Consti2 Cases Quiz Batch 5

CONSTI2 JAN.
4, 2010 QUIZ 1
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 132231 March 31, 1998
EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,

vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
This is a petition for prohibition, seeking a reexamination of the validity of §11(b) of R.A. No. 6646,
the Electoral Reforms Law of 1987, which prohibits mass media from selling or giving free of
charge print space or air time for campaign or other political purposes, except to the Commission
on Elections. 1 Petitioners are candidates for public office in the forthcoming elections. Petitioner
Emilio M. R. Osmeña is candidate for President of the Philippines, while petitioner Pablo P. Garcia
is governor of Cebu Province, seeking reelection. They contend that events after the ruling in
National Press Club v. Commission on Elections 2 "have called into question the validity of the very
premises of that [decision]." 3
There Is No Case or Controversy to Decide,

Only an Academic Discussion to Hold
NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646 against claims that it abridged
freedom of speech and of the press. 4 In urging a reexamination of that ruling, petitioners claim that
experience in the last five years since the decision in that case has shown the "undesirable effects"
of the law because "the ban on political advertising has not only failed to level the playing field,
[but] actually worked to the grave disadvantage of the poor candidate[s]" 5 by depriving them of a
medium which they can afford to pay while their more affluent rivals can always resort to other
means of reaching voters like airplanes, boats, rallies, parades, and handbills.
No empirical data have been presented by petitioners to back up their claim, however.
Argumentation is made at the theoretical and not the practical level. Unable to show the
"experience" and "subsequent events" which they claim invalidate the major premise of our prior
decision, petitioners now say "there is no need for 'empirical data' to determine whether the
political ad ban offends the Constitution or not." 6 Instead they make arguments from which it is
clear that their disagreement is with the opinion of the Court on the constitutionality of §11(b) of
R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that
case. What is more, some of the arguments were already considered and rejected in the NPC
case. 7
Indeed, petitioners do not complain of any harm suffered as a result of the operation of the law.
They do not complain that they have in any way been disadvantaged as a result of the ban on
media advertising. Their contention that, contrary to the holding in NPC, §11(b) works to the
disadvantage of candidates who do not have enough resources to wage a campaign outside of
mass media can hardly apply to them. Their financial ability to sustain a long drawn-out campaign,
using means other than the mass media to communicate with voters, cannot be doubted. If at all, it
is candidates like intervenor Roger Panotes, who is running for mayor of Daet, Camarines Norte,
who can complain against §11(b) of R.A. No. 6646. But Panotes is for the law which, he says, has
"to some extent, reduced the advantages of moneyed politicians and parties over their rivals who
are similarly situated as ROGER PANOTES." He claims that "the elimination of this substantial
advantage is one reason why ROGER PANOTES and others similarly situated have dared to seek
an elective position this coming elections." 8
What petitioners seek is not the adjudication of a case but simply the holding of an academic
exercise. And since a majority of the present Court is unpersuaded that its decision in NPC is
founded in error, it will suffice for present purposes simply to reaffirm the ruling in that case. Stare
CONSTI2 JAN. 4, 2010 QUIZ 2
decisis et non quieta movere. This is what makes the present case different from the overruling
decisions 9 invoked by petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to clarify
our own understanding of its reach and set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of

COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media
The term political "ad ban," when used to describe §11(b) of R.A. No. 6646, is misleading, for even
as §11(b) prohibits the sale or donation of print space and air time to political candidates, it
mandates the COMELEC to procure and itself allocate to the candidates space and time in the
media. There is no suppression of political ads but only a regulation of the time and manner of
advertising.
Thus, §11(b) states:
Prohibited Forms of Elections Propaganda. — In addition to the forms of election propaganda prohibited in
Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making
use of the mass media to sell or to give free of charge print space or air time for campaign or other political
purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any
mass media columnist, commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.
On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper, publication
shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec
Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within the area in which the newspaper is
circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as "Comelec
Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all
radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations
are hereby amended so as to provide radio or television time, free of charge, during the period of the
campaign. (Sec. 46, 1978 EC)
The law's concern is not with the message or content of the ad but with ensuring media equality
between candidates with "deep pockets," as Justice Feliciano called them in his opinion of the
Court in NPC, and those with less resources. 10 The law is part of a package of electoral reforms
adopted in 1987. Actually, similar effort was made in 1970 to equalize the opportunity of
candidates to advertise themselves and their programs of government by requiring the COMELEC
to have a COMELEC space in newspapers, magazines, and periodicals and prohibiting candidates
to advertise outside such space, unless the names of all the other candidates in the district in
which the candidate is running are mentioned "with equal prominence." The validity of the law was
challenged in Badoy, Jr. v. COMELEC. 11 The voting was equally divided (5-5), however, with the
result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions such as those imposed by the
election law provisions in question in this case and those found to be unconstitutional in the cases
cited by both petitioners and the Solicitor General, who has taken the side of petitioners. In Adiong
v.
COMELEC 12 the Court struck down a regulation of the COMELEC which prohibited the use of
campaign decals and stickers on mobile units, allowing their location only in the COMELEC
common poster area or billboard, at the campaign headquarters of the candidate or his political
party, or at his residence. The Court found the restriction "so broad that it encompasses even the
citizen's private property, which in this case is a privately-owned car." Nor was there a substantial
13
governmental interest justifying the restriction.
[T]he 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. 14
Mutuc v. COMELEC 15 is of a piece with Adiong. An order of the COMELEC prohibiting the playing
of taped campaign jingles through sound systems mounted on mobile units was held to be an
invalid prior restraint without any apparent governmental interest to promote, as the restriction did
not simply regulate time, place or manner but imposed an absolute ban on the use of the jingles.
The prohibition was actually content-based and was for that reason bad as a prior restraint on
speech, as inhibiting as prohibiting the candidate himself to use the loudspeaker. So is a ban
against newspaper columnists expressing opinion on an issue in a plebiscite a content restriction
which, unless justified by compelling reason, is unconstitutional. 16
Here, on the other hand, there is no total ban on political ads, much less restriction on the content
of the speech. Given the fact that print space and air time can be controlled or dominated by rich
candidates to the disadvantage of poor candidates, there is a substantial or legitimate
governmental interest justifying exercise of the regulatory power of the COMELEC under Art. IX-C,
§4 of the Constitution, which provides:
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 subsiding.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
The provisions in question involve no suppression of political ads. The only prohibit the sale or
donation of print space and air time to candidates but require the COMELEC instead to procure
space and time in the mass media for allocation, free of charge, to the candidates. In effect, during
the election period, the COMELEC takes over the advertising page of newspapers or the
commercial time of radio and TV stations and allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary period be doubted. 17 In
Pruneyard Shopping Center v. Robbins, 18 it was held that a court order compelling a private
shopping center to permit use of a corner of its courtyard for the purpose of distributing pamphlets
or soliciting signatures for a petition opposing a UN resolution was valid. The order neither
unreasonably impaired the value or use of private property nor violated the owner's right not to be
compelled to express support for any viewpoint since it can always disavow any connection with
the message.
On the other hand, the validity of regulations of time, place and manner, under well-defined
standards, is well-nigh beyond question. 19 What is involved here is simply regulation of this nature.
Instead of leaving candidates to advertise freely in the mass media, the law provides for allocation,
by the COMELEC, of print space and air time to give all candidates equal time and space for the
purpose of ensuring "free, orderly, honest, peaceful, and credible elections."
In Gonzales v. COMELEC, 20 the Court sustained the validity of a provision of R.A. No. 4880 which
in part reads:
Sec. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. — It is unlawful for
any person whether or not a voter or candidate, or for any group, or association of persons, whether or not a
political party or political committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election involving a public office voted
for at large and ninety days immediately preceding an election for any other elective public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public office, regardless of
whether or not said person has already filed his certificate of candidacy or has been nominated by any political
party as its candidate.
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for
the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against
a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate or party; . . .
In Valmonte v. COMELEC, 21 on the other hand, the Court upheld the validity of a COMELEC
resolution prohibiting members of citizen groups or associations from entering any polling place
except to vote. Indeed, §261(k) of the Omnibus Election Code makes it unlawful for anyone to
solicit votes in the polling place and within a radius of 30 meters thereof.
These decisions come down to this: the State can prohibit campaigning outside a certain period as
well as campaigning within a certain place. For unlimited expenditure for political advertising in the
mass media skews the political process and subverts democratic self-government. What is bad is if
the law prohibits campaigning by certain candidates because of the views expressed in the ad.
Content regulation cannot be done in the absence of any compelling reason.
Law Narrowly Drawn to Fit

Regulatory Purpose
The main purpose of §11(b) is regulatory. Any restriction on speech is only incidental, and it is no
more than is necessary to achieve its purpose of promoting equality of opportunity in the use of
mass media for political advertising. The restriction on speech, as pointed out in NPC, is limited
both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the regulation, which they call a
ban, would be useless any other time than the election period. Petitioners state: "[I]n testing the
reasonableness of a ban on mountain-skiing, one cannot conclude that it is limited because it is
enforced only during the winter season." 22 What makes the regulation reasonable is precisely that
it applies only to the election period. Its enforcement outside the period would make it
unreasonable. More importantly, it should be noted that a "ban on mountain skiing" would be
passive in nature. It is like the statutory cap on campaign expenditures, but is so unlike the real
nature of §11(b), as already explained.
Petitioners likewise deny that §11(b) is limited in scope, as they make another quaint argument:
A candidate may court media to report and comment on his person and his programs, and media in the
exercise of their discretion just might. It does not, however, follow that a candidate's freedom of expression is
thereby enhanced, or less abridged. If Pedro is not allowed to speak, but Juan may speak of what Pedro
wishes to say, the curtailment of Pedro's freedom of expression cannot be said to be any less limited, just
because Juan has the freedom to speak. 23
The premise of this argument is that §11(b) imposes a ban on media political advertising. What
petitioners seem to miss is that the prohibition against paid or sponsored political advertising is
only half of the regulatory framework, the other half being the mandate of the COMELEC to
procure print space and air time so that these can be allocated free of charge to the candidates.
Reform of The Marketplace of Ideas,

Not Permissible?
Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception that Art.
IX-C, §4 mandates the absolute equality of all candidates regardless of financial status, when what
this provision speaks of is "equality of opportunity." In support of this claim, petitioners quote the
following from the opinion of the Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far as practicable, the situations of rich and
poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war
chests." 24
The Court meant equalizing media access, as the following sentences which were omitted clearly
show:
Section 11(b) prohibits the sale or donation of print space and air time "for campaign or other political
purposes" except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of
the Omnibus Election Code require the Comelec to procure "Comelec space" in newspapers of general
circulation in every province or city and "Comelec time" on radio and television stations. Further, the Comelec
is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal and
impartial basis among all candidates within the area served by the newspaper or radio and television station
involved. 25
On the other hand, the dissent of Justice Romero in the present case, in batting for an "uninhibited
market place of ideas," quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to
"secure the widest possible dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by the
people. 26
But do we really believe in that? That statement was made to justify striking down a limit on
campaign expenditure on the theory that money is speech. Do those who endorse the view that
government may not restrict the speech of some in order to enhance the relative voice of others
also think that the campaign expenditure limitation found in our election laws 27 is unconstitutional?
How about the principle of one person, one vote, 28 is this not based on the political equality of
voters? Voting after all is speech. We speak of it as the voice of the people — even of God. The
notion that the government may restrict the speech of some in order to enhance the relative voice
of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being
in fact an animating principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality. Art.
XIII, §1 requires Congress to give the "highest priority" to the enactment of measures designed to
reduce political inequalities, while Art. II, §26 declares as a fundamental principle of our
government "equal access to opportunities for public service." Access to public office will be denied
to poor candidates if they cannot even have access to mass media in order to reach the electorate.
What fortress principle trumps or overrides these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the Constitution
now appear dim to us, how can the electoral reforms adopted by them to implement the
Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are part, be considered
infringements on freedom of speech? That the framers contemplated regulation of political
propaganda similar to §11(b) is clear from the following portion of the sponsorship speech of
Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of 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, there is a provision that during the
election period, the Commission may regulate, among other things, the rates, reasonable free space, and time
allotments for public information campaigns and forums among candidates for the purpose of ensuring free,
orderly, honest and peaceful elections. This has to do with the media of communication or information. 29
On the Claim that the Reforms

Have Been Ineffectual
Petitioners contend that §11(b) is not a reasonable means for achieving the purpose for which it
was enacted. They claim that instead of levelling the playing field as far as the use of mass media
for political campaign is concerned, §11(b) has abolished it. They further claim that §11(b) does
not prevent rich candidates from using their superior resources to the disadvantage of poor
candidates.
All this is of course mere allegation. As stated in the beginning, what petitioners claim to be the
nation's experience with the law is merely argumentation against its validity. The claim will not bear
analysis, however. Assuming that rich candidates can spend for parades, rallies, motorcades,
airplanes and the like in order to campaign while poor candidates can only afford political ads, the
gap between the two will not necessarily be reduced by allowing unlimited mass media advertising
because rich candidates can spend for other propaganda in addition to mass media advertising.
Moreover, it is not true that §11(b) has abolished the playing field. What it has done, as already
stated, is merely to regulate its use through COMELEC-sponsored advertising in place of
advertisements paid for by candidates or donated by their supporters.
It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed that
people hardly read or watch or listen to them. Again, this is a factual assertion without any
empirical basis to support it. What is more, it is an assertion concerning the adequacy or necessity
of the law which should be addressed to Congress. Well-settled is the rule that the choice of
remedies for an admitted social malady requiring government action belongs to Congress. The
remedy prescribed by it, unless clearly shown to be repugnant to fundamental law, must be
respected. 30 As shown in this case, §11(b) of R.A. 6646 is a permissible restriction on the freedom
of speech, of expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most effective means of reaching
voters. He adverts to a manifestation of the COMELEC lawyer that the Commission "is not
procuring [Comelec Space] by virtue of the effects of the decision of this Honorable Court in the
case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272." 31
To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper space
for allocation to candidates. What it ruled is that the COMELEC cannot procure print space without
paying just compensation. Whether by its manifestation the COMELEC meant it is not going to buy
print space or only that it will not require newspapers to donate free of charge print space is not
clear from the manifestation. It is to be presumed that the COMELEC, in accordance with its
mandate under §11(b) of R.A. No. 6646 and §90 of the Omnibus Election Code, will procure print
space for allocation to candidates, paying just compensation to newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the faithful compliance of those
charged with its enforcement but by appropriate constitutional provisions. There is a remedy for
such lapse if it should happen. In addition, there is the COMELEC Time during which candidates
may advertise themselves. Resolution No. 2983-A of the COMELEC provides:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under franchise
shall grant to Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily,
to be known as "Comelec Time", effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis
added).
Failure of Legislative Remedy Bespeaks

of More than Congressional Inaction
The fact is that efforts have been made to secure the amendment or even repeal of §11(b) of R.A.
No. 6646. No less than five bills 32 were filed in the Senate in the last session of Congress for this
purpose, but they all failed of passage. Petitioners claim it was because Congress adjourned
without acting on them. But that is just the point. Congress obviously did not see it fit to act on the
bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be valid so that
those opposed to the statute resorted to the legislative department. The latter reconsidered the
question but after doing so apparently found no reason for amending the statute and therefore did
not pass any of the bills filed to amend or repeal the statute. Must this Court now grant what
Congress denied to them? The legislative silence here certainly bespeak of more than inaction.
Test for Content-Neutral Restrictions 33
In Adiong v. COMELEC 34 this Court quoted the following from the decision of the U.S. Supreme
Court in a case sustaining a Los Angeles City ordinance which prohibited the posting of campaign
signs on public property:
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 incident 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]) 35
This test was actually formulated in United States v. O'Brien. 36 It is an appropriate test for
restrictions on speech which, like §11(b), are content-neutral. Unlike content-based restrictions,
they are not imposed because of the content of the speech. For this reason, content-neutral
restrictions are tests demanding standards. For example, a rule such as that involved in Sanidad v.
COMELEC, 37 prohibiting columnists, commentators, and announcers from campaigning either for
or against an issue in a plebiscite must have a compelling reason to support it, or it will not pass
muster under strict scrutiny. These restrictions, it will be seen, are censorial and therefore they
bear a heavy presumption of constitutional invalidity. In addition. they will be tested for possible
overbreadth and vagueness.
It is apparent that these doctrines have no application to content-neutral regulations which, like
§11(b), are not concerned with the content of the speech. These regulations need only a
substantial governmental interest to support them. 38 A deferential standard of review will suffice to
test their validity.
Justice Panganiban's dissent invokes the clear-and-present-danger test and argues that "media
ads do not partake of the 'real substantive evil' that the state has a right to prevent and that justifies
the curtailment of the people's cardinal right to choose their means of expression and of access to
information." The clear-and-present-danger test is not, however, a sovereign remedy for all free
speech problems. As has been pointed out by a thoughtful student of constitutional law, it was
originally formulated for the criminal law and only later appropriated for free speech cases. For the
criminal law is necessarily concerned with the line at which innocent preparation ends and a guilty
conspiracy or attempt begins. 39 Clearly, it is inappropriate as a test for determining the
constitutional validity of laws which, like §11(b) of R.A. No. 6646, are not concerned with the
content of political ads but only with their incidents. To apply the clear-and-present-danger test to
such regulatory measures would be like using a sledgehammer to drive a nail when a regular
hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of speech is that content-
based restrictions distort public debate, have improper motivation, and are usually imposed
because of fear of how people will react to a particular speech. No such reasons underlie content-
neutral regulations, like regulations of time, place and manner of holding public assemblies under
B.P. Blg. 880, the Public Assembly Act of 1985. Applying the O'Brien test in this case, we find that
§11(b) of R.A. No. 6646 is a valid exercise of the power of the State to regulate media of
communication or information for the purpose of ensuring equal opportunity, time and space for
political campaigns; that the regulation is unrelated to the suppression of speech; that any
restriction on freedom of expression is only incidental and no more than is necessary to achieve
the purpose of promoting equality.
The Court is just as profoundly aware as anyone else that discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution. But it is precisely with this awareness that we think
democratic efforts at reform should be seen for what they are: genuine efforts to enhance the
political process rather than infringements on freedom of expression. The statutory provision
involved in this case is part of the reform measures adopted in 1987 in the aftermath of EDSA. A
reform-minded Congress passed bills which were consolidated into what is now R.A No. 6646 with
near unanimity. The House of Representatives, of which petitioner Pablo P. Garcia was a
distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it
19-0. 40
In his recent book. The Irony of Free Speech, Owen Fiss speaks of "a truth that is full of irony and
contradiction: that the state can be both an enemy and a friend of speech; that it can do terrible
things to undermine democracy but some wonderful things to enhance it as well." 41 We hold R.A.
No. 6646, §11(b) to be such a democracy-enhancing measure. For Holmes's marketplace of ideas
can prove to be nothing but a romantic illusion if the electoral process is badly skewed, if not
corrupted, by the unbridled use of money for campaign propaganda.
The petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan and Martinez, JJ., concur.
Separate Opinions
PUNO, J., separate concurring;
In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646 and
Resolution No. 2974 of the COMELEC implementing said law. They contend:
THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON THE PART
OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION UPON WHICH IT IS
SOUGHT TO BE GROUNDED.
II
CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT LIMITED IN
TIME AND SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING,

