already adverted to, 19 and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to.
Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug related
cases. The "Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one."
About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the
Supreme Court Reports Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992
(January to December) and for January 1993, divulge not a single non-unanimous decision or resolution where seven (7) justices
voted "as one," nor any group of decisions or resolutions where the recorded votes would even suggest the existence of such a
cabal.
This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking
unnamed and confidential sources which he claims he considers highly credible and reliable and which would be imperiled by
elaborating on the information furnished by them. He would justify reliance on those sources on grounds of necessity, custom
and usage and claim the protection of Republic Act No. 53, as amended by Republic Act No. 1477 from forced, revelation of
confidential news sources except when demanded by the security of the state. 20
Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that a
newsman may escape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no
obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when
challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the
Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape
public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when
called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding
acceptance of his word for the reliability of those sources.
Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has already been
stated about the nature and content of those writings, it is necessary to do so briefly in order not only to stress the gravity he
makes, but also to demonstrate that his response to the call for their substantiation has been one of unvarying intransigence: an
advertance to confidential sources with whose reliability he professes satisfaction and whom fuller disclosure would supposedly
compromise.
There can be no doubt of the serious and degrading character — not only to the Court of Appeals, but also to the judiciary in
general — of his columns of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of
Appeals who had allegedly turned "fixer" for five of the Court's divisions and who, for the right price, could guarantee that a
party's lawyer could write his own decision for and in the name of the ponente; and of his column of March 24, 1993 to the effect
that anywhere from P30,000 to P50,000 could buy a temporary restraining order from a regional trial court in Manila.
The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid" for
decisions favoring drug-traffickers and other big-time criminals was based on nothing more than raw
intelligence contained is confidential police report. It does not appear that any part of that report has been
reliably confirmed.
(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this proceeding,
for his report of October 27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who,
besides earning at least P10,000 for making sure a case is raffled off to a "sympathetic" judge, can also
arrange the issuance of attachments and injunctions for a fee of one (1%) percent over and above usual
premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000.
(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to
ethics and delicadeza in nominating to the Court of Appeals a son and a nephew of its members is
completely untrue. The most cursory review of the records of the Council will show that since its
organization in 1987, there has not been a single instance of any son or nephew of a member of the
Council being nominated to the Court of Appeals during said member's incumbency; and in this
connection, he mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of
Justice (and then Member of the Judicial and Bar Council) Lorenzo Relova when the truth, which he
subsequently learned and admitted, was that the person referred to was Judge Joselito de la Rosa, the son-
in-law, not the nephew, of Justice Relova. Had he bothered to make any further verification, he would
have learned that at all sessions of the Council where the nomination of Judge Joselito de la Rosa was
considered, Justice Relova not only declined to take part in the deliberations, but actually left the
conference room; and he would also have learned that Judge Rosalio de la Rosa had never been nominated
— indeed, to this date, he has not been nominated to the Court of Appeals.
(d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made
nominations to the Court of Appeals on considerations other than of merit or fitness, through the
manipulations of the Council's Secretary, Atty. Daniel Martinez; or because the nominee happens to be a
relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as Judge Rosalio de
la Rosa) or of the Supreme Court (he could name none so situated); or has powerful political sponsor
(referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the
truth of these statements is precluded, not only by the familiar and established presumption of regularity in
the performance of official functions, but also, and even more conclusively by the records of the Judicial
and Bar Council itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk of Court of the
Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr., for membership in the
Appellate Tribunal;
(e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of Appeals
of some worthy individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino
(who was closely identified with former Senate President Salonga) had been blocked because they had
"incurred the ire of the powers that be," the truth, which could very easily have been verified, being that a
pending administrative case against Judge Asuncion had stood in the way of his nomination, and since Mr.
Victorino had been sponsored or recommended by then Senate President Salonga himself, the fact that he
 was not nominated can hardly be attributed to the hostility or opposition of persons in positions of power . . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of
or influence. justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in
any manner with a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino Lozano and
Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente
(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive
Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary for its own protection against
Judge Rosalio de la Rosa of the Manila Regional Trial Court as:
improper interference with the due administration of justice," "(i)t is not dependent upon the complaint of
any of the parties litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v.
(1) having been nominated to the Court of Appeals by the Judicial and Bar Council Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of
chiefly, if not only, by reason of being the nephew of Justice Relova and the cousin Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630
of Chief Justice Narvasa, the truth, as already pointed out, being that [1946]).
Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals,
the nominee having been JudgeJoselito de la Rosa, the son-in-law (not nephew) of
Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable
Justice Relova; and
array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute,
even when made after the trial stage or after the end of the proceedings. The original doctrine laid down in People vs.
(2) having discarded the rule that cases seeking provisional remedies should be Alarcon 24 — that there is no contempt if there is no pending case — has been abandoned in subsequent rulings of this Court
raffled off to the judges (column of January 28, 1993) and adopted a system of which have since adopted the Moran dissent therein, 25 viz.:
farming out applications for temporary restraining orders, etc., among all the
branches of the court; here again, Jurado is shown to have written without thinking,
Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A
and made statements without verifying the accuracy of his information or seeking
publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a
the views of the subject of his pejorative statements; the merest inquiry would have
pending suit or proceeding, constitutes criminal contempt which is summarily punishable by courts. This
revealed to him that while Circular No. 7 dated September 23, 1974 requires that no
is the rule announced in the cases relied upon by the majority. A publication which tends to degrade the
case may be assigned in multi-sala courts without raffle (for purposes of disposition
courts and to destroy public confidence in them or that which tends to bring them in any way into
on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par.
disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of
IV), 21 empowers Executive Judges to act on all applications for provisional
the majority, what is sought, in the first kind of contempt, to be shielded against the influence of
remedies (attachments, injunctions, or temporary restraining orders, receiverships,
newspaper comments, is the all-important duty of the courts to administer justice in the decision of a
etc.), or on interlocutory matters before raffle, in order to "balance the workload
pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the
among courts and judges, (Sec. l, par. 2, id.), and exercise such other powers and
courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in
prerogatives as may in his judgment be necessary or incidental to the performance
them. In the first, there is no contempt where there is no action pending, as there is no decision which
of his functions as a Court Administrator" (Sec. 7, par. 1, id.) — these provisions
might in any be influenced by the newspaper publication. In the second, the contempt exists, with or
being broad enough, not only to authorize unilateral action by the Executive Judge
without a pending case, as what is sought to be protected is the court itself and its dignity. (12 Am. Jur. pp.
himself on provisional remedies and interlocutory matters even prior to raffle of the
416-417.) Courts would lose their utility if public confidence in them is destroyed.
main case, but also to delegate the authority to act thereon to other judges.

The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct contempt,
Jurado does not explain why: (1) he made no effort to verify the state of the rules on
there being no pending case or proceeding out of which a charge of direct contempt against him may arise; this, even without
the matter; (2) he precipitately assumed that the views of Judge Teresita Dy-Liaco
regard to the fact that the statements made by him about sojourn in Hongkong of six Justices of the Supreme Court were clearly
Flores, whose complaint on the subject he claims he merely summarized, were
in relation to a case involving two (2) public utility companies, then pending in this Court. 26
necessarily correct and the acts of Judge de la Rosa necessarily wrong or improper;
and (3) he did not try to get Judge de la Rosa's side at all.
His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as
false in no uncertain terms by the sworn statement and letter of Vice-President Vicente R. Samson of the Philippine Long
Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their
Distance Telephone Company which:
objective truth; the abdication of the journalist's duty to report and interpret the news with scrupulous fairness; and
the breach of the law's injunction that a person act with justice, give everyone his due and observe honesty and good
faith both in the exercise of his rights and in the performance of his duties. (a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel agency,
or with the two travel agencies it patronized or retained, or paid anything, on account of such alleged trip;
7. Jurado's Proffered Excuses
and Defenses (b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . . (had)
made the trip referred to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor anyone in his
behalf has ever spoken to . . . (said Mr. Samson) or any other responsible officer of PLDT about the matter
The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously
. . .; and
unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set
forth in this opinion. 22
(c) beseech the Court to "take such action (on the matter) as may be appropriate.
Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar
principle reiterated inter alia in Zaldivar v. Gonzales: 23 As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado's
allegations about it; and
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him (which a. Apparent Misapprehension
Jurado reported as one given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in of Antecedents and Issue
specified columns of his. Jurado was also furnished copies of the affidavits later submitted by the two travel agencies mentioned
in Samson's statement, and was required to comment thereon.
Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar
but also the basic issues involved.
It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and
that action would be taken thereon against him as "may be appropriate." That that was in fact how he understood it is evident
The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad HocCommittee in
from his submitted defenses, denying or negativing liability for contempt, direct indirect. Indeed, as journalist of no little
response to two (2) letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February
experience and a lawyer to boot, he cannot credibly claim an inability to understand the nature and import of the present
16, 1993 and to require respondent Jurado to file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4
proceedings.
of this opinion, supra, the direct cause of these proceedings was not Jurado's refusal to appear and give evidence before the Ad
Hoc Committee. The direct cause was the letters of PLDT and Atty. William Veto, supported by affidavits, denouncing certain
Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a of his stories as false, 28 with the formerpraying that the Court take such action as may be appropriate. And it was precisely "the
journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated matter dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter
differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in considered and acted upon as an official Court proceeding;" this, by Resolution dated February 16, 1993; the Court also
the judiciary to the Ad Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to requiring, in the same Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit
answer for utterances offensive to its dignity, honor or reputation which tend to put it in disrepute, obstruct the administration of of Atty. William Veto to Atty. Emil Jurado . . .," and that Jurado should comment thereon "as well as (on) the allegations made
justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not by him in his columns, herein specified" — because of explicit claims, and indications of the falsity or, inaccuracy thereof.
been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn
statements branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming
There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the
responsibility for their publication.
right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations," and (2) their right
"not to reveal confidential sources of information under R.A. No. 53, as amended" — which are not really involved here — in
Jurado would have the Court clarify in what capacity — whether a journalist, or as a member of the bar — he has been cited in respect of which it is theorized that the majority opinion will have an inhibiting effect on newsmen's confidential sources of
these proceeding. Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account information, and thereby abridges the freedom of the press.
as a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions
(1) No Summons or Subpoena
as journalist who has misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of
Ever Issued to Jurado
public obdium and opprobrium, detriment and prejudice of the administration of justice. That he is at the same time a member of
the bar has nothing to do with the setting in of those sanctions, although it may aggravate liability. At any rate, what was said
about the matter in that earlier case is equally cogent here: The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance of any such
or similar processes, or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who
gave evidence before the Committee, Jurado was merely invited to appear before it to give information in aid of its assigned task
Respondent expresses perplexity at being called to account for the publications in question in his capacity
of ascertaining the truth concerning persistent rumors and reports about corruption in the judiciary. When he declined to accept
as a member of the bar, not as a journalist. The distinction is meaningless, since as the matter stands, he
the invitations, the Ad Hoc Committee took no action save to inform the Court thereof; and the Court itself also took no action.
has failed to justify his actuations in either capacity, and there is no question of the Court's authority to call
There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear thereat a "chilling effect" on the
him to task either as a newsman or as a lawyer. What respondent proposes is that in considering his
by and large "hard-boiled" and self-assured members of the media fraternity. If at all, the patience and forbearance of the Court,
actions, the Court judge them only as those of a member of the press and disregard the fact that he is also a
despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part
lawyer. But his actions cannot be put into such neat compartments. In the natural order of things, a
bordering on defiant insolence.
person's acts are determined by, and reflect, the sum total of his knowledge, training and experience. In the
case of respondent in particular the Court will take judicial notice of the frequent appearance in his regular
columns of comments and observations utilizing legal language and argument, bearing witness to the fact (2) No Blanket Excuse Under RA 53
that in pursuing his craft as a journalist he calls upon his knowledge as a lawyer to help inform and From Responding to Subpoena
influence his readers and enhance his credibility. Even absent this circumstance, respondent cannot
honestly assert that in exercising his profession as journalist he does not somehow, consciously or
Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to and served
unconsciously, draw upon his legal knowledge and training. It is thus not realistic, nor perhaps even
possible, to come to fair, informed and intelligent judgment of respondent's actuations by divorcing from on Jurado, his unexplained failure to obey the same would prima facie constitute constructive contempt under Section 3, Rule 71
consideration the fact that he is a lawyer as well as a newspaperman, even supposing, which is not the case of the Rules of Court. It should be obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare
plea that under R.A. No 53, he may not be compelled to disclose the source of his information. For until he knows what
— that he may thereby be found without accountability in this matter.
questions will be put to him as witness — for which his presence has been compelled — the relevance of R.A. No. 53 cannot be
ascertained. His duty is clear. He must obey the subpoena. He must appear at the appointed place, date and hour, ready to answer
To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions questions, and he may invoke the protection of the statute only at the appropriate time.
be judged solely as those of a newspaperman unburdened by the duties and responsibilities peculiar to the
law profession of which he is also a member.
b. The Actual Issue

8. The Dissents
The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and
the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado's out in the opening sentence of this opinion, essentially concerns "(l)iability for published statements demonstrably false or
conduct of any taint of contempt must now be briefly addressed. misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give
testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise
honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the
punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary — stories that he made no
effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate.
c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential;
that he cannot be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such
revelation. But it does hold that he cannot invoke such right as a shield against liability for printing stories that are untrue and
derogatory of the courts, or others. The ruling, in other words, is that when called to account for publications denounced as
inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness or accuracy even if in the process he
disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event, however, he
must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is
unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose
sources is "without prejudice to . . . liability under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the
publication of any news report or information which was "related in confidence" to the journalist is not actionable; such
circumstance (of confidentiality) does not purge, the publication of its character as defamatory, if indeed it be such, and
actionable on that ground. All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any
news report published by him which was revealed to him in confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a
bribe of P1M each for their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to
account for such statements, absolve himself by claiming immunity under R.A. 53, or invoking press freedom.
d. A Word about "Group Libel"
There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous
newsmen who can malign any number of anonymous members of a common profession, calling or persuasion, thereby putting
an entire institution — like the judiciary in this case — in peril of public contumely and mistrust without serious risk of being
sued for defamation. The preceding discussions have revealed Jurado's predilection for, if not his normal practice of, refusing to
specifically identify or render identifiable the persons he maligns. Thus, he speaks of the "Magnificent Seven," by merely
referring to undisclosed regional trial court judges in Makati; the "Magnificent Seven" in the Supreme Court, as some
undesignated justices who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and three other
cities. He adverts to an anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed
justices of this Court who reportedly spent a prepaid vacation in Hong Kong with their families. This resort to generalities and
ambiguities is an old and familiar but reprehensible expedient of newsmongers to avoid criminal sanctions since the American
doctrine of group libel is of restricted application in this jurisdiction. For want of a definitely identified or satisfactorily
identifiable victim, there is generally no actionable libel, but such a craven publication inevitably succeeds in putting all the
members of the judiciary thus all together referred to under a cloud of suspicion. A veteran journalist and lawyer of long
standing that he is, Jurado could not have been unaware of the foregoing realities and consequences.
e. Substantiation of News Report
Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would
necessarily negate or dilute his right to refuse disclosure of its source. The argument will not stand scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity
whatsoever.
If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first,
the journalist's duty is clear: ascertain, if not obtain, the evidence by which the information may be verifiedbefore publishing the
same; and if thereafter called to account therefor, present such evidence and in the process afford the party adversely affected
thereby opportunity to dispute the information or show it to be false.
If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious reasons. It
would be unfair to the subject of the report, who would be without means of refuting the imputations against him. And it would
afford an unscrupulous journalist a ready device by which to smear third parties without the obligation to substantiate his
imputations by merely claiming that the information had been given to him "in confidence".
It is suggested that there is another face to the privileged character of a journalist's source of information than merely the
protection of the journalist, and that it is intended to protect also the source itself. What clearly is implied is that journalist may
not reveal his source without the latter's clearance or consent. This totally overlooks the fact that the object of a derogatory
publication has at least an equal right to know the source thereof and, if indeed traduced, to the opportunity of obtaining just
satisfaction from the traducer.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very
pertinent, question of whether a journalist may put in print unverified information derogatory of the courts and judges and yet
remain immune from liability for contempt for refusing, when called upon, to demonstrate their truth on the ground of press
freedom or by simply claiming that he need not do so since (or if) it would compel him to disclose the identity of his source or
sources.
The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of information
transcends, and is greater than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or exercise
bona fide efforts to verify, the information he is given or obtain the side of the party adversely affected before he publishes the
same.
True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be overemphasized. But
it is debatable if that role is well and truly filled by a press let loose to print what it will, without reasonable restraints designed to
assure the truth and accuracy of what is published. The value of information to a free society is in direct proportion to the truth it
contains. That value reduces to little or nothing when it is no longer possible for the public to distinguish between truth and
falsehood in news reports, and the courts are denied the mechanisms by which to make reasonably sure that only the truth
reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right
to free speech enshrined in the Constitution. Even the most liberal view of free speech has never countenanced the publication of
falsehoods, specially the persistent and unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that
"(u)nder the First Amendment there is no such thing as a false idea," and that "(h)owever pernicious an opinion may seem, we
depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (citing a passage from
the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that "there is no constitutional value
in false statements of fact," and "the erroneous statement of fact is not worthy of constitutional protection (although) . . .
nevertheless inevitable in free debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's
interest in "unhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed
2d 686, 95 ALR2d 1412. They belong to that category of utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional question.
Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that
the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. . . . (T)he knowingly false
statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in fulfillment of a
"legal, moral, or social duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled that the guaranty of free
speech cannot be considered as according protection to the disclosure of lies, gossip or rumor, viz.:
time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a
judge from civil liability in the exercise of his judicial functions, most fundamental of which is the policy
to confine his time exclusively to the discharge of his public duties, applies here with equal, if not
superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex parte McLeod,
120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194). . . .

. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or
disloyal officers and employees thereof, where there is reasonable ground to believe that they fall under
this category. He had no legal right, much less duty, to gossip, or foster the circulation of rumors, or jump
at conclusions and more so if they are gratuitous or groundless. Otherwise, the freedom of speech, which
is guaranteed with a view to strengthening our democratic institutions and promoting the general welfare,
would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private,
selfish and vindictive ends, thereby hampering the operation of the Government with. administrative
investigations of charges preferred without any color or appearance of truth and with no other probable
effect than the harassment of the officer or employee concerned, to the detriment of public service and
public order.
Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual
accuracy and the injury that he might cause to the name and reputation of those of whom he wrote. They constitute contempt of
court, directly tending as they do to degrade or abase the administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable, decent and responsible journalists who live by their Code or
the "Golden Rule" and who strive at all times to maintain the prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant stance. "This
is a fight I will not run from," he wrote in his column of March 21, 1993; and again, "I will not run away from a good fight," in
his column of March 23, 1993. Such an attitude discourages leniency, and leaves no choice save the application of sanctions
appropriate to the offense.

b. No "Chilling Effect" WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with Section 6,
Rule 71 of the Rules of Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).
The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media
professionals, seems largely unfounded and should be inconsequential to the greater number of journalists in this country who, IT IS SO ORDERED.
by and large, out of considerations of truth, accuracy, and fair play, have commendably refrained from ventilating what would
otherwise be "sensational" or "high-visibility" stories. In merely seeking to infuse and perpetuate the same attitude and sense of
Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and Francisco, JJ., concur.
responsibility in all journalists, i.e., that there is a need to check out the truth and correctness of information before publishing it,
or that, on the other hand, recklessness and crass sensationalism should be eschewed, this decision, surely, cannot have such
"chilling effect," and no apprehension that it would deter the determination of truth or the public exposure of wrong can Vitug and Kapunan, JJ., took no part.
reasonably be entertained.