COMPREHENSIVE AND UNLIMITED.
B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR AS THE

CANDIDATE'S FREEDOM TO EXPRESS THROUGH THE MASS MEDIA, IT IS ABSOLUTE, ALL-
EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR RESTRAINT, AND
CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.
IV
THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE DESIRED
END.
A. INSTEAD OF "LEVELING THE PLAYING FIELD," INSOFAR AS THE USE OF MASS

MEDIA FOR POLITICAL PURPOSES IS CONCERNED, THE POLITICAL AD BAN HAS
ABOLISHED THE PLAYING FIELD.
B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN, BECAUSE IT DOES NOT

PREVENT THE RICH CANDIDATE FROM USING HIS SUPERIOR RESOURCES TO THE
UNDUE DISADVANTAGE OF THE POOR CANDIDATE.
C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD BAN BECAUSE

ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN ORDER TO PREVENT THE RICH
CANDIDATE FROM TAKING UNDUE ADVANTAGE OF HIS SUPERIOR RESOURCES.
V
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON MATTERS OF
PUBLIC CONCERN.
VI
THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE WHETHER THE POLITICAL AD BAN
OFFENDS THE CONSTITUTION OR NOT.
The Solicitor General and the petitioners-in-intervention likewise contend that section 11(b) of R.A.
No. 6646 is unconstitutional principally because it impairs freedom of speech and of the press.
A quick glance at petitioners' arguments against section 11(b) of R.A. No. 6646 will show that they
are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to the
brilliant majority decision and equally enlightening dissenting opinions in said case which
petitioners now seek to reexamine. A repetition of the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero which cites Buckley v. Valeo, 1
a 1976 case where a divided us Supreme Court ruled that limits on campaign expenditures violate
the guarantee of freedom of speech. The essence of the Buckley ruling is that "the concept that
government may restrict the speech of some elements of society in order to enhance the relative
voice of others is wholly foreign to the First Amendment . . ." 2
A reading of American legal literature, however, will reveal that Buckley has been widely criticized
by libertarians because its pro-business thrust has pernicious effects on efforts to achieve much
needed electoral reforms. 3 Typical of the criticisms is the observation of wright that the Buckley
Court ". . . has given protection to the polluting effect of money in election campaigns. As a result,
our political system may not use some of its most powerful defenses against electoral inequalities."
4
The barrage of criticisms caused the US Supreme Court to modify its absolute support for free
speech in Buckley. In the 1990 case of Austin v. Michigan State Chamber of Commerce, 5 it upheld
the constitutionality of a Michigan law that prohibited corporations from using corporate treasury
funds to support or oppose any candidate for office. Retreating from Buckley, the Austin Court
recognized the state's compelling interest in regulating campaign expenditure. Writing for the
majority, Mr. Justice Thurgood Marshall, an icon of libertarians declared: "Michigan identified as a
serious danger the significant possibility that corporate political expenditures will undermine the
integrity of the political process, and it has implemented a narrowly tailored solution to that
problem." In his concurring opinion, the last of the libertarians in the US High Court, Mr. Justice
Brennan, held: "In MCFL, we held that a provision of the Federal Election Campaign Act of 1971
(FECA), . . . similar to the Michigan law at issue here, could not be applied constitutionally to a
small, anti-abortion advocacy group. In evaluating the First Amendment challenge, however, we
acknowledged the legitimacy of Congress' concern that organizations that amass great wealth in
the economic marketplace should not gain unfair advantage in the political marketplace."
There is less reason to apply the discredited Buckley decision in our setting. Section 11(b) of R.A.
No. 6646 is based on provisions of our Constitution which have no counterparts in the US
Constitution. These provisions are:
Art. II, sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law.
Art. XIII, sec. 1. 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, and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political power for the common good.
Art. IX (c) (4). The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits from 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 therefor for public information campaigns and forms among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
A member of the Constitutional Commission, now our distinguished colleague, Mr. Justice Hilario
Davide, Jr., well explained these new wrinkles in our Constitution, viz.:
xxx xxx xxx
Aware of the lamentable fact in the Philippines; no gap between these two unavoidable extremes of society is
more pronounced than that in the field of politics, and ever mindful of the dire consequences thereof, the
framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has
been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an
election is almost always an exception. Arrayed against the vast resources of wealthy opponent, the former,
even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been
isolated instances — but yet so few and far between — when poor candidates made it. 6
He stressed that this thrust for political equality is an improvement of our past Constitutions which
merely sought to establish equality in the economic and social fields. 7
It is difficult to think why such an egalitarian law like Section 11(b) of R.A. No. 6646 should be
condemned when it equalizes the political opportunities of our people. The gap between the
perfumed few and the perspiring many in our country is galloping at a frightening pace. As the cost
of election spirals at an immoral speed, levers of the political power are wielded more and more by
the wealthy alone. The subject law attempts to break this control by reducing the purchasing power
of the peso of the rich in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of freedom of speech should not be
used to frustrate legislative attempts to level the playing field in politics. R.A. No. 6646 does not
curtail speech as it no more than prevents the abusive use of wealth by the rich to frustrate the
poor candidate's access to media. It seems to me self-evident that if Congress can regulate the
abuse of money in the economic market so can it regulate its misuse in the political freemarket.
Money talks in politics but it is not the specie of speech sanctified in our Constitution. If we allow
money to monopolize media, the political freemarket will cease to be a market of ideas but a
market for influence by the rich. I do not read freedom of speech as meaning more speech for the
rich for freedom of speech is not guaranteed only to those who can afford its exercise. There ought
to be no quarrel with the proposition that freedom of speech will be a chimera if Congress does not
open the opportunities for its exercise. When the opportunities for its exercise are obstructed by
the money of the rich, it is the duty of Congress to regulate the misuse of money — for in the
political marketplace of ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped countries where sharp
disparities in wealth exist, the threat to freedom of speech comes not only from the government but
from vested interests that own and control the media. Today, freedom of speech can be restrained
not only by the exercise of public power but also by private power. Thus, we should be equally
vigilant in protecting freedom of speech from public and private restraints. The observation of a
legal scholar is worth meditating, viz.: "With the development of private restraints on free
expression, the idea of a free marketplace where ideas can compete on their merits has become
just as unrealistic in the twentieth century as the economic theory of perfect competition. The world
in which an essentially rationalist philosophy of the first amendment was born has vanished and
what was rationalism is now romance." 8
I vote to dismiss the petitions.
Melo, J., concurs.
VITUG, J., separate opinion;
I share the opinion of those who continue to uphold the decision in the National Press Club vs.
Commission on Elections case that has sustained the validity of Section 11(b) of Republic Act
("R.A.") No. 6646, otherwise also known as the Electoral Reforms Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court in the National Press Club
case, no more than invoke anew Section 4, Article III, of the Constitution to the effect that —
No law shall be passed abridging the freedom of speech, of expression, or of press, on the right of the people
peaceably to assemble and petition the government for redress of grievances.
It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec Resolution
No. 2974 should be declared unconstitutional. These contested provisions state:
Sec. 11. 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;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use
of the mass media to sell or give free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass
media columnist, commentator, announcer or personality who is a candidate for any elective public office shall
take a leave of absence from his work as such during the campaign period.
Sec. 18. Prohibited forms of election propaganda. — It is unlawful
xxx xxx xxx
e. For any radio broadcasting or television station or any person making use of broadcast media to sell or give,
free of charge, any air time for campaign and other political purposes, except thru "COMELEC Time," allotted
to the Commission pursuant to Section 92 of the Omnibus Election Code.
I see, however, in the above provisions a faithful compliance and due observance of the language,
intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:
Sec. 4. The Commission [on Elections] 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
right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among
(Emphasis supplied.)
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the
Constitution to be all that adversarial or irreconcilably inconsistent with the right of free expression.
In any event, the latter, being one of general application, must yield to the specific demands of the
Constitution. The freedom of expression concededly holds, it is true, a vantage point in the
hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without
limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the
Commission on Elections to ensure that all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real life to the candidates' right of free
expression rather than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be the best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.
I vote to dismiss the petition.
Melo and Purisima, JJ., concur.
ROMERO, J., dissenting;
A foolish consistency is the hobgoblin of little minds . . . . 1
Not wishing to be held hostage by Emerson's "hobgoblin," I dare to break away from a past
position and encapsulize my ruminations in a dissenting opinion.
When, If At All, May The Court Reverse Itself?

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b) of R.A.
6646 is a reasonable restriction on the freedom of expression guaranteed by the Constitution. 2 Our
six-year experience with the ban on political advertisements, however, constrains me to dissent.
While it is desirable, even imperative, that this Court, in accordance with the principle of stare
decisis, afford stability to the law by hewing to doctrines previously established, said principle was
never meant as an obstacle to the abandonment of established rulings where abandonment is
demanded by public interest and by circumstances. 3 Reverence for precedent simply as precedent
cannot prevail when constitutionalism and public interest demand otherwise. Thus, a doctrine
which should be abandoned or modified should be abandoned or modified accordingly. More
pregnant than anything else is that the court should be right. 4
I submit that our country's past experience in the 1992 and 1995 elections, as well as
contemporary events, has established that Section 11(b) of R.A. 6646 falls short of the rigorous
and exacting standard for permissible limitation on free speech and flee press.
In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section 11(b),
pronouncing the same to be authorized by Article IX(C), Section 4 of the Constitution which reads:
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
agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.
including reasonable, equal rates therefor, for public information campaigns and forms among candidates in
connection with the objective of holding free, orderly, honest, peaceful and credible elections.
Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution, is essentially
an express manifestation of the comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public necessity and upon the right of
the state and the public to self-protection. For this reason, its scope expands and contracts with
changing needs. 5 In the words of Mr. Justice Isagani A. Cruz:
Police power is dynamic, not static, and must move with the moving society it is supposed to regulate.
Conditions change, circumstances vary; and to every such alteration the police power must conform. What
may be sustained as a valid exercise of the power now may become constitutional heresy in the future under a
different factual setting. Old notions may become outmoded even as new ideas are born, expanding or
constricting the limits of the police power. For example, police measures validly enacted fifty years ago against
the wearing of less than sedate swimsuits in public beaches would be laughed out of court in these days of
permissiveness. . . (T)he police power continues to change even as constraints on liberty diminish and private
property becomes more and more affected with public interest and therefore subject to regulation" (Emphasis
ours). 6
Thus, when the temper and circumstances of the times necessitate a review, this Court should not
hesitate to reverse itself, even on constitutional issues; for the legal problems with which society is
beset continually cannot be merely considered in the abstract, but must be viewed in light of the
infinite motley facets of human experience. As aptly stated by Mr. Justice Holmes, "The life of the
law has not been logic: it has been experience."
By way of illustration, we first held, in the celebrated Flag Salute Case, 7 that:
the flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect.
Under a system of complete separation of church and state in the government, the flag is utterly devoid of any
religious significance. Saluting the flag does not involve any religious ceremony. The flag salute is no more a
religious ceremony than the taking of an oath of office by a public official or by a public candidate for admission
to the bar.
xxx xxx xxx
The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have
no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and
demoralize the rest of the school population which by far constitute the great majority.
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority.
The Court further predicted that exempting Jehovah's Witnesses from participating in the flag
ceremony would ultimately lead to a situation wherein:
[T]he flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and patriotism-a pathetic, even tragic situation, and
all because a small portion of the school population imposed its will, demanded and was granted an
exemption.
Thirty-two years later, events caught up with the changing political climate, such that an undivided
Court pronounced, in Ebralinag v. The Division Superintendent of Schools of Cebu 8 that:
the idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to
the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their right to free speech and the free exercise of religious profession and worship.
xxx xxx xxx
The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a
grave and present 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, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of petitioners from the schools is not justified.
The Court held that its earlier prediction of dire consequences had not come to pass. It concluded
that exempting Jehovah's Witnesses from attending flag ceremonies would not produce a nation
"untaught and uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism."
In much the same manner, in the early case of People v. Pomar, 9 the Court struck down as
violative of the freedom of contract, a statute prescribing a thirty-day vacation with pay both before
and after confinement arising from pregnancy. The Court said:
The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms, and conditions
they may deem advisable, provided they are not contrary to law, morals or public policy.
Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled that the
right to contract about one's affairs is a part of the liberty of the individual guaranteed by the due
process clause. The Court also cited the "equality of right" principle, holding that "(i)n all such
particulars the employer and the employee have equality of right, and any legislation that disturbs
that equality is an arbitrary interference with the liberty of contract, which no government can
legally justify in a free land . . . Police power, the Court conceded, is an expanding power; but it
cannot grow faster than the fundamental law of the state . . . If the people desire to have the police
power extended and applied to conditions and things prohibited by the organic law, they must first
amend that law. 10
Sixteen years later, the validity of the above pronouncement was rejected by the Court in Antamok
Goldfields Mining Co. v. CIR, 11 which rationalized its volte-face stance, thus: "(i)n the midst of
changes that have taken place, it may likewise be doubted if the pronouncement made by this
court in the case of People v. Pomar . . . still retains its virtuality as a living principle. The policy of
laissez faire has to some extent given way to the assumption by the government of the right of
intervention even in contractual relations affected with public interests."
Similarly, events subsequent to the Court's ruling in Avelino v. Cuenco 12 impelled the Court to
reverse its original position. In this case, the Court initially refused to take cognizance of the raging
controversy to determine who was the rightful president of the Philippine Senate, ruling that in view
of the separation of powers, the question was a political one not within its jurisdiction. Despite such
a ruling, almost one-half of the members of the Senate refused to acknowledge Mariano Cuenco
as the acting President, as a result of which legislative work came to a standstill. In the words of
Justice Perfecto, "the situation has created a veritable national crisis, and it is apparent that
solution cannot be expected from any quarter other than this Supreme Court. . . . The judiciary
ought to ripen into maturity if it has to be true to its role as spokesman of the collective conscience,
of the conscience of humanity." The Court, thus, assumed jurisdiction over the case, rationalizing
that supervening events justified its intervention.
From the foregoing, it can be seen that the inexorable march of events, and the liberalizing winds
of change may very well signal a needed shift in our conception of the permissible limits of
regulation in the name of police power. Verily, while the validity of NPC v. COMELEC may have
been etched on granite at the time of its promulgation, events subsequent thereto now call into
question the very underpinnings of said ponencia. To my mind, the hoary maxim that "time upsets
many fighting faiths" still holds true, and the Court must be ever resilient and adaptable in order to
meet the protean complexities of the present and future generation.
In NPC v. COMELEC, the Court held that:
(N)o 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 right of free speech and free press. For
supervision or regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a statute is
presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion.
This upends the familiar holding that "any system of prior restraint of expression comes to this
Court bearing a heavy presumption against its constitutional validity, with the Government carrying
a heavy burden of showing justification for the enforcement of such a restraint." 13 This presumption
was even reiterated in the recent case of Iglesia ni Cristo v. CA, 14 wherein we ruled that "deeply
ensconced in our fundamental law is its hostility against all prior restraints on speech . . . Hence,
any act that restrains speech is hobbled by the presumption of invalidity and should be greeted
with furrowed brows. It is the burden of the respondent . . . to overthrow this presumption. If it fails
to discharge this burden, its act of censorship will be struck down." NPC v. COMELEC, insofar as it
bestows a presumption of validity upon a statute authorizing COMELEC to infringe upon the right
of free speech and free press, constitutes a departure from this Court's previous rulings as to
mandate its re-examination.
In this connection, it bears emphasis that NPC v. COMELEC was the product of a divided court,
marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez, and Paras. This fact gains
significance when viewed in light of the changes in the composition of the court. While a change in
court composition, per se, does not authorize abandonment of decisional precedents, it is apropos
to keep in mind the pronouncement by the Court in Philippine Trust Co. and Smith, Bell and Co. v.
Mitchell. 15 which reads as follows:
Is the court with new membership compelled to follow blindly the doctrine of the Velasco case? The rule of
stare decisis is entitled to respect. Stability in the law, particularly in the business field, is desirable. But
idolatrous reverence for precedent, simply as precedent, no longer rules. More important than anything else is
that the court should be right. (Emphasis ours)
Are The Restrictions Imposed by Sec. 11(b) Of R.A.