The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only with
extremist liberalism. If it has done nothing else, this case has made clear the compelling necessity of the guidelines and
parameters elsewhere herein laid down. They are eminently reasonable, and no responsible journalist should have cause to
complain of difficulty in their observance.

10. Afterword

It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already been earlier
quoted, 32 and are as germane today as when they were first written more than fifty (50) years ago. 33

It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to
judicial worth, virtue and intelligence. But compelling respect to courts is one thing and denying the courts
the power to vindicate themselves when outraged is another. I know of no principle of law that authorizes
with impunity a discontended citizen to unleash, by newspaper publications, the avalanche of his wrath
and venom upon courts and judges. If he believes that a judge is corrupt and that justice has somewhere
been perverted, law and order require that he follow the processes provided by the Constitution and the
statutes by instituting the corresponding proceedings for impeachment or otherwise. . . .

xxx xxx xxx

It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This
suggestion has, however, no rational basis in principle. In the first place, the outrage is not directed to the
judge as a private individual but to the judge as such or to the court as an organ of the administration of
justice. In the second place, public interests will gravely suffer where the judge, as such, will, from time to
PHARMACEUTICAL and HEALTH G.R. NO. 173034 In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides
CARE ASSOCIATION of the that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society,
PHILIPPINES, specially parents and children, are informed of the advantages of breastfeeding.
Petitioner,
Present: On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

PUNO, C.J. However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the
QUISUMBING, present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of
YNARES-SANTIAGO, Preliminary Injunction.
SANDOVAL-GUTIERREZ, The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or
CARPIO, with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution
- versus - AUSTRIA-MARTINEZ, in promulgating the RIRR.[3]
CORONA,
CARPIO-MORALES, On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned
AZCUNA, RIRR.
TINGA, After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an
CHICO-NAZARIO, Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
GARCIA,
VELASCO, JR., The Court hereby sets the following issues:
NACHURA, and
REYES, JJ. 1. Whether or not petitioner is a real party-in-interest;
HEALTH SECRETARY
FRANCISCO T. DUQUE III; 2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
HEALTH UNDERSECRETARIES Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
DR. ETHELYN P. NIETO, 2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA, 2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the
& DR. JADE F. DEL MUNDO; and land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the
ASSISTANT SECRETARIES RIRR is in accord with the international agreements;
DR. MARIO C. VILLAVERDE,
DR. DAVID J. LOZADA, AND 2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in
DR. NEMESIO T. GAKO, Promulgated: restraint of trade; and
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
DECISION _____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002 Global Strategy on
AUSTRIA-MARTINEZ, J.: Infant and Young Child Feeding; and (3) various World Health Assembly (WHA)
Resolutions.
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing The parties filed their respective memoranda.
greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every
Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained? The petition is partly imbued with merit.
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.)
No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The On the issue of petitioner's standing
Milk Code, Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner
posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view
implement. enunciated in Executive Secretary v. Court of Appeals,[4] to wit:
The modern view is that an association has standing to complain of injuries to its members. This view
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health fuses the legal identity of an association with that of its members. An association has standing to file suit
(DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the for its workers despite its lack of direct interest if its members are affected by the action. An
questioned RIRR in their capacity as officials of said executive agency.[1] organization has standing to assert the concerns of its constituents.

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the
legislative powers granted to the president underthe Freedom Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 11[2] of the International Code of Marketing of Breastmilk Substitutes (ICMBS),
a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to
the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breastmilk substitutes.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members,
because it and its members are in every practical sense identical. x x x The respondent [association]
 is but the medium through which its individual members seek to make more effective the expression
of their voices and the redress of their grievances. [5] (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the Court ruled that an association has the
legal personality to represent its members because the results of the case will affect their vital interests. [7]
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the
association is formed to represent directly or through approved representatives the pharmaceutical and health care industry
before the Philippine Government and any of its agencies, the medical professions and the general public.[8] Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly authorized[9] to take the appropriate course of action to bring to the
attention of government agencies and the courts any grievance suffered by its members which are directly affected by the
RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss
in its duties if it fails to act on governmental action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be considered as a real
party-in-interest which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the
coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international
instruments[10] regarding infant and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the
Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be
taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the
health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy
and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.[11] The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic law. [12]
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which
provides that [n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate. Thus, treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.[13]
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of
the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the
ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not
adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of
products within the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee
(IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.[14]
In Mijares v. Ranada,[15] the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as binding result
from the combination [of] two elements: the established, widespread, and consistent practice on the
part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to
law or necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary international law which are binding on
all states,[17] i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,[18] a person's right
to life, liberty and due process,[19] and pacta sunt servanda,[20]among others. The concept of generally accepted principles of law
has also been depicted in this wise:
Some legal scholars and judges look upon certain general principles of law as a primary source of
international law because they have the character of jus rationale and are valid through all kinds of
human societies. (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certainpriniciples are part of international law because they are basic to legal
systems generally and hence part of the jus gentium. These principles, he believes, are established by a
process of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law principle provides
a just and acceptable solution. x x x [21] (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means a general and consistent practice of states followed by them
from a sense of legal obligation [opinio juris]. (Restatement) This statement contains the two basic
elements of custom: the material factor, that is, how states behave, and the psychological
or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This includes
several elements: duration, consistency, and generality of the practice of states.
 The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the generality
of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without it, practice is not
law.[22] (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system. [23]
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should
they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by
virtue of Article 57,[24] in relation to Article 63[25] of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which
determines the policies of the WHO,[26] and has the power to adopt regulations concerning advertising and labeling of biological,
pharmaceutical and similar products moving in international commerce,[27] and to make recommendations to members with
respect to any matter within the competence of the Organization.[28] The legal effect of its regulations, as opposed to
recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to
any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be
required for the adoption of such conventions or agreements, which shall come into force for each
Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the
Health Assembly of a convention or agreement, take action relative to the acceptance of such
convention or agreement. Each Member shall notify the Director-General of the action taken, and if it
does not accept such convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and
quarantine requirements and other procedures designed to prevent the international spread of disease; (b)
nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with
respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and
potency of biological, pharmaceutical and similar products moving in international commerce;
(e) advertising and labeling of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due
notice has been given of their adoption by the Health Assembly except for such Members as may notify
the Director-General of rejection or reservations within the period stated in the notice. (Emphasis
supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the same way
that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with
respect to any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member
states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they
carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest
international body in the field of health.[29] Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:
The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution,
the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution.
(Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth
World Health Assembly the text of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations made to
it by the Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement
the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby
the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,[30] specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been adopted as a
domestic law.
It is propounded that WHA Resolutions may constitute soft law or non-binding norms, principles and practices that influence
state behavior.[31]
Soft law does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.[32] It is, however, an expression of non-binding norms, principles, and practices that influence state
behavior.[33] Certain declarations and resolutions of the UN General Assembly fall under this category. [34] The most notable is the
UN Declaration of Human Rights, which this Court has enforced in various cases, specifically,Government of Hongkong Special
Administrative Region v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v. Raada[37] and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..[38]
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national
protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order to reflect and health policy and implement a national health plan within the framework of the government's general policies and plans,
respond to the changing needs and demands of its constituents. [39]Other international organizations which have resorted to soft and issue orders and regulations concerning the implementation of established health policies.
law include the International Labor Organization and the Food and Agriculture Organization (in the form of
the Codex Alimentarius).[40] It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes
provided in some WHA Resolutions has been adopted as part of the national health policy.
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian
flu outbreaks. Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May
23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as
early initiation of breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two years and
Although the IHR Resolution does not create new international law binding on WHO member states, it
beyond; (2) appropriate complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4)
provides an excellent example of the power of "soft law" in international relations. International
universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally difficult
lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms,
circumstances. Indeed, the primacy of breastfeeding for children is emphasized as a national health policy. However, nowhere
principles, and practices that influence state behavior-"soft law." WHO has during its existence
in A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion
generated many soft law norms, creating a "soft law regime" in international governance for
of breastmilk substitutes should be absolutely prohibited.
publichealth.
The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork advertising for breastmilk substitutes.
for improved international cooperation on infectious diseases. These resolutions clearly define WHO In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion
member states' normative duty to cooperate fully with other countries and with WHO in connection with of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows
infectious disease surveillance and response to outbreaks. that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally
authorized branch of government, the legislature.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the
powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, DOH through the subject RIRR.
and enhancing, international cooperation on infectious disease controls is in a country's self-interest
x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.
development of general and consistent state practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary international law on infectious disease In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:
prevention and control.[41]
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to young
In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of children or those from ages two years old and beyond:
SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004,
delegating to various departments broad powers to close down schools/establishments, conduct health surveillance and
MILK CODE RIRR
monitoring, and ban importation of poultry and agricultural products.
WHEREAS, in order to ensure that safe and adequate Section 2. Purpose These Revised Rules and Regulations are
nutrition for infants is provided, there is a need to protect and hereby promulgated to ensure the provision of safe and adequate
promote breastfeeding and to inform the public about the nutritionfor infants and young children by the promotion,
It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was proper use of breastmilk substitutes and supplements and protection and support of breastfeeding and by ensuring the
still considered not binding or enforceable, although said resolutions had great political influence. related products through adequate, consistent and objective proper use of breastmilk substitutes, breastmilksupplements and
information and appropriate regulation of the marketing and related products when these are medically indicated and only
As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being distribution of the said substitutes, supplements and related when necessary, on the basis of adequate information and
followed by states because theyconsider it obligatory to comply with such rules (opinio juris). Respondents have not presented products; through appropriate marketing and distribution.
any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or
practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states SECTION 4(e). Infant means a person falling within the age Section 5(ff). Young Child means a person from the age
with said WHA Resolutions was obligatory in nature. bracket of 0-12 months. of more than twelve (12) months up to the age of three (3) years
(36 months).
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be
deemed part of the law of the land. 2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain
instances; but the RIRR provides exclusive breastfeeding for infants from 0-6 months and declares that there is
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of no substitute nor replacement for breastmilk:
the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies
without the need of a law enacted by the legislature. MILK CODE RIRR
WHEREAS, in order to ensure that safe and adequate Section 4. Declaration of Principles The following are the
Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its
nutrition for infants is provided, there is a need to protect and underlying principles from which the revised rules and
powers and functions under the Revised Administrative Code even in the absence of a domestic law.
promote breastfeeding and to inform the public about regulations are premised upon:
the proper use of breastmilk substitutes and supplements and
related products through adequate, consistent and objective a. Exclusive breastfeeding is for infants from 0 to six (6)
information and appropriate regulation of the marketing and months.
distribution of the said substitutes, supplements and related
products;
3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion;
RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months
old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a
total effect in the promotion of products within the scope of the Code, is vague:
MILK CODE
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials,
whether written, audio or visual, for products within the scope
of this Code shall be printed, published, distributed, exhibited
and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.
b. There is no substitute or replacement forbreastmilk.
RIRR
Section 4. Declaration of Principles The following are the
underlying principles from which the revised rules and
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-shipsof infant
formula, breastmilk substitutes and other related products are
prohibited.
Section 11. Prohibition No advertising, promotions,
sponsorships, or marketing materials and
activities for breastmilksubstitutes intended for infants and
young children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give subliminal
messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related products covered within
the scope of this Code.
Section 13. Total Effect - Promotion of products within the
scope of this Code must be objective and should not equate or
make the product appear to be as good or equal tobreastmilk or
breastfeeding in the advertising concept. It must not in any case
underminebreastmilk or breastfeeding. The total effect should
not directly or indirectly suggest that buying their product
would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better
health to the baby or other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The following shall not be
included in advertising, promotional and marketing materials:
a. Texts, pictures, illustrations or information which discourage
or tend to undermine the benefits or superiority of breastfeeding
or which idealize the use of breastmilksubstitutes and milk
supplements. In this connection, no pictures of babies and
children together with their mothers, fathers, siblings,
grandparents, other relatives or caregivers (oryayas) shall be
used in any advertisements for infant formula
and breastmilk supplements;
b. The term humanized, maternalized, close to mother's milk or
similar words in describingbreastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of infant and milk
formula.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to
provide the necessary information about the
appropriate use of the products, and in such a way
as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and
easily readable and understandable message in
Pilipino or English printed on it, or on a label,
which message can not readily become separated
from it, and which shall include the following
points:
(i) the words Important Notice or their
equivalent;
(ii) a statement of the superiority of
breastfeeding;
(iii) a statement that the product shall be used
only on the advice of a health worker as to the
need for its use and the proper methods of
use; and
(iv) instructions for appropriate preparation,
and a warning against the health hazards of
inappropriate preparation.
5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally
prohibits such activity:
MILK CODE
SECTION 7. Health Care System.
(b) No facility of the health care system shall be used for the
purpose of promoting infant formula or other products within
the scope of this Code. This Code does not, however, preclude
the dissemination of information to health professionals as
provided in Section 8(b).
SECTION 8. Health Workers. -
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief
that bottle-feeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing
education of health professionals; RIRR absolutely forbids the same.
MILK CODE
Section 16. All health and nutrition claims for products within
the scope of the Code are absolutely prohibited. For this
purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child
and other like phrases shall not be allowed.
RIRR
Section 26. Content Each container/label shall contain such
message, in both Filipino and English languages, and which
message cannot be readily separated therefrom, relative the
following points:
(a) The words or phrase Important Notice or Government
Warning or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute forbreastmilk;
(d) A statement that the product shall be used only on the
advice of a health worker as to the need for its use
and the proper methods of use;
(e) Instructions for appropriate prepara-tion, and a warning
against the health hazards of inappropriate
preparation;and
(f) The health hazards of unnecessary or improper use of
infant formula and other related products including
information that powdered infant formula may
contain pathogenic microorganisms and must be
prepared and used appropriately.
RIRR
Section 22. No manufacturer, distributor, or representatives of
products covered by the Code shall be allowed to conduct or
be involved in any activity on breastfeeding promotion,
education and production of Information, Education and
Communication (IEC) materials on breastfeeding, holding of
or participating as speakers in classes or seminars for women
and children activities and to avoid the use of these venues to
market their brands or company names.
SECTION 16. All health and nutrition claims for products
within the scope of the Code are absolutely prohibited. For this
purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child
and other like phrases shall not be allowed.
RIRR
SECTION 8. Health Workers
(e) Manufacturers and distributors of products within the
scope of this Code may assist in the research, scholarships
and continuing education, of health professionals,in
accordance with the rules and regulations promulgated by the
Ministry of Health.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
SECTION 6. The General Public and Mothers.
(f) Nothing herein contained shall prevent donations from
manufacturers and distributors of products within the scope of
this Code upon request by or with the approval of the Ministry
of Health.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
Section 4. Declaration of Principles
The following are the underlying principles from which the
revised rules and regulations are premised upon:
i. Milk companies, and their representatives, should
not form part of any policymaking body or entity in
relation to the advancement ofbreasfeeding.
SECTION 22. No manufacturer, distributor, or representatives
of products covered by the Code shall be allowed to conduct or
be involved in any activity on breastfeeding promotion,
education and production of Information, Education and
Communication (IEC) materials on breastfeeding, holding of or
participating as speakers in classes or seminars for women and
children activitiesand to avoid the use of these venues to
market their brands or company names.
SECTION 32. Primary Responsibility of Health Workers -
It is the primary responsibility of the health workers to
promote, protect and support breastfeeding and appropriate
infant and young child feeding. Part of this responsibility is to
continuously update their knowledge and skills on
breastfeeding. No assistance, support, logistics or training from
milk companies shall be permitted.
RIRR
Section 51. Donations Within the Scope of This Code -
Donations of products, materials, defined and covered under
the Milk Code and these implementing rules and regulations,
shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not
Covered by this Code. -Donations of products, equipments,
and the like, not otherwise falling within the scope of this
Code or these Rules, given by milk companies and their
agents, representatives, whether in kind or in cash, may only
be coursed through the Inter Agency Committee (IAC), which
shall determine whether such donation be accepted or
otherwise.
RIRR
Section 46. Administrative Sanctions. The following
administrative sanctions shall be imposed upon any person,
juridical or natural, found to have violated the provisions of the
Code and its implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a minimum of Ten
Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and
extent of the violation, including the recall of the
offending product;
c) 3rd violation Administrative Fine of a minimum of Sixty
Thousand (P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos, depending on the
gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and
suspension of the Certificate of Product Registration
(CPR);
d) 4th violation Administrative Fine of a minimum of Two
Hundred Thousand (P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos, depending on the
gravity and extent of the violation; and in addition
thereto, the recall of the product, revocation of the
CPR, suspension of the License to Operate (LTO) for
one year;
e) 5th and succeeding repeated violations Administrative Fine
of One Million (P1,000,000.00) Pesos, the recall of
the offending product, cancellation of the CPR,
revocation of the License to Operate (LTO) of the
company concerned, including the blacklisting of the
company to be furnished the Department of Budget
and Management (DBM) and the Department of
Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred
(P2,500.00) Pesos per day shall be made for every
day the violation continues after having received the
order from the IAC or other such appropriate body,
notifying and penalizing the company for the
infraction.
For purposes of determining whether or not there is repeated
violation, each product violation belonging or owned by a
company, including those of their subsidiaries, are deemed to
be violations of the concerned milk company and shall not be
based on the specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months
old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the
following products: breastmilk substitutes, including infant formula; other milk products, foods and
beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the
public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product
categories.
Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to satisfy the normal nutritional
requirements of infants up to between four to six months of age, and adapted to their physiological characteristics; while under
Section 4(b), bottle-fed complementary food refers to any food, whether manufactured or locally prepared, suitable as a
complement to breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional requirements of
the infant. An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of this
group of infants or children aged 0-12 months that is sought to be promoted and protected by the Milk Code.
 But there is another target group. Breastmilk substitute is defined under Section 4(a) as any food being marketed or
otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose. This section
conspicuously lacks reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be intended for
young children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to
protect and promote the nourishment ofchildren more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it
can be subject to regulation pursuant to said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 2 [42] and 5(ff)[43] of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held
in De Luna v. Pascual,[44] [t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated
expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to
produce a harmonious whole.
Section 7 of the RIRR provides that when medically indicated and only when necessary, the use
of breastmilk substitutes is proper if based on complete and updated information. Section 8 of the RIRR also states that
information and educational materials should include information on the proper use of infant formula when the use thereof is
needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes
may be proper.
3. The Court shall ascertain the merits of allegations 3[45] and 4[46] together as they are interlinked with each
other.
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is
important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the
1987 Administrative Code,[47] and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise
of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss
it..[48] However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes
and supplements, is a relatively new area for regulation by the DOH. [49]
As early as the 1917 Revised Administrative Code of the Philippine Islands,[50] health information was already within
the ambit of the regulatory powers of the predecessor of DOH. [51] Section 938 thereof charged it with the duty to protect the
health of the people, and vested it with such powers as (g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of infants and the methods of preventing and combating
dangerous communicable diseases.
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced
under Section 15, Article II of the 1987 Constitution, which is to protect and promote the right to health of the people and instill
health consciousness among them.[52] To that end, it was granted under Section 3 of the Administrative Code the power to
(6) propagate health information and educate the population on important health, medical and environmental matters which
have health implications.[53]
When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and
objective information on breastfeeding and use of breastmilk substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have
the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper
for the implementation of this Code and the accomplishment of its
purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for
or incidental to the attainment of the purposes and objectives of this
Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding,
for use by families and those involved in the field of infant nutrition.This responsibility shall cover the
planning, provision, design and dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--
vis breastmilk substitutes, supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority of breastfeeding; (2)
maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the
decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications of its use;
the health hazards of inappropriate foods or feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use
of breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such
information shall not imply or create a belief that bottlefeeding is equivalent or superior
to breastfeeding. It shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate
use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis supplied)
 The DOH is also authorized to control the purpose of the information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code[54] to ensure that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in the health care system is restricted to scientific and factual matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the power to
absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over information given
to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution
of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and
adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper
use of breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of
adequate information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related
to breastmilk substitutes, including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided
on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any
picture or text which may idealize the use of breastmilk substitutes and should include information on the health hazards of
unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but such
information should be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would discourage
breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and
advertising.
[55] [56]
Sections 13 on total effect and 26 of Rule VII of the RIRR contain some labeling requirements, specifically: a)
that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula
may contain pathogenic microorganisms and must be prepared and used appropriately. Section 16[57] of the RIRR prohibits all
health and nutrition claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual
abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such
information shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5.[58] (Emphasis supplied)
and Section 10(d)[59] which bars the use on containers and labels of the terms humanized, maternalized, or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority
of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd
situation in which milk companies and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite
message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that
all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the government
control over planning, provision, design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for
breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and
promotion of breastfeeding as embodied in Section 2[60] of the Milk Code.
Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which
reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: x x x (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof. The buyers
of breastmilk substitutes are mothers of infants, andSection 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related products when these are prepared and used
inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as
yet no technology that allows production of powdered infant formula that eliminates all forms of contamination. [62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards
including the possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related
products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed
by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products
within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such
materials are duly authorized and approved by an inter-agency committee created herein pursuant to the
applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
members is hereby created:
Minister of Health -------------------------------------------- Chairman
Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member
The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether
written, audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing,
publication, distribution, exhibition and broadcast of, all advertising promotion or other
marketing materials, whether written, audio or visual, on products within the scope of this
Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and
functions as well as the performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities
for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give subliminal messages or impressions that
undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with
the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related
products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also
imposed absolute prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by
IAC of all advertising, marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments
on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an
absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO
2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for
breast milk substitutes intended for infants and young children up to 24 months shall be allowed because
this is the standard they tend to convey or give subliminal messages or impression undermine
that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12,
provides for the inter agency committee that is empowered to process and evaluate all the advertising and
promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-
Agency Committee that processes and evaluates because there may be some information dissemination
that are straight forward information dissemination. What the AO 2006 is trying to prevent is any material
that will undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules
and Regulations regarding the Advertising, Promotion and Marketing ofBreastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-
Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising
of breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes
intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some
advertising and promotional materials, subject to the standards that we have stated earlier, which are- they
should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has
that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute
regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your Honor.[63]
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of
advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to
Section 6 thereof which in turn provides that the rules and regulations must be pursuant to the applicable standards provided for
in this Code. Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and
for easy reference, are quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended to reach pregnant women and mothers of infants, shall include
clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the health hazards of inappropriate
foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use
of infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use ofbreastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters and
such information shall not imply or create a belief that bottle feeding is equivalent or superior
to breastfeeding. It shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate
use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from it,
and which shall include the following points:
(i) the words Important Notice or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker
as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions
of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5,
8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:
SECTION 13. Total Effect - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal tobreastmilk or breastfeeding in the
advertising concept. It must not in any case undermine breastmilk or breastfeeding. The total effect should
not directly or indirectly suggest that buying their product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that
single provision, the DOH exercises control over the information content of advertising, promotional and marketing materials
on breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which
the IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: public interest, justice
and equity, public convenience and welfare, and simplicity, economy and welfare. [65]