6646 on Freedom of Expression Valid?
Preliminaries having been disposed of, we proceed to the crux of the matter. Freedom of speech
has been defined as the liberty to know, to utter and to argue freely according to conscience,
above all liberties. It thus includes, not only the right to express one's views, but also other cognate
rights relevant to the free communication of ideas, not excluding the right to be informed on
matters of public concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on the freedom
of expression, to be valid. First, the prohibition is limited in the duration of its applicability and
enforceability to election periods. Precisely, this is what makes the prohibition more odious. It is
imposed during the campaign period when the electorate clamors for more and accurate
information as their basis for intelligent voting. To restrict the same only defeats the purpose of
holding electoral campaigns — to inform the qualified voter of the qualifications of candidates for
public office, as well as the ideology and programs of government and public service they
advocate, to the end that when election time comes, the right of suffrage may be intelligently and
knowingly, if not always wisely, exercised. Opening all avenues of information to the estimated
36.4 million voters is crucial for their intelligent exercise of the right of suffrage in the May 11 polls,
considering that they will be voting for an average of thirty elective positions. 16
Second, the prohibition is of limited application, as the same is applied only to the purchase and
sale of print space and air time for campaign or other political purposes. "Section 11(b) does not
purport in any way to restrict the reporting by newspapers or radio or television stations of news or
newsworthy events relating to candidates, their qualifications, political parties and programs of
government." It does not reach commentaries and expressions of belief or opinion by reporters or
broadcasters or editors or commentators or columnists in respect of candidates, their
qualifications, and programs and so forth. To be sure, newspapers, radio, and television stations
may not be restricted from reporting on candidates, their qualifications, and programs of
government, yet, admittedly, the freedom of expression of the candidates themselves in the
manner they choose to, is restricted. Candidates are thereby foreclosed from availing of the
facilities of mass media, except through the filtering prism of the COMELEC.
Not to be overlooked is the stark truth that the media itself is partisan. In a study 17 commissioned
by the COMELEC itself to determine whether certain newspapers adhered to the principles of
fairness and impartiality in their reportage of the presidential candidates in the 1992 elections, the
results disclosed that newspapers showed biases for or against certain candidates. Hence, the
contention that "Section 11(b) does not cut off the flow of media reporting, opinion or commentary
about candidates, their qualifications and platforms and promises" simply is illusory. Editorial policy
will always ensure that favored candidates receive prominent coverage while less favored ones will
get minimal exposure, if at all. This underscores the need to give candidates the freedom to
advertise, if only to counteract negative reporting with paid advertisements, which they cannot
have recourse to with the present prohibition. Worse, the ban even encourages corruption of the
mass media by candidates who procure paid hacks, masquerading as legitimate journalists, to sing
them paeans to the high heavens. Wittingly or unwittingly, the mass media, to the detriment of poor
candidates, occasionally lend themselves to the manipulative devices of the rich and influential
candidates.
Finally, it is alleged that while Section 11(b) prohibited the sale or donation by mass media of print
space or air time for campaign or other political purposes, COMELEC, by way of exception, was
mandated to purchase print space or air time, which space and time it was required to allocate,
equally and impartially, among the candidates for public office. Hence, whatever limitation was
imposed by Section 11(b) upon the right to free speech of the candidates was found not to be
unduly repressive or unreasonable inasmuch as they could still realize their objective as long as it
was coursed through COMELEC. COMELEC it was that shall decide what, who, which media to
employ and the time allocation for the candidates who signify their desire to avail of the agency's
air time and print space. Why accord to COMELEC such powers in the name of supervision and
regulation at the expense of the constitutionally hallowed freedom of expression?
Given the conditions then prevailing, the Court's ruling in NPC v. COMELEC may have been valid
and reasonable; yet today, with the benefit of hindsight, it is clear that the prohibition has become a
woeful hindrance to the exercise by the candidates of their cherished right to free expression and
concomitantly, a violation of the people's right to information on matters of public concern. As
applied, it has given an undue advantage to well-known popular candidates for office.
In the hierarchy of fundamental civil liberties, the right of free expression occupies a preferred
position, 18 the sovereign people recognizing that it is indispensable in a free society such as ours.
Verily, one of the touchstones of democracy is the principle that free political discussion is
necessary if government is to remain responsive to the will of the people. It is a guarantee that the
people will be kept informed at all times sufficiently to discharge the awesome responsibilities of
sovereignty.
Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or
privilege of free speech and publication has its limitations, the right not being absolute at all times
and under all circumstances. For freedom of speech does not comprehend the right to speak
whenever, however, and wherever one pleases, and the manner, and place, or time of public
discussion can be constitutionally controlled. 19
Still, while freedom of expression may not be immune from regulation, it does not follow that all
regulation is valid. Regulation must be reasonable as not to constitute a repression of the freedom
of expression. First, it must be shown that the interest of the public generally, as distinguished from
that of a particular class requires such regulation. Second, it must appear that the means used are
reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals.
As to the first, in NPC v. COMELEC, this Court declared that the ban on political advertising aims
to assure equality of opportunity to proffer oneself for public service by equalizing, as far as
practicable, the situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests."
While there can be no gainsaying the laudable intent behind such an objective, the State being
mandated to guarantee equal access to opportunities for public service, the prohibition has had the
opposite effect. Instead of "equalizing" the position of candidates who offer themselves for public
office, the prohibition actually gives an unfair advantage to those who have had wide media
exposure prior to the campaign period. Instead of promoting the interests of the public in general,
the ban promotes the interest of a particular class of candidates, the prominent and popular
candidates for public office. What is in store for the relatively obscure candidate who wants to
pursue his candidacy? Eager to trumpet his credentials and program of government, he finds
himself barred from using the facilities of mass media on his own. While incumbent government
officials, show business personalities, athletes and prominent media men enjoy the advantage of
name recall due to past public exposure, the unknown political neophyte has to content himself
with other fora, which, given the limited campaign period, cannot reach the electorate as effectively
as it would through the mass media. To be sure, the candidate may avail himself of "COMELEC
Space" and "COMELEC Time," but the sheer number of candidates does not make the same an
effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral
Argument held by the Court en banc, admitted that no candidate has as yet applied for COMELEC
air time and space.
More telling, the celebrities are lavished with broader coverage from newspapers, radio and
television stations, as well as via the commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or columnists, as they are deemed more
newsworthy by media, thus generating a self-perpetuating cycle wherein political unknowns, who
may be more deserving of public office, campaign in relative obscurity compared to their more
popular rivals. Instead of equalizing opportunities for public service, the prohibition not only
perpetuates political inequality, but also invidiously discriminates against lesser-known candidates.
While Article IX(C), Section 10 of the Constitution provides that "(b)ona fide candidates for any
public office shall be free from any form of harassment and discrimination," Article IX(C), Section 4
is nothing if not antithetical to the former provision as, in its application, it is productive of a
situation wherein political neophytes are blatantly discriminated against. Much as we recognize the
basic canon in Constitutional construction that the Constitution must be interpreted in such a way
as to harmonize all its provisions if the Charter is to be construed as a single, comprehensive
document and not as a series of disjointed articles or provisions, the predictable effect is for one
provision to negate the other.
As to the second requisite, experience shows that the ban on political advertisements has not been
reasonably necessary to accomplish its desired end. First, there are more than 70 provinces, more
than 60 cities and more than a thousand municipalities spread all over the archipelago. Previous
elections have shown that the ban on political advertising forces a candidate to conduct a
nationwide whistle-stop campaign to attain maximum exposure of his credentials and his program
of government. Obviously, this necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of 90 days. Given the enormous
logistics needed for such a massive effort, what are the chances for an impecunious candidate
who sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority of the populace more than
other instruments of information and dissemination, being the most pervasive, effective, and
inexpensive. A 30-second television advertisement, costing around P35,000.00 at present rates,
would, in an instant, reach millions of viewers around the country in the comfort of their homes.
Indeed, the use of modern mass media gives the poor candidate the opportunity to make himself
known to the electorate at an affordable cost. Yet, these means of communication are denied such
candidates due to the imagined apprehension that more affluent candidates may monopolize the
airwaves. This fear, however, need not materialize as the COMELEC is precisely empowered to
regulate mass media to prevent such a monopoly. Likewise, the ceiling on election spending
imposed by law upon all candidates, regardless, will also serve as a deterrent.
Second, the means employed is less than effective, for with or without the ban, moneyed
candidates, although similarly barred from buying mass media coverage, are in a position to lavish
their funds on other propaganda activities which their lesser-endowed rivals can ill-afford.
Furthermore, we take judicial notice of the inability of COMELEC to enforce laws limiting political
advertising to "common poster areas." Many places in cities have been ungainly plastered with
campaign materials of the better off candidates. What use is there in banning political
advertisements to equalize the situation between rich and poor candidates, when the COMELEC
itself, by its failure to curb the political excesses of candidates, effectively encourages the
prevailing disparities? Why then single out political advertising? What is the reasonable necessity
of doing so?
To be realistic, judicial notice must be taken of the fact that COMELEC, in narrowing down its list of
"serious" candidates, considers in effect a candidate's capability to wage an effective nationwide
campaign — which necessarily entails possession and/or availability of substantial financial
resources. Given this requirement, the objective of equalizing rich and poor candidates may no
longer find relevance, the candidates ultimately allowed to run being relatively equal, as far as
resources are concerned. Additionally, the disqualification of nuisance candidates, allegedly due to
their inability to launch serious campaigns, itself casts doubt on the validity of the prohibition as a
means to achieve the state policy of equalizing access to opportunities for public service. If poor
and unknown candidates are declared unfit to run for office due to their lack of logistics, the
political ad ban fails to serve its purpose, as the persons for whom it has been primarily imposed
have been shunted aside and thus, are unable to enjoy its benefits.
It must be kept in mind that the holding of periodic elections constitute the very essence of a
republican form of government, these being the most direct act and participation of a citizen in the
conduct of government. In this process, political power is entrusted by him, in concert with the
entire body of the electorate, to the leaders who are to govern the nation for a specified period. To
make this exercise meaningful, it is the duty of government to see to it that elections are free and
honest and that the voter is unhampered by overt and covert inroads of fraud, force and corruption
so that the choice of the people may be untrammelled and the ballot box an accurate repository of
public opinion. And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation, health, public
discussion, private animosities, the weather, the threshold of a voter's resistance to pressure —
the utmost ventilation of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly
reflect the will of the electorate.
With the prohibition on political advertisements except through the Comelec space and time, how
can a full discussion of men, issues, ideologies and programs be realized? Article III, Section 4 of
the Constitution provides that "(n)o law shall be passed abridging the freedom of speech, of
expression, of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances." Implicit in this guarantee is the right of the people to speak
and publish their views and opinions on political and other issues, without prior restraint and/or fear
of subsequent punishment. Yet Section 11(b), by authorizing political advertisements only via the
COMELEC effectively prevents the candidates from freely using the facilities of print and electronic
mass media to reach the electorate. A more blatant form of prior restraint on the free flow of
information and ideas can hardly be imagined. To be sure, it does not constitute an absolute
restriction, but it is restriction nonetheless, as odious and insidious as any that may be conceived
by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political advertisements on radio and
television would not endanger any substantial public interest. Indeed, allowing advertisements
would actually promote public interest by furthering public awareness of election issues. The
objective, equalizing opportunities for public service, while of some immediacy during election
times, does not justify curtailing the citizen's right of free speech and expression.
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. For these reasons, any
attempt to restrict these 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. 20
No such clear and present danger exists here as to justify banning political advertisements from
radio and television stations.
Past experience shows that the COMELEC has been hard put effectively informing the voting
populace of the credentials, accomplishments, and platforms of government of the candidates.
There are 17,396 national and local elective public positions 21 which will be contested by an
estimated 100,000 candidates 22 on May 11, 1998. For national positions, the list has been trimmed
down to 11 candidates for president, 9 candidates for vice-president, and 40 candidates for
senator. It is difficult to see how the number of candidates can be adequately accommodated by
"COMELEC Space" and "COMELEC Time." Resolution No. 2983 of the COMELEC, issued in
compliance with Section 92 of B.P. 881, mandates that at least thirty minutes or prime time be
granted to the Commission, free of charge, from February 10, 1998 until May 9, 1998. 23 Thirty
minutes of prime-time for eighty-nine days (89) is scarcely enough time to introduce candidates to
the voters, much less to properly inform the electorate of the credentials and platforms of all
candidates running for national office. Let us be reminded that those running for local elective
positions will also need to use the same space and time from March 27 to May 9, 1998, and that
the COMELEC itself is authorized to use the space and time to disseminate vital election
information. 24 Clearly, "COMELEC Space" and "COMELEC Time" sacrifices the right of the
citizenry to be sufficiently informed regarding the qualifications and programs of the candidates.
The net effect of Section 11(b) is, thus, a violation of the people's right to be informed on matters of
public concern and makes it a palpably unreasonable restriction on the people's right to freedom of
expression. Not only this, the failure of "Comelec Space" and "Comelec Time" to adequately inform
the electorate, only highlights the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich and poor candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisements are allowed in
fora other than modern mass media, thus: "aside from Section 11(b) of R.A. 6646 providing for
'COMELEC Space' and 'COMELEC Time,' Sections 9 and 10 of the same law afford a candidate
several venues by which he can fully exercise his freedom of expression, including freedom of
assembly." A concurring opinion points to the mandate of COMELEC to encourage non-political,
non-partisan private or civic organizations to initiate and hold in every city and municipality, public
fora at which all registered candidates for the same office may participate in, the designation of
common poster areas, the right to hold political caucuses, conferences, meetings, rallies, parades,
and other assemblies, as well as the publication and distribution of campaign literature. All these
devices conveniently gloss over the fact that for the electorate, as shown in surveys by the Ateneo
de Manila University's Center for Social Policy and Public Affairs, mass media remains to be the
most important and accessible source of information about candidates for public office.
It must be borne in mind that the novel party-list system will be implemented in the impending
elections. The party-list system, an innovation introduced by the 1987 Constitution in order to
encourage the growth of a multi-party system is designed to give a chance to marginalized sectors
of society to elect their representatives to the Congress. A scheme aimed at giving meaningful
representation to the interests of sectors which are not adequately attended to in normal legislative
deliberations, it is envisioned that system will encourage interest in political affairs on the part of a
large number of citizens who feel that they are deprived of the opportunity to elect spokesmen of
their own choosing under the present system. It is expected to forestall resort to extra-
parliamentary means by minority groups which would wish to express their interests and influence
governmental policies, since every citizen is given a substantial representation. 25
Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas worker
and professional sectors 26 will have the opportunity to elect representatives to Congress. With the
prohibition on political advertisements, however, those parties who wish to have their candidates
elected as sectoral representatives, are prevented from directly disseminating their platforms of
government through the mass media. The ban on political advertisements thus serves as a
deterrent to the development of self-reliance, self-development, logistical and organizational
capability on the part of sectoral parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the chance of consolidating a
mass base sorely needed for a fair chance of success in a highly competitive political exercise.
Likewise, with the inability of the candidates to reach the sectors they seek to represent, the right
of the people belonging to these sectors to be informed on matters of concern to them is likewise
violated. 27
Finally, NPC v. COMELEC invokes the specter of the "captive audience" to justify its stand against
political advertisements. Describing political advertisements as "appealing to the non-intellective
faculties of the captive and passive audience," it says that anyhow, the only limitation imposed by
Section 11(b) upon the free speech of candidates is on their right to bombard the helpless
electorate with paid advertisements commonly repeated in the mass media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the like, it is not
for this Court to determine what the people may or may not watch or read. Even "mind-numbing"
political advertisements are subject to the constitutional safeguard of due process.
Freedom Of Speech Expression Remains A Fresh