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is
no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)[66] of the Milk Code, in relation to Section
8(b)[67] of the same Code, allows dissemination of information to health professionals but such information is restricted to
scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health
professionals on scientific and factual matters.What it prohibits is the involvement of the manufacturer and distributor of the
products covered by the Code in activities for the promotion, education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that are intended for women and children. Said provision cannot be
construed to encompass even the dissemination of information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)[68] of the Milk Code permits milk manufacturers and distributors to extend
assistance in research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely
forbid the same. Petitioner also assails Section 4(i)[69] of the RIRR prohibiting milk manufacturers' and distributors' participation
in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body
or entity in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk
Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to decide which
entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk
companies participation in any policymaking body in relation to the advancement of breastfeeding is in accord with the Milk
Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 22[70] of the RIRR does not pertain to
research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance
for research or continuing education to health professionals; hence, petitioner's argument against this particular provision must
be struck down.
It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said sections of the RIRR provide
that research assistance for health workers and researchers may be allowed upon approval of an ethics committee, and
with certain disclosure requirements imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational assistance may be
given by milk companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the
RIRR imposing limitations on the kind of research done or extent of assistance given by milk companies are completely in
accord with the Milk Code.
Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from giving assistance, support,
logistics or training to health workers. This provision is within the prerogative given to the DOH under Section 8(e)[74] of the
Milk Code, which provides that manufacturers and distributors of breastmilksubstitutes may assist in researches, scholarships
and the continuing education, of health professionals in accordance with the rules and regulations promulgated by the Ministry of
Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of
the Milk Code provides that donationsmay be made by manufacturers and distributors of breastmilk substitutes upon the
request or with the approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely
to the discretion of the DOH whether to request or accept such donations. The DOH then appropriately exercised its discretion
through Section 51[75] of the RIRR which sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilksubstitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk
companies not covered by the Code should be coursed through the IAC which shall determine whether such donation should be
accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk
Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.[76] is misplaced. The glaring difference
in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration
(CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil
Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order or decision of the CAA and to
determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the
CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the Court upheld the Department
of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the
commission of prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly
authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or
impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for
those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section
46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code
authorizes the DOH to cause the prosecution of the violators of this Code and other pertinent laws on products covered by this
Code. Section 13 of the Milk Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year
imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand
Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the
Board of Directors, the president, general manager, or the partners and/or the persons directly
responsibletherefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker,
distributor, manufacturer, or marketing firm or personnel for the practice of their profession or occupation,
or for the pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or
revoked in the event of repeated violations of this Code, or of the rules and regulations issued pursuant to
this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof
inconsistent with these revised rules and implementing regulations are hereby repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within theDOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and
regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and
subject to the doctrine of non-delegability and separability of powers.[78] Such express grant of rule-
making power necessarily includes the power to amend, revise, alter, or repeal the same.[79] This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to implement the provisions of a
law,[80] in order to make it more responsive to the times.Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the
Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.
Notably, the definition in the RIRR merely merged together under the term milk company the entities defined separately under
the Milk Code as distributor and manufacturer. The RIRR also enumerated in Section 5(w) the products manufactured or
distributed by an entity that would qualify it as a milk company, whereas in the Milk Code, what is used is the phrase products
within the scope of this Code. Those are the only differences between the definitions given in the Milk Code and the definition
as re-stated in the RIRR.

Lastly, petitioner makes a catch-all allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and
oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to provide the public with a
comprehensible basis to determine whether or not they have committed a violation.[81] (Emphasis supplied)
Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and 52[89] as the provisions that suppress the trade
of milk and, thus, violate the due process clause of the Constitution.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no
harm in the RIRR providing for just one term to encompass both entities. The definition of milk company in the RIRR and the
definitions of distributor and manufacturer provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of milk company provided in the RIRR would bring about any change in the
treatment or regulation of distributors and manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent
of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest
of the RIRR do not constitute illegal restraint of trade nor are theyviolative of the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012
good. Public interest must be upheld over business interests.[90] In Pest Management Association of the Philippines v. Fertilizer dated May 12, 2006 are declared NULLand VOID for being ultra vires. The Department of Health and respondents
and Pesticide Authority,[91] it was held thus: are PROHIBITED from implementing said provisions.
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut
Authority, despite the fact that our present Constitution enshrines free enterprise as a policy, it The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative
nonetheless reserves to the government the power to intervene whenever necessary to promote the Order No. 2006-0012 is concerned.
general welfare. There can be no question that the unregulated use or proliferation of pesticides would SO ORDERED.
be hazardous to our environment. Thus, in the aforecited case, the Court declared that free enterprise
does not call for removal of protective regulations. x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of
trade. [Emphasis and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section
4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training
(Section 32); and the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner
has not established that the proscribed activities are indispensable to the trade of breastmilksubstitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides
for the definition of the term milk company, to wit:

SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor of infant formula,
follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other
description of such nature, including their representatives who promote or otherwise advance their
commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) Distributor means a person, corporation or any other entity in the public or private sector
engaged in the business (whether directly or indirectly) of marketing at the wholesale or
retail level a product within the scope of this Code. A primary distributor is a
manufacturer's sales agent, representative, national distributor or broker.

xxxx

(j) Manufacturer means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent
or and entity controlled by or under contract with it) of manufacturing a products within
the scope of this Code.

G.R. No. L-69500 July 22, 1985
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q.
SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF
REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of
the constitutional right to freedom of expression 1 of an artist—and for that matter a man of letters too—as the basis for a ruling
on the scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised.
The dispute between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For
Adults Only." There is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in
view of the objections raised. Thus the relevance of this constitutional command: "Arts and letters shall be under the patronage
of the State. 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered
as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and
Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named
respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under
the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration
was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12,
1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the
Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling
of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the
Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this
petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985,
as one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its
questioned resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without
any deletion or cut [thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The
modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the
validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in
the film. 7 The prayer was for the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults
Only." For petitioners, such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic
expression. The film is an integral whole and all its portions, including those to which the Board now offers belated objection,
are essential for the integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the
Board as basis for its classification. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein
asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory provisions for review
of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the
standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For
respondents, the question of the sufficiency of the standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide
respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling
standard to warrant the classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged
invasion of the right to the freedom of artistic and literary expression embraced in the free speech and free press guarantees of
the Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse.
Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural
traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is the "importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as well as to inform. 10 There is no clear dividing line between
what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right
to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the
opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there
be a 'clear and present danger of a substantive evil that [the State] has a right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are
emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is
not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this
litigation, the emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our
jurisdiction. As early as 1909, in the case of United States v. Sedano,14 a prosecution for libel, the Supreme Court of the
Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous
license. There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission
on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile
units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression
amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation,
the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections,
determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults
only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to
exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16
3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a
substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be
no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there
must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be
only probable. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that
where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned —
included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only
under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other
legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter
what medium of expression he may use, should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United
States 19 speaking of the free speech and press guarantee of the United States Constitution: "All Ideas having even the slightest
redeeming social importance — unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion —
have the full protection of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment
is the rejection of obscenity as utterly without redeeming social importance. 20 Such a view commends itself for approval.
5. There is, however, some difficulty in determining what is obscene. 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 [1868] LR 3 QB 360. Some American courts adopted this standard but later Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 it cannot be denied
decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.
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
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari
must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard
solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification
provides safeguards adequate to withstand the charge of constitutional infirmity. 21
of Kapit sa Patalim as "For-Adults-Only."

6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the
freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in
1918. While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in
determining what constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of
expression is allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v.
Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine.

7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are
not synonymous. 24 Further: "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. 25

8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino
cultural values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and
obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That
is a constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of
autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what
for him is a true representation. It is not to be forgotten that art and belleslettresdeal primarily with imagination, not so much
with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product
of his talent rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest
scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a
man's personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in
Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated
in a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental,
and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of two
constructions' one of which will maintain and the other destroy it, the courts will always adopt the former. 31 As thus construed,
there can be no valid objection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains.

9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That
there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners
before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what
constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was an abuse of discretion.
Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not
lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: "The adult
classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the
young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some
women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women
kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle
between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these
scenes." 32 Further: "Respondents further stated in its answer that petitioner company has an option to have the film reclassified
to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film." 33 Petitioners,
however, refused the "For Adults Only" classification and instead, as noted at the outset, filed this suit for certiorari.

10. 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 will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge
G.R. No. 80806 October 5, 1989 preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1
and 3, 1983, the materials confiscated belonged to the magazine stand owners and peddlers who
voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided.
LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents. The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

William C. Arceno for petitioner. On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary
injunction, raising the issue as to "whether or not the defendants and/or their agents can without a court
order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazine
Casibang, Perello and De Dios for private respondent.
is obscene or not".

SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of
Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He
invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its prohibition
against deprivation of property without due process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau,
Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from
dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and
other reading materials believed to be obscene, pornographic and indecent and later burned the seized
materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor
Bagatsing and several officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited
by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents
from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and
that the publication is protected by the Constitutional guarantees of freedom of speech and of the press.
The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an
urgent motion for issuance of another restraining order, which was opposed by defendant on the ground
that issuance of a second restraining order would violate the Resolution of the Supreme Court dated
January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa Blg.
129, which provides that a temporary restraining order shall be effective only for twenty days from date of
its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for
the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine
alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a
reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the
defendants, who may file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on
plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum"
to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of
preliminary injunction, and dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on
December 14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the
writ prayed for should not be granted. We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene
publications or materials deserves close scrutiny because of the constitutional guarantee protecting the
right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order.
unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of
against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending
the press is not without restraint as the state has the right to protect society from pornographic literature
hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to
that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of
continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14,
obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
1983.
969). Also well settled is the rule that the right against unreasonable searches and seizures recognizes
certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that the conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3
said materials were voluntarily surrendered by the vendors to the police authorities, and that the said
confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969,
The petitioner now ascribes to the respondent court the following errors:
which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ of
 1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
police officers could without any court warrant or order seize and confiscate petitioner's magazines on the
basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it
for resolution was merely the application of petitioner for the writ of preliminary injunction. 4
The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes
for an obscene or pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the test, in determining the
existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may
fall." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an
indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must depend upon the
circumstances of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense of the
community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown
increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when
can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a
corrupting influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical
"community standard" — whatever that is — and that the question must supposedly be judged from case to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal
Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art
exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there
would be no offense committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures
were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit
would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not
be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing
so, were not exactly artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid
curiosity and taste, and lust, and for love for excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these
pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier
said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial
purposes," 12 the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element that should
accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in
the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might
yet claim that there was involved the element of art; that connoisseurs of the same, and painters and
sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts
of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it
but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as
it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the
land. ... 14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by
"artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and
"two-cents worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United States, adopted the test:
"Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals
to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than isolated passages, which were central toKottinger (although both cases
are agreed that "contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak undertook
moreover to make the determination of obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey from development to development,
which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming social
value," 21 marked yet another development.
The latest word, however, is Miller v. California, 22 which expressly abandoned Massachusettes, and established "basic
guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a whole,
appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value." 24
(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v.
Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal
Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the
courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have assumed that "obscenity" is not
included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that
this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech
nonetheless, although it is subject — as in all speech — to regulation in the interests of [society as a whole] — but not in the
interest of a uniform vision of how human sexuality should be regarded and portrayed." 28
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut
provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their works are considered important literature today. 29 Goya's La Maja desnuda was
once banned from public exhibition but now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the divergent
perceptions of men and women that have probably compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as it is far
from being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisional law on
obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that
is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically
raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free
expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present danger"
that would warrant State interference and action. 30 But, so we asserted in Reyes v. Bagatsing, 31 "theburden to show the existence
of grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]." 32
"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present
danger." 33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his
own appraisal of what the public welfare, peace or safety may require." 34
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test." 35
The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather
as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and
seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech
may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear
but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come to terms with,
and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a
lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure,
by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect
society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us back to square one:
were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37is also fine, but the
question, again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in disregard of
due process. In Philippine Service Exporters, Inc. v. Drilon, 38 We defined police power as "state authority to enact legislation
that may interfere with personal liberty or property in order to promote the general welfare ." 39Presidential Decrees Nos. 960 and
969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt
our law enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the commandments of the
Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly,
the Decrees themselves lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints, engravings,
sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201),
RPC as amended) shall be governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the
violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of
the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15)
days after his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for
review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No,
960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations of Section I hereof,
the penalty as provided herein shall be imposed in the maximum period and, in addition, the accessory
penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed . 40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be searched,
and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and
subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing
the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We
have greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the
instant case involves an obscenity rap makes it no different from Burgos, a political case, because, and as we have indicated,
speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. — A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense. 44
but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of
a crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as
amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal
responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished."46 For starters, there is
no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayor could have validly ordered
the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws"
has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very
complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an
obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a
clear and present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved
on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized
are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official
power under the Civil Code" 47 or the Revised Penal code . 48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing,
however, that the magazines subject of the search and seizure ave been destroyed, the Court declines to grant affirmative relief.
To that extent, the case is moot and academic.

SO ORDERED.
G.R. No. 159751 December 6, 2006 of x-rated VHS Tapes, lewd films depicting men and women having sexual intercourse[,] lewd photographs of nude
men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or
pornography to public view.
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent. Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L.
DECISION Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After
the prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which
the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of
evidence for the accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5
QUISUMBING, J.:

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:
This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of
the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC),
Branch 21, in Criminal Case No. 99-176582. WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY
ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the
indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the Revised Penal Code, as
correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.
amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six
(6) years of prision correccional, and to pay the fine of P6,000 and cost of suit.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is
hereby ACQUITTED of the crime charged.
The facts as culled from the records are as follows.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the
Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal
government.
Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store
bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional
Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code SO ORDERED.6
against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E.
Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as
follows,
a. Copies of New Rave Magazines with nude obscene pictures;
WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from
b. Copies of IOU Penthouse Magazine with nude obscene pictures; isAFFIRMED IN TOTO.

c. Copies of Hustler International Magazine with nude obscene pictures; and Costs against accused-appellants.

d. Copies of VHS tapes containing pornographic shows.3 SO ORDERED.7

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the Hence the instant petition assigning the following errors:
prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-
five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic.
I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:
II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully,
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.
unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located
at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies
Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially
Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution on the youth of the land.21
must prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the
appellate court’s reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary
no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists
community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court
that he was not an attendant in Music Fair, nor did he introduce himself so. 9
measures obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages.