and Vital Verity
The guarantee of the freedom of speech which has been defined by Wendell Phillips as "the
instrument and guarantee and the bright and consummate flower of all liberty," has always been
granted a predominant status in the hierarchy of individual rights. 28 It is founded on the belief that
the final end of the state was to make men free to develop their faculties and that freedom to think
as you will and to speak as you think are means indispensable to the discovery and spread of
political truth. 29 Its purpose is to preserve an uninhibited marketplace of ideas where truth will
ultimately prevail. 30 "An individual who seeks knowledge and truth must hear all sides of the
question, consider all alternatives, test his judgment by exposing it to opposition and make full use
of different minds. Discussion must be kept open no matter how certainly true an accepted opinion
may be; many of the most widely accepted opinions have turned out to be erroneous. Conversely,
the same principles apply no matter how false or pernicious the new opinion may be; for the
unaccepted opinion may be true and partially true; and even if false, its presentation and open
discussion compel a rethinking and retesting of the accepted opinion. 31 As applied to instant case,
this Court cannot dictate what the citizen may watch on the ground that the same appeals only to
his non-intellective faculties or is mind-deadening and repetitive. A veritable "Big Brother" looking
over the shoulder of the people declaring: "We know better what is good for you," is passé.
As to the puerile allegation that the same constitutes invasion of privacy, making the Filipino
audience a "captive audience," the explosive growth of cable television and AM/FM radio will belie
this assertion. Today, the viewing population has access to 12 local TV channels, 32 as well as
cable television offering up to 50 additional channels. To maintain that political advertisements
constitute invasion of privacy overlooks the fact that viewers, with the surfeit of channels, can
easily skip to other TV channels during commercial breaks — a fact which, coupled with the now
ubiquitous remote control device, has become the bane of advertisers everywhere.
The line between gaining access to an audience and forcing the audience to hear is sometimes
difficult to draw, leaving the courts with no clearcut doctrine on issues arising from this kind of
intrusion. This is specially true in cases involving broadcast and electronic media. The US cases
cited as authorities on the captive audience phenomenon, which, incidentally, did not involve the
issue of election campaigns, 33 provide little guidance as to whether freedom of speech may be
infringed during the campaign period for national elections on account of the individual's right to
privacy. 34 Prudence would dictate against an infringement of the freedom of speech if we are to
take into consideration that an election campaigns is as much a means of disseminating ideas as
attaining political office 35 and freedom of speech has its fullest and most urgent application to
speech uttered during election campaigns. 36 In Buckley v. Valeo, a case involving the
constitutionality of certain provisions of the Federal Election Campaign Act, the United States
Supreme Court per curiam held that:
the concept that the government may restrict the speech of some elements in our society in order to enhance
the relative voice of the others is wholly foreign to the First Amendment which was designed to "secure the
widest possible dissemination of information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the people. (emphasis
supplied) 37
The fear that the candidates will bombard the helpless electorate with paid advertisements, while
not entirely unfounded, is only to be expected considering the nature of political campaigns. The
supposition however that "the political advertisements which will be "introjected into the electronic
media and repeated with mind deadening frequency" are commonly crafted not so much to inform
and educate as to condition and manipulate, not so much to provoke rational and objective
appraisal of candidates' qualifications or programs as to appeal to the intellective faculties of the
captive and passive audience" is not a valid justification for the infringement of so paramount a
right granted by the Constitution inasmuch as it is the privilege of the electorate in a democratic
society to make up their own minds as to the merit of the advertisements presented. The
government derives its power from the people as the sovereign and it may not impose its
standards of what is true and what is false, what is informative and what is not for the individual
who, as a "particle" of the sovereignty is the only one entitled to exercise this privilege.
Government may regulate constitutionally protected speech in order to promote a compelling

interest if it chooses the least restrictive means to further the said interest without unnecessarily
interfering with the guarantee of freedom of expression. Mere legislative preference for one rather
than another means for combating substantive evils may well be an inadequate foundation on
which to rest regulations which are aimed at or in their operation diminish the effective exercise of
rights so necessary to maintenance of democratic institutions. 38
It should be noted that legislature has already seen fit to impose a ceiling on the candidates' total
campaign expenditures 39 and has limited the political campaign period to 90 days for candidates
winning for national office and 60 days for congressmen and other local officials. With these
restrictions, it cannot be gainsaid that the constitutional provision on social justice has been
sufficiently complied with. We see no reason why another restriction, must be imposed which only
burdens the candidate and voters alike. To make matters worse, we are not even certain as to the
efficacy of the "ad ban" in curtailing the feared consequences of the object of its restriction. Of
course, this is not to say that the law is being struck down as unconstitutional mainly because it is
efficacious or inefficacious. If this is the only issue which confronts us, there would have been no
need to give due course to the petition inasmuch as we would be inquiring as to the wisdom of the
law and treading into an area which rightfully belongs to the legislature. Verily, courts cannot run a
race of opinions upon points of right, reason and expediency with the law-making power. 40
Freedom of Expression Incompatible With Social Justice?
The constitutional question at hand is not just a simple matter of deciding whether the "ad ban" is
effective or ineffective in bridging the financial disparity between the rich and poor candidates. Sec
11(b) of RA No. 6646 strikes at the very core of freedom of expression. It is unconstitutional not
because we are uncertain as to whether it actually levels the playing field for the candidates but
because the means used to regulate freedom of expression is on all points constitutionally
impermissible. It tells the candidates when, where and how to disseminate their ideas under pain
of punishment should they refuse to comply. The implications of the ban are indeed more complex
and far reaching than approximating equality among the rich and poor candidates.
The primacy accorded the freedom of expression is a fundamental postulate of our constitutional
system. The trend as reflected in Philippine and American decisions is to recognize the broadest
scope and assure the widest latitude to this guaranty. It represents a profound commitment to the
principle that debate of public issue should be uninhibited, robust and wide open and may best
serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions
as they are or even stirs people to anger. 41
The repression of expression in an attempt to level the playing field between the rich and the poor
candidates is not only unrealistic but goes beyond the permissible limits of freedom of expression
as enshrined in the constitution. Social justice is a laudable objective but it should not be used as a
means to justify infringement of the freedom of expression if it can be achieved by means that do
not unnecessarily trench on the individual's fundamental right. The case of Guido v. Rural
Progress Administration, 42 is particularly enlightening. In said case, we had occasion to state that:
Hand in hand with the announced principle, herein invoked, that "the promotion of social justice to insure the
well being and economic security of all people should be the concern of the state", is a declaration with which
the former should be reconciled, that "the Philippines is a Republican state" created to secure to the Filipino
people "the blessings in independence under a regime of justice, liberty and democracy." Democracy as a way
of life enshrined in the Constitution, embraces as its necessary components freedom of conscience, freedom
of expression, and freedom in pursuit of happiness. . . . Social justice does not champion division of property
or equality of economic status; what it and the Constitution do guarantee are equality of economic opportunity,
equality of political rights, equality before the law, equality between values given and received . . .
While we concede the possibility that the rich candidates may dominate the airwaves to the
detriment of the poor candidates, the latter should not be prevented from replying. While they may
be restricted on account of their financial resources, they are not denied access to the media
altogether. This is what is meant by the phrase "equal time, space, equal opportunity and the right
of reply" under Article IX (C)(4) of the 1987 Constitution which was inserted by the framers of the
Constitution as a reaction to a 1981 ruling of the Supreme Court that when the president speaks
over radio or television, he speaks not as representative of his party but of the people and
therefore opposition parties have no right to demand equal time. 43
It is ironic that the guarantee of freedom of expression should be pitted against the constitutional
provision on social justice because the freedom of speech is the most potent instrument of public
opinion, not to speak of its being the most effective weapon for effecting political and social
reforms. Certainly, an infringement of the freedom of speech in a less than heroic attempt at
attaining social justice cannot be countenanced, for in the ultimate analysis social justice cannot
flourish if the people's right to speak, to hear, to know and ask for redress of grievances is watered
down.
A word on the intervenors' argument that Resolution No. 2983, Section 2, insofar as it directs every
radio broadcasting and television station to provide COMELEC with air time free of charge
constitutes taking of private property for public use without just compensation. The COMELEC,
anticipating its vulnerability to said challenge passed Resolution 2983-A on March 3, 1998
requiring that it pay just compensation for its COMELEC time.
Buckley vs. Valeo and Existing US Jurisprudence
The novelist George Orwell once said, "In a society in which there is no law, and in theory no
compulsion, the only arbiter of behavior is public opinion. But public opinion, because of the
tremendous urge to conformity in gregarious animals, is less tolerant than any other system of
law." For want of legislature to equalize the playing field between the rich and the poor candidates,
it has, by imposing a complete prohibition on paid political advertisements, burned down a house
to roast a pig. For fear of accusations that it might be treading into an area which rightfully belongs
to the legislature, the Court today, by sanctioning an unnecessary infringement on the freedom of
speech, has unwittingly allowed the camel's nose into the tent.
My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked the thrust of
our dissenting opinion when we quoted the case of Buckley v. Valeo. 44 Lest we be misunderstood,
we have in no way relied on the Buckley v. Valeo case for the grant of the instant petition
inasmuch as it has never escaped our notice that legislature has already seen fit to impose a
ceiling on the candidates' total campaign expenditures 45 Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why another restriction must be
imposed on the constitutional guarantee of freedom of speech which only burdens the candidates
and electorates alike when legislature has already taken steps to comply with the constitutional
provision on social justice by imposing a ceiling on the candidates' total campaign expenditures
and limiting the campaign period to 90 days for candidates running for national office and 60 days
for congressmen and other local officials. We have mentioned Buckley if only to underscore the
fact that due to the primacy accorded to freedom of speech, courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political content. To preserve the
sanctity of the status accorded to the said freedom, the US Supreme Court has, in fact, gone as far
as invalidating a federal law limiting individual expenditures of candidates running for political
office.
In any case, to address some misconceptions about existing jurisprudence on the matter, we now
present a brief discussion on Buckley and the preceding US cases. In the case of Buckley v.
Valeo, a divided US Supreme Court, per curiam held that a federal law limiting individual
contributions to candidates for office served the state's compelling interest in limiting the actuality
and appearance of corruption. However a law limiting expenditures by candidates, individuals and
groups was held unconstitutional. The rationale for the dichotomy between campaign expenditures
and contributions has been explained in this wise — campaign contributions are marginal because
they convey only an undifferentiated expression of support rather than the specific values which
motivate the support. Expenditures, on the other hand, as directly related to the expression of
political views, are on a higher plane of constitutional values. The Court, in noting that a more
stringent justification is necessary for legislative intrusion into protected speech said, "A restriction
on the amount of money a person or a group can spend on political communication necessarily
reduces the quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually every means of
communicating in today's mass society requires the expenditure of money." 46
A more discerning scrutiny of the US cases following Buckley, would show that while Buckley has
been widely criticized, it has, to date, never been modified, much less discredited. In California
Medical Association vs. FEC, 47 a law limiting the amount an incorporated association can
contribute to a multi-candidate political committee was upheld. The spending was viewed not as
independent political speech but rather as "speech by proxy," hence, the spending was deemed
analogous to group contributions which can be regulated.
In FEC vs. National Conservative Political Action Comm. 48 the US Supreme Court invalidated a
section of the Presidential Election Campaign Fund Act which makes it a criminal offense for an
independent political committee to spend more than $1,000 to further the election of a presidential
candidate who elects public funding. National Conservative Political Action Committee (NCPAC)
and the Fund for a Conservative Majority (FCM), two political action committees or PAC's, solicited
funds in support of President Reagan's 1980 presidential campaign. The PAC's spent these funds
on radio and television advertising in support of Reagan. The Court, relying on Buckley v. Valeo
and the distinction it drew between expenditures and contributions, held that the independent
expenditures of the political committees were constitutionally protected for they "produce speech at
the core of the First Amendment" necessitating a "rigorous standard of review." Justice Rehnquist,
for the court, likened the restriction to allowing a speaker in a public hall to express his views while
denying him use of the amplifier. As in Buckley, independent expenditures, not coordinated with
candidates' political campaign, were seen as presenting a lesser danger of political quid pro quos.
The Court then proceeded to reject efforts to support the statutory limitation on expenditures on the
basis of special treatment historically accorded to corporations inasmuch as the terms of the
Campaign Fund Act "apply equally to an informal neighborhood group that solicits contributions
and spends money on a presidential election campaign as to the wealthy and professionally
managed PAC's."
In the case of FEC v. Massachussets Citizens for Life (MCFL), 49 a provision of the Federal Election
Campaign Act prohibiting direct expenditure of corporate funds to a non-profit, voluntary political
association concerned with elections to public office was struck down as unconstitutional. No
compelling government interest was found to justify infringement of protected political speech in
this case where a small voluntary political association, which had no shareholders and was not
engaged in business, refused to accept contributions from either business corporations or labor
unions.
In Austin v. Michigan Chamber of Commerce, 50 the case cited by Justice Puno, a Michigan statute
prohibiting corporations from making campaign contributions from their general treasury funds to
political candidates was held not to violate the first amendment even though the statute burdened
expressive activity mainly because the statute was sufficiently narrowed to support its goal in
preventing political corruption or the appearance of undue influence — it did not prohibit all
corporate spending and corporations were permitted to make independent expenditures for
political purposes from segregated funds but not from their treasuries. Notably, the non profit
corporation involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as
the Chamber of Commerce), lacked three of the distinctive features of MCFL, the organization
involved in the FEC vs. National Conservative Political Action Comm 51 case, namely: (1) The
Chamber of Commerce, unlike MCFL, was not formed just for the purpose of political expression
(2) The members of the Chamber of commerce had an economic reason for remaining with it even
though they might disagree with its politics and (3) The Chamber of Commerce, unlike MCFL, was
subject to influence from business corporations which might use it as a conduit for direct spending
which would pose a threat to the political marketplace.
From the foregoing, it should be obvious that Austin in fact supports the holding in Buckley v.
Valeo and "refines" it insofar as as it allows the regulation of corporate spending in the political
process if the regulation is drawn with sufficient specificity to serve the compelling state interest in
reducing the threat that "huge corporate treasuries" will distort the political process and influence
unfairly the outcome of elections.
The ad ban, undoubtedly, could hardly be considered as a regulation drawn with sufficient
specificity to serve compelling governmental interest inasmuch as it imposes a complete
prohibition on the use of paid political advertisements except through Comelec time and space
despite the fact that Congress has already seen fit to impose a ceiling on the candidates' total
campaign expenditures. While it seems a rather fair proposition that Congress may regulate the
misuse of money by limiting the candidates' total campaign expenditures, it seems a rather curious
supposition that Congress through the ad ban can regulate the misuse of money by telling the
candidates how, when and where to use their financial resources for political campaigns.
Obviously, it is one thing to limit the total campaign expenditures of the candidates and another to
dictate to them as to how they should spend it.
Freedom of expression occupies a preferred position in the hierarchy of human values. The priority
gives the liberty a sanctity and a sanction not permitting dubious intrusions and it is the character
of the right, not the limitation which determines what standard governs the choice. 52 Consequently,
when the government defends a regulation on speech as a means to redress past harm or prevent
anticipated harm, it must do more than simply "posit the existence of the disease sought to be
cured. 53 It must demonstrate that the recited harms are real, not merely conjectural and that the
regulation will alleviate these harms in a material way. 54
As earlier pointed out, legislature has already seen fit to impose a ceiling on the total campaign
expenditures of the candidates and has limited the campaign period for 90/60 days. We see no
reason why another restriction must be imposed which only burdens the candidates and voters
alike. The fact alone that so much time has been devoted to the discussion as to whether the ad
ban does in fact level the playing field among the rich and poor candidates should be a strong
indication in itself that it is a dubious intrusion on the freedom of expression which should not be
countenanced.
Illegitimate and unconstitutional practices make their initial foothold by furtive approaches and
minimal deviations from legal modes of procedure. Hence, courts must be extremely vigilant in
safeguarding the fundamental rights granted by the Constitution to the individual. Since freedom of
expression occupies a dominant position in the hierarchy of rights under the Constitution, it
deserves no less than an exacting standard of limitation. Limitations on the guarantee must be
clearcut, precise and, if needed readily controllable, otherwise the forces that press towards
curtailment will eventually break through the crevices and freedom of expression will become the
exception and suppression the rule. 55 Sadly, the much vaunted ad ban failed to live up to such
standard and roseate expectations.
Freedom of Expression In Historical Context