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article
201, and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando
was naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that
Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable. 10
At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute
the prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for
decision.a1 12 The trial court therefore resolved the case on the basis of prosecution’s evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect,
as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottingerfailed to
afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as,
whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such
exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has
permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at
all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the
materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such
materials.13 Necessarily, that the confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined
obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is,
whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral
influences and into whose hands a publication or other article charged as being obscene may fall. 15 Another test according
to Kottinger is "that which shocks the ordinary and common sense of men as an indecency."16 But, Kottinger hastened to say that
whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to
be decided by the judgment of the aggregate sense of the community reached by it. 17
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines,
to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by
the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently
offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently
offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 29 What
remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on
the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of
court in ruling that the confiscated materials are obscene, reasoned as follows:
the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity.

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .
In People v. Go Pin, the Court said:

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed
Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and
and appreciated by people interested in art, there would be no offense committed. However, the pictures here in
are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive
question were used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic
consideration in their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and acts…The
qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance.
exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense to
Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it
public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the youth. (Citations
would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing
omitted)
so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy
and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and
for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa
themselves from the ill and perverting effects of these pictures.20 Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent
and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive
may be innocent, but the performance was revolting and shocking to good minds...
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The
Court therein said that:
In one (1) case the Supreme Court ruled:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there
is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons
interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their
 morbid curiosity, taste and lust and for [love] of excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures
were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless
such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of
facts.31 In this case, petitioners neither presented contrary evidence nor questioned the trial court’s findings. There is also no
showing that the trial court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable
under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The
offense in any of the forms under Article 201 is committed only when there is publicity. 32The law does not require that a person
be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are
offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in selling and
exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner
Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place. 34 Moreover, the
mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the store. 35 While the mayor’s permit had already
expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to
renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not
to present contrary evidence, the things which he possessed were presumptively his. 36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials.
Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the
store attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and
we uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats
with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in
their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding the
herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals
affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.

SO ORDERED.
G.R. No. L-31687 February 26, 1970

NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.

RESOLUTION

GENTLEMEN:

Quoted hereunder, for your information, is a resolution of this Court of even date:

"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and arguments of the parties, issued
the following Resolution:

Without prejudice to a more extended opinion and taking into account the following considerations:

That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;

That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable discretion to determine or specify the
streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and
proper policing to minimize the risks of disorder and maintain public safety and order;

That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda during
Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal activities of the
community and has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of the demonstration sought to
be held this afternoon;

That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving respondent
Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer
and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such
assemblies, and petitioner has manifested that it has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension
that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to
the general detriment of the public:

That civil rights and liberties can exist and be preserved only in an order society;

The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application for permit
unconditionally;

The Court resolved to DENY the writ prayed for and to dismiss the petition.

G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected
area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila
to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public
park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a
short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief
speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament,
World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the
Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march
would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that
in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a
peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983
was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a
fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which
strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be
held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may
be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the
matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the
ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial
of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of
a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such
minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of
the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free
speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear
and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people
to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost
deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of
a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice
Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of
free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v.
Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single
guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the
exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt
from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for
gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its
significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by
the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in
a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though
is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather
to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance
and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of
the high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted
with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915
decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade
for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the or oposed march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of
the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our
conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the
statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, relevant circumstances, still the assumption — especially so where the assembly is scheduled for a specific public — place is
shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts,
committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37
discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941)
penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino
the public streets for a parade or procession to procure a special license therefor from the local authorities is not an
(PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants
unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the
to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown
state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and
that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa
manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide
decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different.
proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by
Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does
Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply
not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such
unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the
emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly.
people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar
Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by
illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote
petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place
the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other
and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and
circumstances would be entitled to protection." 31
rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the
the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of
space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a expression.
petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the
Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965
8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the
public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one
Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second
entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official
paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises
concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place.
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its
It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the
dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land.
decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must
..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it
be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest
should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage,
opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly,
or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit
along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly
insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of
stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense
with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the
is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable
presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and
assembly. Even if shown then to be applicable, that question the confronts this Court.
primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that
case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the
limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or
noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory
staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other
injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a
purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic
clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise
Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet.
of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal
Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he
Declaration of Human Rights.35 The participants to such assembly, composed primarily of those in attendance at the
did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start
application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof
from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To
that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and
repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use
observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to
dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access
free speech and peaceable assembly demands nothing less.
becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order
but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled
danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the
Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not
devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the
prudence requires that there be a realistic appraisal not of what may possibly occur but of what mayprobably occur, given all the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.
G.R. No. L-62270 May 21, 1984
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE LEE,petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National Capital Region of the
Ministry of Education, Culture and Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR
MIJARES, in his capacity as the President of the Gregorio Araneta University Foundation, GONZALO DEL ROSARIO,
in his capacity as the Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B.
MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University Foundation; ATTY.
LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security Supervisor of the Gregorio Araneta
University Foundation; ATTY. FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their
capacities as members of the Ad Hoc Committee of the Gregorio Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the grievance
alleged by petitioners, students of the Gregorio Araneta University Foundation, in this certiorari, prohibition and mandamus
proceeding. The principal respondents are Anastacio D. Ramento, Director of the National Capital Region of the Ministry of
Education, Culture and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent
Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal
assembly and suspending them is sought in this petition.
The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of respondent University. They
sought and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982.
Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science
basketball court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the second floor
lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the
Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science
Building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving
utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result,
disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of
the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal
assembly. Then on September 9, 1982, they were formed through a memorandum that they were under preventive suspension for
their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was
challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages against
private respondents 2 and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as
Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for
Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit
granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. Hence
this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-parte motion for the immediate
issuance of a temporary mandatory order filed by counsel for petitioners, dated November 12, 1982, the Court Resolved to
ISSUE A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person or persons acting in their place or
stead from enforcing the order of the Ministry of' Education and Culture dated October 20, 1982 finding the petitioners guilty of
the charges against them and suspending them for one (1) academic year with a stern warning that a commission of the same or
another offense will be dealt with utmost severity, effective as of this date and continuing until otherwise ordered by this Court,
thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private respondents prayed for the dismissal of the petition "for
lack of factual and legal basis and likewise [prayed] for the lifting of the temporary restraining order dated November 16,
1982." 4 Public respondent Ramento, on the other hand, through the Office of the Solicitor General, prayed for the dismissal of
the petition based on the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the MECS
did not commit any error, much less abused his discretion, when he affirmed the decision of respondent University finding
petitioners guilty of violations of the provisions of the Manual of Regulations for Private Schools and the Revised Student's
Code of Discipline .and ordering their suspension for one (1) academic school year. However, since said suspension has not been
enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and
allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private respondents, the case was ready for
decision.
This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary restraining
order issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them doing so and with the
other two equally entitled to do so. Moreover, there is the added circumstance of more than a year having passed since October
20, 1982 when respondent Ramento issued the challenged decision suspending them for one year. Nonetheless, with its validity
having been put in issue, for being violative of the constitutional rights of freedom of peaceable assembly and free speech, there
is need to pass squarely on the question raised.
This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for the setting
aside of the decision of respondent Ramento, the penalty imposed being unduly severe. It is true that petitioners held the rally at
a place other than that specified in the permit and continued it longer than the time allowed. Undeniably too, they did disturb the
classes and caused the work of the non-academic personnel to be left undone. Such undesirable consequence could have been
avoided by their holding the assembly in the basketball court as indicated in the permit. Nonetheless, suspending them for one
year is out of proportion to their misdeed. The petition must be granted and the decision of respondent Ramento nullified, a much
lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable assembly carries
with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom
of expression which is Identified with the liberty to discuss publicly and truthfully, any matter of public interest without
censorship or punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and present danger
of a substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public park to the gates of the
united States Embassy, hardly two blocks away, where in an open space of public property, a short program would be held.
Necessarily then, the question of the use of a public park and of the streets leading to the United States Embassy was before this
Court. We held that streets and parks have immemorially been held in trust for the use of the public and have been used for
purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a public place but in private premises, property of
respondent University. There is in the Reyes opinion as part of the summary this relevant excerpt: "The applicants for a permit to
hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If
it were a private place, only the consent of the owner or the one entitled to its legal possession is required." 9 Petitioners did seek
such consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a permit granted to them by the school
administration, the Supreme Student Council where your petitioners are among the officers, held a General Assembly at the
VMAS basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent
University as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved
then is whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement
of the right to peaceable assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the
citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was
held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School
District, 12 "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13While, therefore, the
authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of
constitutional safeguards. On a more specific level there is persuasive force to this formulation in the Fortas opinion: "The
principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain
types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part
of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not
embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized
hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially
and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without
colliding with the rights of others. ... But conduct by the student, in class or out of it, which for any reason — whether it stems
from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of
others is, of course, not immunized by the constitutional guarantee of freedom of speech." 14
5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their
constitutional rights to peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their
continuing their demonstration in a place other than that specified in the permit for a longer period and their making use of
megaphones therein, resulting in the disruption of classes and the stoppage of work by the non-academic personnel in the
vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous
presentation of views opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to
be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious
problem (iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an
additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such
demonstration, with an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let
loose, that is quite understandable. Student leaders are hardly the timid, diffident types. They are likely to be assertive and
dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any
rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the
excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth, They may give the speakers the
benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present
danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to
borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly. In a 1907
decision, United States v. Apurado, 17 the facts disclosed that shortly before the municipal council of San Carlos, Occidental
Negros, started its session, some five hundred residents of the municipality assembled near the municipal building, and, upon the
opening of the session, a substantial number of such persons barged into the council chamber, demanding that the municipal
treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed substitutes. The
municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was
fairly orderly and well-behaved except in so far as their pressing into the council chamber during a session of that body could be
called disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno
Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal
government from freely exercising its duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion,
correctly pointed out that "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it
on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest
form of punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting
authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line
betweendisorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A
careful reading of this decision is in order before private respondents attach, as they did in their comments, a subversive
character to the rally held by the students under the leadership of petitioners.
According to the decision of respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p.
m. 20 Private respondents could thus, take disciplinary action. On those facts, however, an admonition, even a censure-certainly
not a suspension-could be the appropriate penalty. Private respondents could and did take umbrage at the fact that in view of
such infraction considering the places where and the time when the demonstration took place-there was a disruption of the
classes and stoppage of work of the non-academic personnel. They would not be unjustified then if they did take a much more
serious view of the matter. Even then a one-year period of suspension is much too severe. While the discretion of both
respondent University and respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser
penalty. If the concept of proportionality between the offense connoted and the sanction imposed is not followed, an element of
arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the holding of
this Court that a one-week suspension would be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies. That is true, but hardly
decisive. Here, a purely legal question is presented. Such being the case, especially so where a decision on a question of law is
imperatively called for, and time being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What
cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invoked by
petitioners. Moreover, there was, and very likely there will continue to be in the future, militancy and assertiveness of students
on issues that they consider of great importance, whether concerning their welfare or the general public. That they have a right to
do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay down the principles
for the guidance of school authorities and students alike. The rights to peaceable assembly and free speech are guaranteed
students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public
interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present
danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the
content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an
advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through
the ways of the law. If the assembly is to be held in school premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the
time and place of the assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if,
however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense.
WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento imposing a one-year
suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of November 18,
1982 is made permanent. As of that date, petitioners had been suspended for more than a week. In that sense, the one-week
penalty had been served. No costs.