At this juncture, as we celebrate the Centennial of our Philippine Independence, it is timely to call
to mind that wars and revolutions have been fought, not only in our shores and in our time, but in
centuries past, halfway around the globe to keep these subject rights inviolate. To stretch our
memories, Spain's adamant denial of basic freedoms to our hapless forefathers, among others,
sparked the Philippine revolution. Jose Rizal, in "Filipinas Despues de Cien Años" 56 described the
reform a sine quibus non, saying, "The minister, . . . who wants his reforms to be reforms, must
begin by declaring the press in the Philippines free." The Filipino propagandists who sought refuge
in the freer intellectual climate of Spain invariably demanded "liberty of the press, of cults, and of
associations 57 through the columns of "La Solidaridad."
One of the more lofty minds unleashed his fierce nationalistic aspirations though the novels Noli
Me Tangere and El Filibusterismo, necessarily banned from the author's native land. Eventually,
the seeds of these monumental works ignited the flame of revolution, devouring in the process its
foremost exponent, albeit producing a national hero, Jose Rizal. The mighty pen emerged
victorious over the colonizers' sword.
The Malolos Constitution, approved before the turn of century on January 20, 1899, enshrined
freedom of expression in Article 20 of its Bill of Rights, thus:
Article 20 Neither shall any Filipino be deprived:
1. Of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other
similar means. 58
This right, held sacrosanct by the Filipino people and won at the cost of their lives found its way
ultimately in the Constitutions of a later day, reenforced as they were, by the profound thoughts
transplanted on fertile soil by libertarian ideologies. Why emasculate the freedom of expression
now to accord a governmental agency a power exercisable for a limited period of time for the
dubious purpose of "equalizing" the chances of wealthy and less affluent candidates?
In summary, I hold that Section 11(b) of R.A. 6646, in the six years that have elapsed since it was
upheld as being in consonance with the fundamental law, has now become out of sync with the
times and, therefore, unreasonable and arbitrary, as it not only unduly restrains the freedom of
expression of candidates but corollarily denies the electorate its fullest right to freedom of
information at a time when it should flourish most.
For the reasons stated above, I VOTE to declare Section 11(b) of R.A. 6646
UNCONSTITUTIONAL.
Quisumbing and Purisima, JJ., dissent.
PANGANIBAN, J., dissenting;
The Court, by a majority vote, decided to uphold the ban on political advertising, as provided,
under Section 11(b) 1 of RA 6646, and to reiterate the 1992 ruling in National Press Club vs.
Comelec 2 for two main reasons:
1. To equalize "as far as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by huge campaign 'war
chests.'" In other words, the intention of the prohibition is to equalize the "political playing
field" for rich and poor candidates.
2. While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and of
access to mass media of the candidates themselves," the Court justifies the ad ban by
alleging that: (a) it is limited, first, in its "duration," (i.e. the ban applies only during the
"election period") and, second, in its "scope" (i.e. the prohibition on the sale and the
donation of print space and air time covers only those for "campaign and other political
purposes", time does not restrict the legitimate reporting of news and opinions by media
practitioners who are not candidates); and (b) the Comelec is authorized to procure, by
purchase or donation, media time and space which are to be fairly, freely and equally
distributed among the candidates. Otherwise stated, the grant of Comelec time and space,
free of charge, to said candidates makes up for the admitted infringement of the
constitutional right to free speech and access to mass media during the campaign period.
With all due respect, I disagree with the majority's view and join the stirring Dissenting Opinions of
Justices Hugo E. Gutierrez, Jr., 3
Isagani A.
Cruz and Edgardo L. Paras in NPC vs. Comelec, and of Justice Flerida Ruth P. Romero in the
4 5
present case. I will no longer repeat their cogent legal arguments. Let me just add my own.
1. Ad Ban Not Pro-Poor

but Anti-Poor
The majority argues that the ad ban is pro-poor, because it prevents the rich from buying media
time and space which the poor cannot afford or match. This argument assumes that media
advertising is expensive and, thus, beyond the reach of the poor.
I respectfully submit that such argument is bereft of factual basis. True, a full-page ad in a major
broadsheet 6 may be priced at about P100,000; a 30-second commercial in a major television
channel, 7 anywhere from P15,000 to P90,000 depending on the time and the program; while air
time of an equal duration in a leading radio station, anywhere from P300 to P4,500. 8 But even with
such price tags, media ads are not necessarily expensive, considering their nationwide reach,
audience penetration, effectiveness and persuasive value.
Realistically, expenses are involved in a candidacy for a national office like the presidency, the vice
presidency, and the senate. In recognition of this, the law has limited campaign expenditures to ten
pesos (P10) for every voter in the case of candidates for president and vice president, and three
pesos (P3) per voter in their constituencies, for other candidates. 9 Anyone — whether rich or poor
— who aspires for such national elective office must expect to spend a considerable sum, whether
of his own or from allowable donations, to make himself and his platform or program of
government known to the voting public.
Media Ads
Comparatively Cheaper
While a one-page black-and-white ad in a major daily costs about P100,000, it is replicated,

however, in about 250,000 copies 10 circulated to an equal number of offices and households
nationwide on the very same day of its publication. Each newspaper copy has an average
readership of six. Hence, the ad is exposed to about 1.5 million (250,000 x 6) people all over the
country. Consider, too, that people discuss what they read while they congregate in barber shops,
corner stores, and other places where people gather. Sometimes, radio and TV broadcasters pick
up and comment on what they read in newspapers. So, the reach, pass-on readership, multiplier
effect and effectivity of a broadsheet ad are practically immeasurable.
On the other hand, let us consider the alternative of printing and distributing a poster or handbill of
similar size. The actual printing cost of such handbill on newsprint is twenty centavos (P.20) per
copy. 11 The cost of P250,000 copies (the circulation of a major daily) would thus be P50,000
(250,000 x P.20). But that is only the printing cost. To disseminate these handbills nationwide on
the same day of printing without the distribution network of a major newspaper is almost
impossible. Besides, the cost would be horrendous. To approximate the circulation of a major
newspaper, the most practical substitute would be the mails. Ordinary mail is now P4.00 per
posting. Hence, the distribution cost through the mails would be P1 million (250,000 copies x
P4.00). And this does not include the manual work and cost of sorting, folding and individually
addressing these 250,000 pieces of mail matter. (This alternative assumes the availability of a
mailing list equivalent to the reach of a newspaper.) Even if third-class mail is used, the distribution
cost alone will still be P3.00 per individual mailing, or P750,000 for all 250,000 copies. 12
This alternative is not only much more expensive but much less effective as well, because it has
no guarantee of same-day delivery, has a diminished readership multiplier effect and is
tremendously cumbersome in terms of sorting and distribution.
Furthermore, a candidate need not buy one-page ads. He can use quarter-page ads at one fourth
the cost or about P25,000 only per issue. To be effective in his ad campaign, he may need to
come out once every three days (to be spread out among the different dailies) or 30 times during
the 90-day campaign period 13 for national candidates. Hence, he will spend, for the entire duration
of the campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a one-fourth page ad at
least 30 times in various major dailies, a candidate needs to spend only P750,000 — an amount
less than the alternative of printing and distributing nationwide ONLY ONCE a less timely and less
effective equivalent leaflet or poster.
A similar detailed comparison of cost-benefit could be written for radio and television. While, at
initial glance, the rates for these electronic media may appear high, still they could be proven more
beneficial and cheaper in the long term because of their "value-for-money" appeal. 14
Candidates Should Not Be Denied

Option to Use Media Ads
From the foregoing, it is clear that mass media truly offers an economical, practical, and effective
means by which a relatively unknown but well-qualified political candidate who has limited
resources, particularly one running for a national office, may make known to the general public
during the short campaign period 15 his qualifications, platform of government, stand on vital issues,
as well as his responses to questions or doubts about his capabilities, his character or any other
matter raised against him. Deprived of media ads, the rich candidate, unlike his poor opponent,
resorts to expensive propaganda — the holding of public meetings and rallies before large but
oftentimes "paid" crowds, helicopter stops and motorcades spanning several towns and cities, the
production of ingenious materials, giveaways and other products, and the incessant printing and
distribution of various campaign paraphernalia. These forms of electoral promotion ineluctably
require a large political machinery and gargantuan funds (organization + people/supporters +
communication gadgets + vehicles + logistics). To combat this formidable and expensive election
behemoth, the poor candidate's most viable alternative may be media advertising.
In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and radio and
television time . . . by the financially affluent [was] likely to make a crucial difference." But I say
such fear is unfounded. First, because campaign expenses are limited by law. Second, the
possibility of the abuse and misuse of media ads by the "financially affluent" is not an argument in
favor of their total withdrawal, for — to use the very words of the majority in NPC — "there is no
power or authority in human society that is not susceptible of being abused." 16 Third, the absence
of access to media advertising totally deprives the poor candidate of his most formidable weapon
in combating the "huge campaign war chests" of rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE BANNED
BECAUSE ONLY THE RICH CAN AFFORD IT OR, FOR THAT MATTER, THEY MAY ABUSE OR
MISUSE IT. Quite the contrary, in terms of reach, pass-on readership, multiplier effect and cost-
benefit advantage, media advertising may be the cheapest and most effective campaign
mechanism available. I am not suggesting that every candidate should use media ads. In the final
analysis, it is really up to the candidates and their campaign handlers to adopt such mode and
means of campaigning as their budgets and political strategies may require. 16a What I am stressing
is that candidates, whether rich or poor, should be given the option of campaigning through media,
instead of being forced to use other forms of propaganda that could turn out to be less effective
and more expensive.
2. Ad Ban Not Limited;

Comelec Time and Space Inutile
I now come to the second major point. The majority rationalizes the ad ban by saying that it has a
very limited duration and scope and that, in any event, the Comelec's grant of free media time and
space to candidates more than makes up for the violation of their constitutional right. I disagree.
Ad Ban Not
Limited in Duration
The ad ban is constitutional because, according to the majority, it is limited in duration for the
reason that it is enforced only during the election period. In my humble view and with all due
respect, this is both erroneous and illogical. A political advertisement is relevant only during the
campaign period — not before and not after. As petitioners put it, a ban on mountain-skiing during
the winter season cannot be said to be limited in duration, just because it is enforced during winter.
After all, skiing is indulged in only when the mountains slopes are covered with snow. To add a
further parallel, a ban against the planting of rice during the rainy season is not limited simply
because it covers only that season. After all, nobody plants rice during summer when the soil is
parched. In the same manner, campaign ads are not resorted to except during the campaign
period. And their prohibition does not become any less odious and less comprehensive just
because the proscription applies only during the election season. Obviously, candidates need to
advertise their qualifications and platforms only during such period. Properly understood, therefore,
the prohibition is not limited in duration but is in fact and in truth total, complete and exhaustive.
Ad Ban Neither
Limited in Scope
The majority also claims that the prohibition is reasonable because it is limited in scope; that is, it
refers only to the purchase, sale or donation of print space and air time for "campaign or other
political purposes," and does not restrict news reporting or commentaries by editors, columnists,
reporters, and broadcasters. But the issue here is not the freedom of media professionals. 17 The
issue is the freedom of expression of candidates. That the freedom of the press is respected by the
law and by the Comelec is not a reason to trample upon the candidates' constitutional right to free
speech and the people's right to information. In this light, the majority's contention is a clear case
of non sequitur. Media ads do not partake of the "real substantive evil" that the state has a right to
prevent 18 and that justifies the curtailment of the people's cardinal right to choose their means of
expression and of access to information.
Besides, what constitutes "campaign or other political purposes"? Neither RA 6646 nor the majority
provides an explanation. If candidates buy 30 column-inches of newspaper space or one hour of
prime radio/TV, time everyday, and if they retrain professional journalists to use such space/time to
defend them from attacks and to promote their platforms of government, should such purchase be
covered by the ad ban, or should it be allowed as an exercise of the freedom of journalists to
express their views? Even more insidiously, should regular columnists' daily defense of their
chosen candidates and daily promotion of their platforms of government constitute donated space
for "campaign and other political purposes"? 19
Ad Ban Not Compensated for or

Justified by Free "Comelec Time"
Finally, the majority opines that the grant of free Comelec media time and space to candidates
more than makes up for the abridgment of the latter's right to buy political ads. 20 With due respect, I
believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tell us that under its Resolution No. 3015, it
gave due course to eleven candidates for president, 21 nine for vice president, 22 and forty for
senator. 23 It is claimed however that, all in all, there are really about 100,000 candidates running
for about 17,000 national and local positions in the coming elections, from whom a voter is
expected to choose at least 30 24 to vote for. With so many candidates, how can the ordinary,
sometimes nonchalant, voter ever get to know each of the political hopefuls from whom he will
make an intelligent selection? In the crucial choice for president alone, how can ordinary citizens
intelligently and sufficiently assess each of the 11 candidates in order to make a sensible choice
for a leader upon whom to entrust the momentous responsibility of carving the country's path in the
next millennium?
The Comelec answers these questions with Resolution No. 2983-A, promulgated on March 3,
1998, in which it asks "every radio broadcasting and television station operating under franchise
[to] grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime
time daily, to be known as 'Comelec time' effective February 10, 1998 for candidates for President,
Vice President and Senators, and effective March 27, 1998 for candidates for local elective offices,
until May 9, 1998," to be allocated "by lottery" among candidates requesting its use. But Comelec,
in the same Compliance, informed the Court that "it is not procuring 'Comelec space' (in any
newspaper) by virtue of the effects of the decision of this Honorable Court in the case of Philippine
Press Institute (PPI) vs. Comelec, 244 SCRA 272." 25
In sum, the Comelec intends to secure 30 minutes of "Comelec time" from every radio and
broadcasting station to be allocated equally to all candidates. The Comelec does not state exactly
how it intends to allocate — except "by lottery" — these 30 minutes per station to the 17,000
candidates, considering that these stations do not have the same reach, audience and penetration.
The poll body does not say exactly how many stations are involved, what budget allocation, if any,
it has for the purpose, 26 when each candidate will be allowed to speak and for how long, how the
Comelec intends to cover the 77 provinces, 68 cities and 42,000 barangays nationwide, and many
other details. Moreover, while the Comelec smugly speaks of free Comelec time being effective on
"February 10, 1998" for national candidates, Resolution 2983-A itself was promulgated only on
March 3, 1998.
Up to this writing, I have yet to hear of any major candidate using this so-called free Comelec
broadcast time. In fact, during the oral argument of this case on March 5, 1998, Comelec
Chairman Bernardo P. Pardo frankly admitted that no candidate had applied for an allocation of
Comelec time. Not even petitioners. This is the best testament to the utter inutility and ineffectivity
of Comelec time. Indeed, it cannot be a substitute, much less a viable alternative, to freely chosen
but paid for media ads. It cannot compensate for the violation of the candidates' right to free
speech and media access, or for the electorate's right to information.
If the real objective is to level the playing field for rich and poor candidates, there must be, as there
already are, a cap on election expenses and a shortening of the campaign period. The incapability
of the Comelec to effectively monitor and strictly implement such expense and time limitations
should not take its toll upon constitutionally enshrined liberties of the people, including the
candidates. To prohibit access to mass media, except only through Comelec time — which has
been indubitably shorn to be sorely insubstantial, insignificant and inutile — is not, and is far from
being, a solution to the problems faced by poor candidates. The simple remedy is to lift the media
ban.
Epilogue
The ad ban is a blatant violation of the candidates' constitutional right to free speech 27 and the
people's right to information. 28 Being the last refuge of the people and the guardian of the
Constitution, this Court should then, with alacrity, view the ban with suspicion, if not with outright
rejection. 29 To repeat, the alleged limitations are in reality nonexistent; and the "pro-poor"
justification, without logic.
To say that the prohibition levels the playing field for the rich and the poor is to indulge in a
theoretical assumption totally devoid of factual basis. On the contrary, media advertising may be —
depending on a contender's propaganda strategy — the cheapest, most practical and most
effective campaign medium, especially for national candidates. By completely denying this medium
to both the rich and the poor, this Court has not leveled the playing field. It has effectively
abolished it! Far from equalizing campaign opportunities, the ban on media advertising actually
favors the rich (and the popular) who can afford the more expensive and burdensome forms of
propaganda, against the poor (and the unknown) who cannot.
The allegation that the prohibition is reasonable because it is limited in duration and scope is itself
most unreasonable, bereft as it is of logic and basis. Even more shallow is the argument that the
Comelec-given media time and space compensate for such abridgment. In fact, the Comelec is not
even procuring any newspaper space. In any event, the fact that not even the poorest candidates
have applied for available opportunities is the best testament to its dubiousness. That petitioners
who are seasoned political leaders prefer to pay for their own media ads rather than to avail
themselves of the Comelec freebies refutes the majority's thesis of compensation. Indeed, the free
things in life are not always the best. 30 They mat just be a bureaucratic waste of resources.
Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban
to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges reverence
for the stability of judicial doctrines. I submit, however, that more important than consistency and
stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains,
"Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with
the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme
Court, in many cases, 31 has deviated from stare decisis and reversed previous doctrines and
decisions. It should do no less in the present case.
Elections can he free, honest and credible not only because of the absence of the three execrable
"G's" or "guns, goons and gold." Beyond this, the integrity and effectivity of electoral democracy
depend upon the availability of information and education touching on three good "P's" —
principles, platforms and programs of the candidates. Indeed, an intelligent vote presupposes a
well-informed voter. If elections must be rid of patronage, personalities and popularity as the main
criteria of the people's choice, we must allow candidates every opportunity to educate the voters.
And corollarily, the people must be accorded every access to such information without much effort
and expense on their part.
With all due respect, I submit that the ad ban is regressive, repressive and deceptive. It has no
place in our constitutional democracy.
WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA 6646 as
UNCONSTITUTIONAL and VOID.
Separate Opinions
PUNO, J., separate concurring;
In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646 and
Resolution No. 2974 of the COMELEC implementing said law. They contend:
THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON THE PART
OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION UPON WHICH IT IS
SOUGHT TO BE GROUNDED.
II
CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT LIMITED IN
TIME AND SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING,

COMPREHENSIVE AND UNLIMITED.
B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR AS THE

CANDIDATE'S FREEDOM TO EXPRESS THROUGH THE MASS MEDIA, IT IS ABSOLUTE, ALL-
EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR RESTRAINT, AND
CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.
IV
THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE DESIRED
END.
A. INSTEAD OF "LEVELING THE PLAYING FIELD," INSOFAR AS THE USE OF MASS
MEDIA FOR POLITICAL PURPOSES IS CONCERNED, THE POLITICAL AD BAN HAS
ABOLISHED THE PLAYING FIELD.
B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN, BECAUSE IT DOES NOT

PREVENT THE RICH CANDIDATE FROM USING HIS SUPERIOR RESOURCES TO THE
UNDUE DISADVANTAGE OF THE POOR CANDIDATE.
C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD BAN BECAUSE

ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN ORDER TO PREVENT THE RICH
CANDIDATE FROM TAKING UNDUE ADVANTAGE OF HIS SUPERIOR RESOURCES.
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON MATTERS OF
PUBLIC CONCERN.
VI
THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE WHETHER THE POLITICAL AD BAN
OFFENDS THE CONSTITUTION OR NOT.
The Solicitor General and the petitioners-in-intervention likewise contend that section 11(b) of R.A.
No. 6646 is unconstitutional principally because it impairs freedom of speech and of the press.
A quick glance at petitioners' arguments against section 11(b) of R.A. No. 6646 will show that they
are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to the
brilliant majority decision and equally enlightening dissenting opinions in said case which
petitioners now seek to reexamine. A repetition of the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero which cites Buckley v. Valeo, 1
a 1976 case where a divided us Supreme Court ruled that limits on campaign expenditures violate
the guarantee of freedom of speech. The essence of the Buckley ruling is that "the concept that
government may restrict the speech of some elements of society in order to enhance the relative
voice of others is wholly foreign to the First Amendment . . ." 2
A reading of American legal literature, however, will reveal that Buckley has been widely criticized
by libertarians because its pro-business thrust has pernicious effects on efforts to achieve much
needed electoral reforms. 3 Typical of the criticisms is the observation of wright that the Buckley
Court ". . . has given protection to the polluting effect of money in election campaigns. As a result,
our political system may not use some of its most powerful defenses against electoral inequalities."
4
The barrage of criticisms caused the US Supreme Court to modify its absolute support for free
speech in Buckley. In the 1990 case of Austin v. Michigan State Chamber of Commerce, 5 it upheld
the constitutionality of a Michigan law that prohibited corporations from using corporate treasury
funds to support or oppose any candidate for office. Retreating from Buckley, the Austin Court
recognized the state's compelling interest in regulating campaign expenditure. Writing for the
majority, Mr. Justice Thurgood Marshall, an icon of libertarians declared: "Michigan identified as a
serious danger the significant possibility that corporate political expenditures will undermine the
integrity of the political process, and it has implemented a narrowly tailored solution to that
problem." In his concurring opinion, the last of the libertarians in the US High Court, Mr. Justice
Brennan, held: "In MCFL, we held that a provision of the Federal Election Campaign Act of 1971
(FECA), . . . similar to the Michigan law at issue here, could not be applied constitutionally to a
small, anti-abortion advocacy group. In evaluating the First Amendment challenge, however, we
acknowledged the legitimacy of Congress' concern that organizations that amass great wealth in
the economic marketplace should not gain unfair advantage in the political marketplace."
There is less reason to apply the discredited Buckley decision in our setting. Section 11(b) of R.A.
No. 6646 is based on provisions of our Constitution which have no counterparts in the US
Constitution. These provisions are:
Art. II, sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law.
Art. XIII, sec. 1. 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, and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political power for the common good.
Art. IX (c) (4). The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits from the operation of transportation and other public utilities, media of
right to reply, including reasonable equal rates therefor for public information campaigns and forms among
A member of the Constitutional Commission, now our distinguished colleague, Mr. Justice Hilario
Davide, Jr., well explained these new wrinkles in our Constitution, viz.:
xxx xxx xxx
Aware of the lamentable fact in the Philippines; no gap between these two unavoidable extremes of society is
more pronounced than that in the field of politics, and ever mindful of the dire consequences thereof, the
framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has
been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an
election is almost always an exception. Arrayed against the vast resources of wealthy opponent, the former,
even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been
isolated instances — but yet so few and far between — when poor candidates made it. 6
He stressed that this thrust for political equality is an improvement of our past Constitutions which
merely sought to establish equality in the economic and social fields. 7
It is difficult to think why such an egalitarian law like Section 11(b) of R.A. No. 6646 should be
condemned when it equalizes the political opportunities of our people. The gap between the
perfumed few and the perspiring many in our country is galloping at a frightening pace. As the cost
of election spirals at an immoral speed, levers of the political power are wielded more and more by
the wealthy alone. The subject law attempts to break this control by reducing the purchasing power
of the peso of the rich in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of freedom of speech should not be
used to frustrate legislative attempts to level the playing field in politics. R.A. No. 6646 does not
curtail speech as it no more than prevents the abusive use of wealth by the rich to frustrate the
poor candidate's access to media. It seems to me self-evident that if Congress can regulate the
abuse of money in the economic market so can it regulate its misuse in the political freemarket.
Money talks in politics but it is not the specie of speech sanctified in our Constitution. If we allow
money to monopolize media, the political freemarket will cease to be a market of ideas but a
market for influence by the rich. I do not read freedom of speech as meaning more speech for the
rich for freedom of speech is not guaranteed only to those who can afford its exercise. There ought
to be no quarrel with the proposition that freedom of speech will be a chimera if Congress does not
open the opportunities for its exercise. When the opportunities for its exercise are obstructed by
the money of the rich, it is the duty of Congress to regulate the misuse of money — for in the
political marketplace of ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped countries where sharp
disparities in wealth exist, the threat to freedom of speech comes not only from the government but
from vested interests that own and control the media. Today, freedom of speech can be restrained
not only by the exercise of public power but also by private power. Thus, we should be equally
vigilant in protecting freedom of speech from public and private restraints. The observation of a
legal scholar is worth meditating, viz.: "With the development of private restraints on free
expression, the idea of a free marketplace where ideas can compete on their merits has become
just as unrealistic in the twentieth century as the economic theory of perfect competition. The world
in which an essentially rationalist philosophy of the first amendment was born has vanished and
what was rationalism is now romance." 8
I vote to dismiss the petitions.
Melo, J., concurs.

VITUG, J., separate opinion;
I share the opinion of those who continue to uphold the decision in the National Press Club vs.
Commission on Elections case that has sustained the validity of Section 11(b) of Republic Act
("R.A.") No. 6646, otherwise also known as the Electoral Reforms Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court in the National Press Club
case, no more than invoke anew Section 4, Article III, of the Constitution to the effect that —
No law shall be passed abridging the freedom of speech, of expression, or of press, on the right of the people
peaceably to assemble and petition the government for redress of grievances.
It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec Resolution
No. 2974 should be declared unconstitutional. These contested provisions state:
Sec. 11. 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;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use
of the mass media to sell or give free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass
media columnist, commentator, announcer or personality who is a candidate for any elective public office shall
take a leave of absence from his work as such during the campaign period.
Sec. 18. Prohibited forms of election propaganda. — It is unlawful
xxx xxx xxx
e. For any radio broadcasting or television station or any person making use of broadcast media to sell or give,
free of charge, any air time for campaign and other political purposes, except thru "COMELEC Time," allotted
to the Commission pursuant to Section 92 of the Omnibus Election Code.
I see, however, in the above provisions a faithful compliance and due observance of the language,
intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:
Sec. 4. The Commission [on Elections] 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
right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among
(Emphasis supplied.)
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the
Constitution to be all that adversarial or irreconcilably inconsistent with the right of free expression.
In any event, the latter, being one of general application, must yield to the specific demands of the
Constitution. The freedom of expression concededly holds, it is true, a vantage point in the
hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without
limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the
Commission on Elections to ensure that all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real life to the candidates' right of free
expression rather than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be the best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.
I vote to dismiss the petition.
Melo and Purisima, JJ., concur.
ROMERO, J., dissenting;
A foolish consistency is the hobgoblin of little minds . . . . 1
Not wishing to be held hostage by Emerson's "hobgoblin," I dare to break away from a past
position and encapsulize my ruminations in a dissenting opinion.
When, If At All, May The Court Reverse Itself?
The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b) of R.A.
6646 is a reasonable restriction on the freedom of expression guaranteed by the Constitution. 2 Our
six-year experience with the ban on political advertisements, however, constrains me to dissent.
While it is desirable, even imperative, that this Court, in accordance with the principle of stare
decisis, afford stability to the law by hewing to doctrines previously established, said principle was
never meant as an obstacle to the abandonment of established rulings where abandonment is
demanded by public interest and by circumstances. 3 Reverence for precedent simply as precedent
cannot prevail when constitutionalism and public interest demand otherwise. Thus, a doctrine
which should be abandoned or modified should be abandoned or modified accordingly. More
pregnant than anything else is that the court should be right. 4
I submit that our country's past experience in the 1992 and 1995 elections, as well as
contemporary events, has established that Section 11(b) of R.A. 6646 falls short of the rigorous
and exacting standard for permissible limitation on free speech and flee press.
In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section 11(b),
pronouncing the same to be authorized by Article IX(C), Section 4 of the Constitution which reads:
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
agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.
including reasonable, equal rates therefor, for public information campaigns and forms among candidates in
connection with the objective of holding free, orderly, honest, peaceful and credible elections.
Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution, is essentially
an express manifestation of the comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public necessity and upon the right of
the state and the public to self-protection. For this reason, its scope expands and contracts with
changing needs. 5 In the words of Mr. Justice Isagani A. Cruz:
Police power is dynamic, not static, and must move with the moving society it is supposed to regulate.
Conditions change, circumstances vary; and to every such alteration the police power must conform. What
may be sustained as a valid exercise of the power now may become constitutional heresy in the future under a
different factual setting. Old notions may become outmoded even as new ideas are born, expanding or
constricting the limits of the police power. For example, police measures validly enacted fifty years ago against
the wearing of less than sedate swimsuits in public beaches would be laughed out of court in these days of
permissiveness. . . (T)he police power continues to change even as constraints on liberty diminish and private
property becomes more and more affected with public interest and therefore subject to regulation" (Emphasis
ours). 6
Thus, when the temper and circumstances of the times necessitate a review, this Court should not
hesitate to reverse itself, even on constitutional issues; for the legal problems with which society is
beset continually cannot be merely considered in the abstract, but must be viewed in light of the
infinite motley facets of human experience. As aptly stated by Mr. Justice Holmes, "The life of the
law has not been logic: it has been experience."
By way of illustration, we first held, in the celebrated Flag Salute Case, 7 that:
the flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect.
Under a system of complete separation of church and state in the government, the flag is utterly devoid of any
religious significance. Saluting the flag does not involve any religious ceremony. The flag salute is no more a
religious ceremony than the taking of an oath of office by a public official or by a public candidate for admission
to the bar.
xxx xxx xxx
The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have
no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and
demoralize the rest of the school population which by far constitute the great majority.
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority.
The Court further predicted that exempting Jehovah's Witnesses from participating in the flag
ceremony would ultimately lead to a situation wherein:
[T]he flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and patriotism-a pathetic, even tragic situation, and
all because a small portion of the school population imposed its will, demanded and was granted an
exemption.
Thirty-two years later, events caught up with the changing political climate, such that an undivided
Court pronounced, in Ebralinag v. The Division Superintendent of Schools of Cebu 8 that:
the idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to
the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their right to free speech and the free exercise of religious profession and worship.
xxx xxx xxx
The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a
grave and present 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, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of petitioners from the schools is not justified.
The Court held that its earlier prediction of dire consequences had not come to pass. It concluded
that exempting Jehovah's Witnesses from attending flag ceremonies would not produce a nation
"untaught and uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism."
In much the same manner, in the early case of People v. Pomar, 9 the Court struck down as
violative of the freedom of contract, a statute prescribing a thirty-day vacation with pay both before
and after confinement arising from pregnancy. The Court said:
The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms, and conditions
they may deem advisable, provided they are not contrary to law, morals or public policy.
Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled that the
right to contract about one's affairs is a part of the liberty of the individual guaranteed by the due
process clause. The Court also cited the "equality of right" principle, holding that "(i)n all such
particulars the employer and the employee have equality of right, and any legislation that disturbs
that equality is an arbitrary interference with the liberty of contract, which no government can
legally justify in a free land . . . Police power, the Court conceded, is an expanding power; but it
cannot grow faster than the fundamental law of the state . . . If the people desire to have the police
power extended and applied to conditions and things prohibited by the organic law, they must first
amend that law. 10
Sixteen years later, the validity of the above pronouncement was rejected by the Court in Antamok
Goldfields Mining Co. v. CIR, 11 which rationalized its volte-face stance, thus: "(i)n the midst of
changes that have taken place, it may likewise be doubted if the pronouncement made by this
court in the case of People v. Pomar . . . still retains its virtuality as a living principle. The policy of
laissez faire has to some extent given way to the assumption by the government of the right of
intervention even in contractual relations affected with public interests."
Similarly, events subsequent to the Court's ruling in Avelino v. Cuenco 12 impelled the Court to
reverse its original position. In this case, the Court initially refused to take cognizance of the raging
controversy to determine who was the rightful president of the Philippine Senate, ruling that in view
of the separation of powers, the question was a political one not within its jurisdiction. Despite such
a ruling, almost one-half of the members of the Senate refused to acknowledge Mariano Cuenco
as the acting President, as a result of which legislative work came to a standstill. In the words of
Justice Perfecto, "the situation has created a veritable national crisis, and it is apparent that
solution cannot be expected from any quarter other than this Supreme Court. . . . The judiciary
ought to ripen into maturity if it has to be true to its role as spokesman of the collective conscience,
of the conscience of humanity." The Court, thus, assumed jurisdiction over the case, rationalizing
that supervening events justified its intervention.
From the foregoing, it can be seen that the inexorable march of events, and the liberalizing winds
of change may very well signal a needed shift in our conception of the permissible limits of
regulation in the name of police power. Verily, while the validity of NPC v. COMELEC may have
been etched on granite at the time of its promulgation, events subsequent thereto now call into
question the very underpinnings of said ponencia. To my mind, the hoary maxim that "time upsets
many fighting faiths" still holds true, and the Court must be ever resilient and adaptable in order to
meet the protean complexities of the present and future generation.
In NPC v. COMELEC, the Court held that:
(N)o 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 right of free speech and free press. For
supervision or regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a statute is
presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion.
This upends the familiar holding that "any system of prior restraint of expression comes to this
Court bearing a heavy presumption against its constitutional validity, with the Government carrying
a heavy burden of showing justification for the enforcement of such a restraint." 13 This presumption
was even reiterated in the recent case of Iglesia ni Cristo v. CA, 14 wherein we ruled that "deeply
ensconced in our fundamental law is its hostility against all prior restraints on speech . . . Hence,
any act that restrains speech is hobbled by the presumption of invalidity and should be greeted
with furrowed brows. It is the burden of the respondent . . . to overthrow this presumption. If it fails
to discharge this burden, its act of censorship will be struck down." NPC v. COMELEC, insofar as it
bestows a presumption of validity upon a statute authorizing COMELEC to infringe upon the right
of free speech and free press, constitutes a departure from this Court's previous rulings as to
mandate its re-examination.
In this connection, it bears emphasis that NPC v. COMELEC was the product of a divided court,
marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez, and Paras. This fact gains
significance when viewed in light of the changes in the composition of the court. While a change in
court composition, per se, does not authorize abandonment of decisional precedents, it is apropos
to keep in mind the pronouncement by the Court in Philippine Trust Co. and Smith, Bell and Co. v.
Mitchell. 15 which reads as follows:
Is the court with new membership compelled to follow blindly the doctrine of the Velasco case? The rule of
stare decisis is entitled to respect. Stability in the law, particularly in the business field, is desirable. But
idolatrous reverence for precedent, simply as precedent, no longer rules. More important than anything else is
that the court should be right. (Emphasis ours)
Are The Restrictions Imposed by Sec. 11(b) Of R.A.