8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a
violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than
the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed.

[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia
Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT
MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO
BIAZON, and SENATOR FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT
INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B.
ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E. ESTRADA,
RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners,
vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO
V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C.
RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR
RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION,
DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT
(VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating
to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines and the United
States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which
formalized, among others, the use of installations in the Philippine territory by United States military personnel. To further
strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces,
public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United
States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected
the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US
military bases in the Philippines.[2] With the expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on
the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region. Both sides discussed,
among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on
the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and negotiations [3] that culminated
in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively
signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. [4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted
to the Senate of the Philippines,[5] the Instrument of Ratification, the letter of the President[6] and the VFA, for concurrence
pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G.
Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 [8] recommending the concurrence of the
Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote[9] of its
members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon
and United States Ambassador Hubbard.
 The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is
quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army, Navy, Marine Corps, Air
Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents in the
Philippines and who are employed by the United States armed forces or who are accompanying the United
States armed forces, such as employees of the American Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any
activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the
Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the
Philippines.
3. The following documents only, which shall be presented on demand, shall be required in respect of United States
military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or
grade and service number (if any), branch of service and photograph;
(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or
visit and identifying the individual or group as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required
by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection
and will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of
United States aircraft or United States vessels or cargoes thereon shall be conducted by the United States
commanding officer in accordance with the international health regulations as promulgated by the World
Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports
upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the
United States authorities shall be responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate
United States authority to United States personnel for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses
committed within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the military law of the United States over United States
personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the Philippines, punishable under the laws of
the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the United States, punishable under the laws
of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security
means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by
United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United States
personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely against the
property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
 (c) The authorities of either government may request the authorities of the other government to waive their
primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good order and
discipline among their forces, Philippine authorities will, upon request by the United States, waive their
primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular importance, it shall communicate
such determination to the United States authorities within twenty (20) days after the Philippine authorities
receive the United States request.
(e) When the United States military commander determines that an offense charged by authorities of the
Philippines against United states personnel arises out of an act or omission done in the performance of
official duty, the commander will issue a certificate setting forth such determination. This certificate will
be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require a review of the duty
certificate, United States military authorities and Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also present any information bearing on its validity. United
States military authorities shall take full account of the Philippine position. Where appropriate, United
States military authorities will take disciplinary or other action against offenders in official duty cases, and
notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the
other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases
in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each
other in the arrest of United States personnel in the Philippines and in handling them over to authorities who
are to exercise jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United
States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall
promptly notify United States military authorities of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those authorities
in time for any investigative or judicial proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any
obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the
one-year period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the
carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of
witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery
of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this Article and have been
acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence
remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or omission which
constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they
shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United
States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and to have
reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the
Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such
authorities present at all judicial proceedings. These proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippine and United States authorities. United States Personnel serving
sentences in the Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not
be subject to the jurisdiction of Philippine military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales letters of offer and
acceptance and leases of military equipment, both governments waive any and all claims against each other for
damage, loss or destruction to property of each others armed forces or for death or injury to their military and
civilian personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the
United States Government, in accordance with United States law regarding foreign claims, will pay just and
reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused
by acts or omissions of United States personnel, or otherwise incident to the non-combat activities of the
United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported into or acquired in the
Philippines by or on behalf of the United States armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the Philippines at any time, free
from export duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also
extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes, and duties and
prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United
States personnel may be imported into and used in the Philippines free of all duties, taxes and other similar
 charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon prior approval of the appropriate
Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines
by United States personnel shall be free of all Philippine duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels shall be in accordance with international custom and
practice governing such vessels, and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the
payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light
and harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall
observe local air traffic control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject to compulsory pilotage
at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each other in writing through the
diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement shall
remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing
that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave abuse of
discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I common to all members of the public.
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the
VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment,
materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US
Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not shown any interest
in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show not only that the law is invalid,
but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. He must show 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 complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger
of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the
VFA involves the exercise by Congress of its taxing or spending powers. [15] On this point, it bears stressing that a taxpayers suit
refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from
taxation.[16] Thus, inBugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to
the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must specifically prove that
he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury
as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail
the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess
the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the House of Representatives to question the validity of
a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold
petitioners standing as members of Congress, in the absence of a clear showing of any direct injury to their person or to the
institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant
tax exemptions, are more apparent than real.While it may be true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
 In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly
observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its
Board of Governors authorizing its National President to commence the present action. [19]
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the
petitions, as we have done in the early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by
President Quirino although they were involving only an indirect and general interest shared in common with the public. The
Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We
have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs. Singson,[22] and Basco vs.
Phil. Amusement and Gaming Corporation,[23] where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the 1987
Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers,
which enjoins upon the departments of the government a becoming respect for each others acts,[25] this Court nevertheless
resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with
regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article
XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a
basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of
the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people
in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least
two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on treatise or international agreements and
applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those
economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines.Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in the
Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other, actually share some
common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in
mandate and character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase shall
not be allowed. Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate
extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the
strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or
facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex
specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its
most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the
general enactment must be taken to affect only such cases within its general language which are not within the provision of the
particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation
on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable
(Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120
SCRA 760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor
specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason
that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no
distinction between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops
or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex
non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional
provision reveals that the proscription covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not
limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign
military bases, troops, or facilitiescollectively but treats them as separate and independent subjects. The use of comma and the
disjunctive word or clearly signifies disassociation and independence of one thing from the others included in the
enumeration,[28] such that, the provision contemplates three different situations - a military treaty the subject of which could be
either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage
of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does
enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered
into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be
the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely
troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover
everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay
afloat in the sea even for months and years without returning to their home country. These military warships are actually used as
substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with
when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (a) it must be under atreaty; (b) the treaty must be duly concurred in by the Senate and,
when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized
as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the
Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be
valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section
25, Article XVIII simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so
that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article
XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true
however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which
in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all
the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in relation to the provisions of
Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article
XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the
instant case.
Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on
the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators at the time the voting was made,[31] will not alter in any significant
way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-
thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds
of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of
giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not
be considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on
the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty.[32] To require the other contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence pursuant to its Constitution, [33] is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be
understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty. [35] To be sure, as long as the VFA possesses the elements of
an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between
States in written form and governed by international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.[36] There are many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact,
statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of
international agreements included under the general term treatyhave little or no legal significance. Certain terms are useful, but
they furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of
the State.
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have remained within their powers.[38] International law continues to
make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has
been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our
courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright
Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol.
25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-
instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is
entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then
as far as we are concerned, we will accept it as a treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to the terms of the VFA. [42] For as long as the united States of
America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be
taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold
the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case
may be, through which the formal acceptance of the treaty is proclaimed.[43] A State may provide in its domestic legislation the
process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty
provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required,
(c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role
of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. [45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its
international relations. While the international obligation devolves upon the state and not upon any particular branch, institution,
or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or
subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to
assure that our government, Constitution and laws will carry out our international obligation. [47] Hence, we cannot readily plead
the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international
law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in
1949 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force is binding upon the parties to it
and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity
of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of
international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task
conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65 of the
Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then) conceded. [51] Wielding vast powers an influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the
VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or judgment calls
of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental
to the exercise of such principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly
struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the
President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section
21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the
President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence
requirement embodied in the fundamental law. In doing so, the President merely performed a constitutional task and exercised a
prerogative that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent,
gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into
areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done
away with political questions such as those which arise in the field of foreign relations. [54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave abuse
of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no power
to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once the
Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof.Corollarily, the Senate, in the
exercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a
task conferred and sanctioned by no less than the fundamental law.
 For the role of the Senate in relation to treaties is essentially legislative in character; [57] the Senate, as an independent body
possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive
and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of
legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle
with such affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.