6646 on Freedom of Expression Valid?
Preliminaries having been disposed of, we proceed to the crux of the matter. Freedom of speech
has been defined as the liberty to know, to utter and to argue freely according to conscience,
above all liberties. It thus includes, not only the right to express one's views, but also other cognate
rights relevant to the free communication of ideas, not excluding the right to be informed on
matters of public concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on the freedom
of expression, to be valid. First, the prohibition is limited in the duration of its applicability and
enforceability to election periods. Precisely, this is what makes the prohibition more odious. It is
imposed during the campaign period when the electorate clamors for more and accurate
information as their basis for intelligent voting. To restrict the same only defeats the purpose of
holding electoral campaigns — to inform the qualified voter of the qualifications of candidates for
public office, as well as the ideology and programs of government and public service they
advocate, to the end that when election time comes, the right of suffrage may be intelligently and
knowingly, if not always wisely, exercised. Opening all avenues of information to the estimated
36.4 million voters is crucial for their intelligent exercise of the right of suffrage in the May 11 polls,
considering that they will be voting for an average of thirty elective positions. 16
Second, the prohibition is of limited application, as the same is applied only to the purchase and
sale of print space and air time for campaign or other political purposes. "Section 11(b) does not
purport in any way to restrict the reporting by newspapers or radio or television stations of news or
newsworthy events relating to candidates, their qualifications, political parties and programs of
government." It does not reach commentaries and expressions of belief or opinion by reporters or
broadcasters or editors or commentators or columnists in respect of candidates, their
qualifications, and programs and so forth. To be sure, newspapers, radio, and television stations
may not be restricted from reporting on candidates, their qualifications, and programs of
government, yet, admittedly, the freedom of expression of the candidates themselves in the
manner they choose to, is restricted. Candidates are thereby foreclosed from availing of the
facilities of mass media, except through the filtering prism of the COMELEC.
Not to be overlooked is the stark truth that the media itself is partisan. In a study 17 commissioned
by the COMELEC itself to determine whether certain newspapers adhered to the principles of
fairness and impartiality in their reportage of the presidential candidates in the 1992 elections, the
results disclosed that newspapers showed biases for or against certain candidates. Hence, the
contention that "Section 11(b) does not cut off the flow of media reporting, opinion or commentary
about candidates, their qualifications and platforms and promises" simply is illusory. Editorial policy
will always ensure that favored candidates receive prominent coverage while less favored ones will
get minimal exposure, if at all. This underscores the need to give candidates the freedom to
advertise, if only to counteract negative reporting with paid advertisements, which they cannot
have recourse to with the present prohibition. Worse, the ban even encourages corruption of the
mass media by candidates who procure paid hacks, masquerading as legitimate journalists, to sing
them paeans to the high heavens. Wittingly or unwittingly, the mass media, to the detriment of poor
candidates, occasionally lend themselves to the manipulative devices of the rich and influential
candidates.
Finally, it is alleged that while Section 11(b) prohibited the sale or donation by mass media of print
space or air time for campaign or other political purposes, COMELEC, by way of exception, was
mandated to purchase print space or air time, which space and time it was required to allocate,
equally and impartially, among the candidates for public office. Hence, whatever limitation was
imposed by Section 11(b) upon the right to free speech of the candidates was found not to be
unduly repressive or unreasonable inasmuch as they could still realize their objective as long as it
was coursed through COMELEC. COMELEC it was that shall decide what, who, which media to
employ and the time allocation for the candidates who signify their desire to avail of the agency's
air time and print space. Why accord to COMELEC such powers in the name of supervision and
regulation at the expense of the constitutionally hallowed freedom of expression?
Given the conditions then prevailing, the Court's ruling in NPC v. COMELEC may have been valid
and reasonable; yet today, with the benefit of hindsight, it is clear that the prohibition has become a
woeful hindrance to the exercise by the candidates of their cherished right to free expression and
concomitantly, a violation of the people's right to information on matters of public concern. As
applied, it has given an undue advantage to well-known popular candidates for office.
In the hierarchy of fundamental civil liberties, the right of free expression occupies a preferred
position, 18 the sovereign people recognizing that it is indispensable in a free society such as ours.
Verily, one of the touchstones of democracy is the principle that free political discussion is
necessary if government is to remain responsive to the will of the people. It is a guarantee that the
people will be kept informed at all times sufficiently to discharge the awesome responsibilities of
sovereignty.
Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or
privilege of free speech and publication has its limitations, the right not being absolute at all times
and under all circumstances. For freedom of speech does not comprehend the right to speak
whenever, however, and wherever one pleases, and the manner, and place, or time of public
discussion can be constitutionally controlled. 19
Still, while freedom of expression may not be immune from regulation, it does not follow that all
regulation is valid. Regulation must be reasonable as not to constitute a repression of the freedom
of expression. First, it must be shown that the interest of the public generally, as distinguished from
that of a particular class requires such regulation. Second, it must appear that the means used are
reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals.
As to the first, in NPC v. COMELEC, this Court declared that the ban on political advertising aims
to assure equality of opportunity to proffer oneself for public service by equalizing, as far as
practicable, the situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests."
While there can be no gainsaying the laudable intent behind such an objective, the State being
mandated to guarantee equal access to opportunities for public service, the prohibition has had the
opposite effect. Instead of "equalizing" the position of candidates who offer themselves for public
office, the prohibition actually gives an unfair advantage to those who have had wide media
exposure prior to the campaign period. Instead of promoting the interests of the public in general,
the ban promotes the interest of a particular class of candidates, the prominent and popular
candidates for public office. What is in store for the relatively obscure candidate who wants to
pursue his candidacy? Eager to trumpet his credentials and program of government, he finds
himself barred from using the facilities of mass media on his own. While incumbent government
officials, show business personalities, athletes and prominent media men enjoy the advantage of
name recall due to past public exposure, the unknown political neophyte has to content himself
with other fora, which, given the limited campaign period, cannot reach the electorate as effectively
as it would through the mass media. To be sure, the candidate may avail himself of "COMELEC
Space" and "COMELEC Time," but the sheer number of candidates does not make the same an
effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral
Argument held by the Court en banc, admitted that no candidate has as yet applied for COMELEC
air time and space.
More telling, the celebrities are lavished with broader coverage from newspapers, radio and
television stations, as well as via the commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or columnists, as they are deemed more
newsworthy by media, thus generating a self-perpetuating cycle wherein political unknowns, who
may be more deserving of public office, campaign in relative obscurity compared to their more
popular rivals. Instead of equalizing opportunities for public service, the prohibition not only
perpetuates political inequality, but also invidiously discriminates against lesser-known candidates.
While Article IX(C), Section 10 of the Constitution provides that "(b)ona fide candidates for any
public office shall be free from any form of harassment and discrimination," Article IX(C), Section 4
is nothing if not antithetical to the former provision as, in its application, it is productive of a
situation wherein political neophytes are blatantly discriminated against. Much as we recognize the
basic canon in Constitutional construction that the Constitution must be interpreted in such a way
as to harmonize all its provisions if the Charter is to be construed as a single, comprehensive
document and not as a series of disjointed articles or provisions, the predictable effect is for one
provision to negate the other.
As to the second requisite, experience shows that the ban on political advertisements has not been
reasonably necessary to accomplish its desired end. First, there are more than 70 provinces, more
than 60 cities and more than a thousand municipalities spread all over the archipelago. Previous
elections have shown that the ban on political advertising forces a candidate to conduct a
nationwide whistle-stop campaign to attain maximum exposure of his credentials and his program
of government. Obviously, this necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of 90 days. Given the enormous
logistics needed for such a massive effort, what are the chances for an impecunious candidate
who sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority of the populace more than
other instruments of information and dissemination, being the most pervasive, effective, and
inexpensive. A 30-second television advertisement, costing around P35,000.00 at present rates,
would, in an instant, reach millions of viewers around the country in the comfort of their homes.
Indeed, the use of modern mass media gives the poor candidate the opportunity to make himself
known to the electorate at an affordable cost. Yet, these means of communication are denied such
candidates due to the imagined apprehension that more affluent candidates may monopolize the
airwaves. This fear, however, need not materialize as the COMELEC is precisely empowered to
regulate mass media to prevent such a monopoly. Likewise, the ceiling on election spending
imposed by law upon all candidates, regardless, will also serve as a deterrent.
Second, the means employed is less than effective, for with or without the ban, moneyed
candidates, although similarly barred from buying mass media coverage, are in a position to lavish
their funds on other propaganda activities which their lesser-endowed rivals can ill-afford.
Furthermore, we take judicial notice of the inability of COMELEC to enforce laws limiting political
advertising to "common poster areas." Many places in cities have been ungainly plastered with
campaign materials of the better off candidates. What use is there in banning political
advertisements to equalize the situation between rich and poor candidates, when the COMELEC
itself, by its failure to curb the political excesses of candidates, effectively encourages the
prevailing disparities? Why then single out political advertising? What is the reasonable necessity
of doing so?
To be realistic, judicial notice must be taken of the fact that COMELEC, in narrowing down its list of
"serious" candidates, considers in effect a candidate's capability to wage an effective nationwide
campaign — which necessarily entails possession and/or availability of substantial financial
resources. Given this requirement, the objective of equalizing rich and poor candidates may no
longer find relevance, the candidates ultimately allowed to run being relatively equal, as far as
resources are concerned. Additionally, the disqualification of nuisance candidates, allegedly due to
their inability to launch serious campaigns, itself casts doubt on the validity of the prohibition as a
means to achieve the state policy of equalizing access to opportunities for public service. If poor
and unknown candidates are declared unfit to run for office due to their lack of logistics, the
political ad ban fails to serve its purpose, as the persons for whom it has been primarily imposed
have been shunted aside and thus, are unable to enjoy its benefits.
It must be kept in mind that the holding of periodic elections constitute the very essence of a
republican form of government, these being the most direct act and participation of a citizen in the
conduct of government. In this process, political power is entrusted by him, in concert with the
entire body of the electorate, to the leaders who are to govern the nation for a specified period. To
make this exercise meaningful, it is the duty of government to see to it that elections are free and
honest and that the voter is unhampered by overt and covert inroads of fraud, force and corruption
so that the choice of the people may be untrammelled and the ballot box an accurate repository of
public opinion. And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation, health, public
discussion, private animosities, the weather, the threshold of a voter's resistance to pressure —
the utmost ventilation of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly
reflect the will of the electorate.
With the prohibition on political advertisements except through the Comelec space and time, how
can a full discussion of men, issues, ideologies and programs be realized? Article III, Section 4 of
the Constitution provides that "(n)o law shall be passed abridging the freedom of speech, of
expression, of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances." Implicit in this guarantee is the right of the people to speak
and publish their views and opinions on political and other issues, without prior restraint and/or fear
of subsequent punishment. Yet Section 11(b), by authorizing political advertisements only via the
COMELEC effectively prevents the candidates from freely using the facilities of print and electronic
mass media to reach the electorate. A more blatant form of prior restraint on the free flow of
information and ideas can hardly be imagined. To be sure, it does not constitute an absolute
restriction, but it is restriction nonetheless, as odious and insidious as any that may be conceived
by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political advertisements on radio and
television would not endanger any substantial public interest. Indeed, allowing advertisements
would actually promote public interest by furthering public awareness of election issues. The
objective, equalizing opportunities for public service, while of some immediacy during election
times, does not justify curtailing the citizen's right of free speech and expression.
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. For these reasons, any
attempt to restrict these 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. 20
No such clear and present danger exists here as to justify banning political advertisements from
radio and television stations.
Past experience shows that the COMELEC has been hard put effectively informing the voting
populace of the credentials, accomplishments, and platforms of government of the candidates.
There are 17,396 national and local elective public positions 21 which will be contested by an
estimated 100,000 candidates 22 on May 11, 1998. For national positions, the list has been trimmed
down to 11 candidates for president, 9 candidates for vice-president, and 40 candidates for
senator. It is difficult to see how the number of candidates can be adequately accommodated by
"COMELEC Space" and "COMELEC Time." Resolution No. 2983 of the COMELEC, issued in
compliance with Section 92 of B.P. 881, mandates that at least thirty minutes or prime time be
granted to the Commission, free of charge, from February 10, 1998 until May 9, 1998. 23 Thirty
minutes of prime-time for eighty-nine days (89) is scarcely enough time to introduce candidates to
the voters, much less to properly inform the electorate of the credentials and platforms of all
candidates running for national office. Let us be reminded that those running for local elective
positions will also need to use the same space and time from March 27 to May 9, 1998, and that
the COMELEC itself is authorized to use the space and time to disseminate vital election
information. 24 Clearly, "COMELEC Space" and "COMELEC Time" sacrifices the right of the
citizenry to be sufficiently informed regarding the qualifications and programs of the candidates.
The net effect of Section 11(b) is, thus, a violation of the people's right to be informed on matters of
public concern and makes it a palpably unreasonable restriction on the people's right to freedom of
expression. Not only this, the failure of "Comelec Space" and "Comelec Time" to adequately inform
the electorate, only highlights the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich and poor candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisements are allowed in
fora other than modern mass media, thus: "aside from Section 11(b) of R.A. 6646 providing for
'COMELEC Space' and 'COMELEC Time,' Sections 9 and 10 of the same law afford a candidate
several venues by which he can fully exercise his freedom of expression, including freedom of
assembly." A concurring opinion points to the mandate of COMELEC to encourage non-political,
non-partisan private or civic organizations to initiate and hold in every city and municipality, public
fora at which all registered candidates for the same office may participate in, the designation of
common poster areas, the right to hold political caucuses, conferences, meetings, rallies, parades,
and other assemblies, as well as the publication and distribution of campaign literature. All these
devices conveniently gloss over the fact that for the electorate, as shown in surveys by the Ateneo
de Manila University's Center for Social Policy and Public Affairs, mass media remains to be the
most important and accessible source of information about candidates for public office.
It must be borne in mind that the novel party-list system will be implemented in the impending
elections. The party-list system, an innovation introduced by the 1987 Constitution in order to
encourage the growth of a multi-party system is designed to give a chance to marginalized sectors
of society to elect their representatives to the Congress. A scheme aimed at giving meaningful
representation to the interests of sectors which are not adequately attended to in normal legislative
deliberations, it is envisioned that system will encourage interest in political affairs on the part of a
large number of citizens who feel that they are deprived of the opportunity to elect spokesmen of
their own choosing under the present system. It is expected to forestall resort to extra-
parliamentary means by minority groups which would wish to express their interests and influence
governmental policies, since every citizen is given a substantial representation. 25
Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas worker
and professional sectors 26 will have the opportunity to elect representatives to Congress. With the
prohibition on political advertisements, however, those parties who wish to have their candidates
elected as sectoral representatives, are prevented from directly disseminating their platforms of
government through the mass media. The ban on political advertisements thus serves as a
deterrent to the development of self-reliance, self-development, logistical and organizational
capability on the part of sectoral parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the chance of consolidating a
mass base sorely needed for a fair chance of success in a highly competitive political exercise.
Likewise, with the inability of the candidates to reach the sectors they seek to represent, the right
of the people belonging to these sectors to be informed on matters of concern to them is likewise
violated. 27
Finally, NPC v. COMELEC invokes the specter of the "captive audience" to justify its stand against
political advertisements. Describing political advertisements as "appealing to the non-intellective
faculties of the captive and passive audience," it says that anyhow, the only limitation imposed by
Section 11(b) upon the free speech of candidates is on their right to bombard the helpless
electorate with paid advertisements commonly repeated in the mass media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the like, it is not
for this Court to determine what the people may or may not watch or read. Even "mind-numbing"
political advertisements are subject to the constitutional safeguard of due process.
Freedom Of Speech Expression Remains A Fresh

and Vital Verity
The guarantee of the freedom of speech which has been defined by Wendell Phillips as "the
instrument and guarantee and the bright and consummate flower of all liberty," has always been
granted a predominant status in the hierarchy of individual rights. 28 It is founded on the belief that
the final end of the state was to make men free to develop their faculties and that
With all due respect, I submit that the ad ban is regressive, repressive and deceptive. It has no
place in our constitutional democracy.
WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA 6646 as
UNCONSTITUTIONAL and VOID.

SUPREME COURT
Manila
EN BANC
G.R. No. 118971 September 15, 1999
RODOLFO R. VASQUEZ, petitioner,

vs.
COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA BRANCH 40, and THE
PEOPLE OF THE PHILIPPINES, respondents.
MENDOZA, J.:
The question for determination in this case is the liability for libel of a citizen who denounces a
barangay official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found
petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to prove the truth of
the charges and that he was "motivated by vengeance in uttering the defamatory statement." On
appeal, the Court of Appeals, in a decision 1 dated February 1, 1995, affirmed. Hence, this petition
for review. The decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore
Area. Sometime in April 1986, he and some 37 families from the area went to see then National
Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their
Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials,
petitioner and his companions were met and interviewed by newspaper reporters at the NHA
compound concerning their complaint. The next day, April 22, 1986, the following news article 2
appeared in the newspaper Ang Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo
Foreshore Area na umano'y inagawan ng lupa ng kanilang barangay chairman sa pakikipagsabwatan
sa ilang pinuno ng National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo
Foreshore Area, sa mga project manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na umaabot lang
sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng 38
pamilya.
"Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga survey ng NHA
noong nakalipas na taon na may karapatan kami sa mga lupang ito ng pamahalaan," ani Vasquez.
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA," sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS Minister
Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya "nakalusot" ang mga ginawa
nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal na
pasugalan sa naturang lugar at maging sa mga nakawan ng manok.1âwphi1.nêt
"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang
saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984," sabi pa ni Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that
the latter's statements cast aspersions on him and damaged his reputation. After conducting
preliminary investigation, the city prosecutor filed the following information in the Regional Trial
Court of Manila, Branch 40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said accused, with malicious
intent of impeaching the reputation and character of one Jaime Olmedo, chairman of Barangay 66,
Zone 6 in Tondo, Manila, and with evident intent of exposing him to public hatred, contempt, ridicule,
did then and there willfully, unlawfully, feloniously and maliciously caused the publication of an article
entitled "38 Pamilya Inagawan ng Lupa" in Ang Tinig ng Masa, a daily newspaper sold to the public
and of general circulation in the Philippines in its April 22, 1986 issue, which portion of the said article
reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya

sa Tondo Foreshore Area na umano'y inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,

Zone 6, Tondo Foreshore Area sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.
. . . "Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito
ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA,"
sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya "nakalusot" ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa

mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. . . .
with which statements, the said accused meant and intended to convey, as in fact he did mean and
convey false and malicious imputations that said Jaime Olmedo is engaged in landgrabbing and
involved in illegal gambling and stealing of chickens at the Tondo Foreshore Area, Tondo, Manila,
which statements, as he well knew, were entirely false and malicious, offensive and derogatory to the
good name, character and reputation of said Jaime Olmedo, thereby tending to impeach besmirch and
destroy the honor, character and reputation of Jaime Olmedo, as in fact, the latter was exposed to
dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was tried. The
prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina Calayag, as
witnesses. On the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin, Estrelita
Felix, Fernando Rodriguez — all residents of the Tondo Foreshore Area — and petitioner as its
witnesses.
On May 28, 1992, the trail court rendered judgment finding petitioner guilty of libel and sentencing
him to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence, this
petition for review. Petitioner contends that —
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

TRIAL COURT PINPOINTING PETITIONER AS THE SOURCE OF THE ALLEGED
LIBELOUS ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

TRIAL COURT THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO
COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

TRIAL COURT THAT THE ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

TRIAL COURT WHICH FAILED TO APPRECIATE PETITIONER'S DEFENSE OF
TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

TRIAL COURT THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was "unfairly singled out" as the source of the statements in the article
when any members of the 38 complainant-families could have been the source of the alleged
libelous statements. 3 The reference is to the following portion of the decision of the Court of
Appeals:
. . . In his sworn statement; appellant admitted he was the source of the libelous article (Exh. "B"). He
affirmed this fact when he testified in open court as follows: That his allegation on the act of
landgrabbing by Olmedo was based on the alleged report and pronouncements of the NHA
representatives (p. 5, tsn, Oct. 18, 1998); the said allegations were made by him before the local press
people in the pursuit of fairness and truthfulness and not in bad faith (pp. 8-9, id.); that the only
inaccurate account in the published article of "Ang Tinig ng Masa" is the reference to the 487.87 sq.m.
lot, on which Olmendo's residence now stands, attributed by the reporter as the lot currently occupied
by the appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15,
1990); and that after the interview, he never expected that his statements would be the cause of the
much-publicized libelous article (pp. 4-6, tsn, Nov. 15, 1989). 4
It is true petitioner did not directly admit that he was the source of the statements in the questioned
article. What he said in his own sworn statement 5 was that the contents of the article are true in
almost all respects, thus:
9. Tama and nakalathala sa pahayagang "Ang Masa" maliban na lang sa tinukoy na ako at ang mga
kasamahang maralitang taga-lungsod ay nakitira sa humugit kumulang 487.87 square meters
sapagkat ang nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay ni Barangay
Chairman Olmedo kung saan nakaloob ang anim na lote — isang paglabag sa batas o regulasyon ng
NHA;
10. Ang ginawa kong pahayag na nailathala sa "Ang Masa" ay sanhi ng aking nais na maging
mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap sa Tondo Foreshore Area
kung saan ako at sampu ng aking mga kasamang maralitang taga-lungsod ay apektado at naapi.
This was likewise what he stated in his testimony in court both on the direct 6 and on cross-
examination. 7 However, by claiming that what he had told the reporter was made by him in
the performance of a civic duty, petitioner in effect admitted authorship of the article and not
only of the statements attributed to him therein, to wit:
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA," sabi ni Vasquez.
xxx xxx xxx
"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang
saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984," sabi pa ni Vasquez.
Petitioner cannot claim to have been the source of only a few statements in the article in question
and point to the other parties as the source of the rest, when he admits that he was correctly
identified as the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as
published. In fact, the second statement attributed to petitioner was not included in the information.
But, while the general rule is that the information must set out the particular defamatory words
verbatim and as published and that a statement of their substance is insufficient, 8 a defect in this
regard may be cured by evidence. 9 In this case, the article was presented in evidence, but
petitioner failed to object to its introduction. Instead, he engaged in the trial of the entire article, not
only of the portions quoted in the information, and sought to prove it to be true. In doing so, he
waived objection based on the defect in the information. Consequently, he cannot raise this issue
at this late stage. 10
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he said
was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements
must be proved: (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. 11
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
circumstances which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead. 12
There is publication if the material is communicated to a third person. 13 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 man's reputation is the estimate in which
others hold him in, not the good opinion which he has of himself." 14
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. 15
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.
In this case, there is no doubt that the first three elements are present. The statements that
Olmedo, through connivance with NHA officials, was able to obtain title to several lots in the area
and that he was involved in a number of illegal activities (attempted murder, gambling and theft of
fighting cocks) were clearly defamatory. There is no merit in his contention that "landgrabbing," as
charged in the information, has a technical meaning in law. 16 Such act is so alleged and proven in
this case in the popular sense in which it is understood by ordinary people. As held in United
States v. Sotto: 17
. . . [F]or the purpose of determining the meaning of any publication alleged to be libelous "that
construction must be adopted which will give to the matter such a meaning as is natural and obvious in
the plain and ordinary sense in which the public would naturally understand what was uttered. The
published matter alleged to be libelous must be construed as a whole. In applying these rules to the
language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the
publisher on being called to account. The whole question being the effect the publication had upon the
minds of the readers, and they not having been assisted by the offered explanation in reading the
article, it comes too he to have the effect of removing the sting, if any there be, from the words used in
the publication.
Nor is there any doubt that the defamatory remarks referred to complainant and were published.
Petitioner caused the publication of the defamatory remarks when he made the statements to the
reporters who interviewed him. 18
The question is whether from the fact that the statements were defamatory, malice can be
presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361
of the Revised Penal Code, if the defamatory statements is made against a public official with
respect to the discharge of his official duties and functions and the truth of the allegation is shown,
the accused will be entitled to an acquittal even though he does not prove that the imputation was
published with good motives and for justifiable ends. 19
In this case, contrary to the findings of the trial court, on which the Court of Appeals relied,
petitioner was able to prove the truth of his charges against the barangay official. His allegation
that, through connivance with NHA officials, complainant was able to obtain title to several lots at
the Tondo Foreshore Area was based on the letter 20 of NHA Inspector General Hermogenes
Fernandez to petitioner's counsel which reads:
09
Aug
ust
198
3
Atty. Rene V. Sarmiento
Free Legal Assistance Group (FLAG)
55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:
In connection with your request, that you be furnished with a copy of the results of the investigation
regarding the complaints of some Tondo residents against Chairman Jaime Olmedo, we are providing
you a summary of the findings based on the investigation conducted by our Office which are as
follows:
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedo's present structure is
constructed on six lots which were awarded before by the defunct Land Tenure Administration to
different persons as follows:
Lot 4 — Juana Buenaventura — 79.76 sq. m.
Lot 6 — Servando Simbulan — 48.50 sq. m.
Lot 7 — Alfredo Vasquez — 78.07 sq. m.
Lot 8 — Martin Gallardo — 78.13 sq. m.
Lot 9 — Daniel Bayan — 70.87 sq. m.
Lot 1 — Fortunato de Jesus — 85.08 sq. m. (OIT No. 7800)
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold the said lot to
a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other remaining lots were either sold to
Mr. Olmedo and/or to his immediate relatives.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with an area of
47.40 sq. m.
The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq., m. A four-door
apartment owned by Mr. Olmedo is being rented to uncensused residents.
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not yet titled.
Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected on a non-titled
lot. The adjacent lot is titled in the name of Victoria. It was issued OCT No. 10217 with an area of
202.23 sq. m. Inside this compound is another structure owned and occupied by Amelia Dofredo, a
censused houseowner. The titled lot of Victoria now has an area of 338.20 sq. m.
For your information.
(s/t) HERMOGENES C.
FERNANDEZ
Inspector
General
Public Assistance & Action
Office
In addition, petitioner acted on the basis of two memoranda, 21 both dated November 29,
1983, of then NHA General Manager Gaudencio Tobias recommending the filing of
administrative charges against the NHA officials "responsible for the alleged irregular
consolidation of lots [in Tondo to Jaime and Victoria Olmedo.]"
With regard to the other imputations made by petitioner against complainant, it must be noted that
what petitioner stated was that various charges (for attempted murder against petitioner, gambling,
theft of fighting cocks) had been filed by the residents against their barangay chairman but these
had all been dismissed. Petitioner was able to show that Olmedo's involvement in the theft of
fighting cocks was the subject of an affidavit-complaint, 22 dated October 19, 1983, signed by
Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay 66, Zone 6, Tondo.
Likewise, petitioner presented a resolution, 23 dated March 10, 1988, of the Office of the Special
Prosecutor in TBP-87-03694, stating that charges of malversation and corrupt practices had been
filed against Olmedo and nine (9) other barangay officials but the same were dismissed. Indeed,
the prosecution's own evidence bears out petitioner's statements. The prosecution presented the
resolution 24 in TBP Case No. 84-01854 dismissing the charge of attempted murder filed by
petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The allegation concerning this
matter is thus true.1âwphi1.nêt
It was error for the trial court to hold that petitioner "only tried to prove that the complainant
[barangay chairman] is guilty of the crimes alluded to; accused, however, has not proven that the
complainant committed the crimes." For that is not what petitioner said as reported in the Ang Tinig
ng Masa. The fact that charges had been filed against the barangay official, not the truth of such
charges, was the issue.
In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic
duty to see to it that public duty is discharged faithfully and well by those on whom such duty is
incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent
with any requirement placing on him the burden of proving that he acted with good motives and for
justifiable ends.
For that matter, even if the defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the statements was made with
actual malice — that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, 25
which this Court has cited with approval in several of its own decision. 26 This is the rule of "actual
malice." In this case, the prosecution failed to prove not only that the charges made by petitioner
were false but also that petitioner made them with knowledge of their falsity or with reckless
disregard of whether they were false or not.
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." 27
Complainant contends that petitioner was actuated by vengeful political motive rather than by his
firm conviction that he and his fellow residents had been deprived of a property right because of
acts attributable to their barangay chairman. The Court of Appeals, sustaining complainant's
contention, held:
That the said imputations were malicious may be inferred from the facts that appellant and
complainant are enemies, hence, accused was motivated by vengeance in uttering said defamatory
statements and that accused is a leader of Ciriaco Cabuhat who was defeated by complainant when
they ran for the position of barangay captain. . . . 28
As already stated, however, in accordance with Art. 361, if the defamatory matter either
constitutes a crime or concerns the performance of official duties, and the accused proves
the truth of his charge, he should be acquitted. 29
Instead of the claim that petitioner was politically motivated in making the charges against
complainant, it would appear that complainant filed this case to harass petitioner. Art. 360 of the
Revised Penal Code provides:
Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of
any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the defamation's contained therein to the same
extent as if he were the author thereof. . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was
charged in court. What was said in an analogous case 30 may be applied mutatis mutandis to
the case at bar:
It is curious that the ones most obviously responsible for the publication of the allegedly offensive
news report, namely, the editorial staff and the periodical itself, were not at all impleaded. The charge
was leveled against the petitioner and, "curiouser" still, his clients who have nothing to do with the
editorial policies of the newspaper. There is here a manifest effort to persecute and intimidate the
petitioner for his temerity in accusing the ASAC agents who apparently enjoyed special privileges —
and perhaps also immunities — during those oppressive times. The non-inclusion of the periodicals
was a transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect for
freedom of expression that was in fact one of the most desecrated liberties during the past despotism.
31
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is
ACQUITTED of the crime charged.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Footnotes
1 Per Associate Justice Celia Lipana-Reyes and concurred in by Associate Justices Asaali S. Isnani and
Corona Ibay-Somera.
2 Exh. A-1, Records, p. 77.
3 Petition, pp. 9-12; Rollo, pp. 17-20.
4 CA Decision, p. 4; Id., p. 47.
5 Exh. B; Records, p. 79. (Emphasis added)
6 TSN, pp. 9-4, Nov. 15, 1989.
ATTY. VIRGILIO OCAYA — Mr. Vasquez, you are charged with having [made] a statement
that was reflected in the Pahayagang [Ang] Masa. Where was this alleged statement taken?
A — What I remember, sir, the reporter got the statement from the National Housing Authority,
and we were many at that time that were being interviewed by the reporters, sir.

SUPREME COURT
Manila
EN BANC
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven
into the right to free speech and free expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down
laws and issuances meant to curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of
Staff,2 Social Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When
on its face, it is clear that a governmental act is nothing more than a naked means to prevent the
free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and local elections.
On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to
destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly
between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of
the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through
wire-tapping.5 Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the
tape, one supposedly the complete version, and the other, a spliced, "doctored" or altered version,
which would suggest that the President had instructed the COMELEC official to manipulate the
election results in the President’s favor. 6 It seems that Secretary Bunye admitted that the voice
was that of President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes
were purported conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers.8
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the compact disc (CD) and those broadcasting or
publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included
Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody who had personal knowledge if
the crime was committed or was being committed in their presence.9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations "found to have caused the spread, the playing
and the printing of the contents of a tape" of an alleged wiretapped conversation involving the
President about fixing votes in the 2004 national elections. Gonzales said that he was going to
start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television
network, because by the very nature of the Internet medium, it was able to disseminate the
contents of the tape more widely. He then expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to
conduct a tactical interrogation of all concerned." 10
5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO
OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM
STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television network
owners/operators that the conditions of the authorization and permits issued to them by
Government like the Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use [their] stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it has come to the attention of the
[NTC] that certain personalities are in possession of alleged taped conversations which they
claim involve the President of the Philippines and a Commissioner of the COMELEC
regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it
be said at this time that the tapes contain an accurate or truthful representation of what was
recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the
said taped conversations by radio and television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to these radio and television stations. It has been subsequently established
that the said tapes are false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful misrepresentation shall be just
cause for the suspension, revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular 111-
12-85 explicitly states, among others, that "all radio broadcasting and television stations
shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or
other matters being broadcast or telecast the tendency thereof is to disseminate false
information or such other willful misrepresentation, or to propose and/or incite treason,
rebellion or sedition." The foregoing directive had been reiterated by NTC Memorandum
Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television
stations from using their stations to broadcast or telecast any speech, language or scene
disseminating false information or willful misrepresentation, or inciting, encouraging or
assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with
full force the provisions of said Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not
violate the constitutional freedom of speech, of expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among
others, that: 12
• NTC respects and will not hinder freedom of the press and the right to information on
matters of public concern. KBP & its members have always been committed to the exercise
of press freedom with high sense of responsibility and discerning judgment of fairness and
honesty.
• NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of views.
• What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
• KBP has program standards that KBP members will observe in the treatment of news and
public affairs programs. These include verification of sources, non-airing of materials that
would constitute inciting to sedition and/or rebellion.
• The KBP Codes also require that no false statement or willful misrepresentation is made in
the treatment of news or commentaries.
• The supposed wiretapped tapes should be treated with sensitivity and handled responsibly
giving due consideration to the process being undertaken to verify and validate the
authenticity and actual content of the same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, "praying for the issuance of the writs of certiorari and prohibition,
as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents."13
Alleging that the acts of respondents are violations of the freedom on expression and of the press,
and the right of the people to information on matters of public concern,14 petitioner specifically
asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or made
since June 6, 2005 until the present that curtail the public’s rights to freedom of expression
and of the press, and to information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of President Arroyo and for
prohibition of the further commission of such acts, and making of such issuances, and
orders by respondents. 15
Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal
standing to file the petition. Among the arguments they raised as to the validity of the "fair warning"
issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees
compared to print media, and the warning was issued pursuant to the NTC’s mandate to regulate
the telecommunications industry. 17 It was also stressed that "most of the [television] and radio
stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP." 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner,
who is not a member of the broadcast media, prays that we strike down the acts and statements
made by respondents as violations of the right to free speech, free expression and a free press.
For another, the recipients of the press statements have not come forward—neither intervening nor
joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent
NTC that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege
"such a personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the Court so largely depends for illumination
of difficult constitutional questions." 19
But as early as half a century ago, we have already held that where serious constitutional
questions are involved, "the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside if we must, technicalities of procedure." 20
Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that greatly impact on public
interest,21 in keeping with the Court's duty under the 1987 Constitution to determine whether or not
other branches of government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society,22 we therefore brush aside technicalities of procedure and
take cognizance of this petition,23 seeing as it involves a challenge to the most exalted of all the
civil rights, the freedom of expression. The petition raises other issues like the extent of the right to
information of the public. It is fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of the respondents abridge
freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom of the press
have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence
of freedom of speech and of the press now beclouded by the vagaries of motherhood statements;
(2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the
core concepts of prior restraint, content-neutral and content-based regulations and their
constitutional standard of review; (4) to examine the historical difference in the treatment of
restraints between print and broadcast media and stress the standard of review governing both;
and (5) to call attention to the ongoing blurring of the lines of distinction between print and
broadcast media.
E. Re-examining The law on freedom of speech,

of expression and of the press
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.24
Freedom of expression has gained recognition as a fundamental principle of every democratic

government, and given a preferred right that stands on a higher level than substantive economic
freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of Rights,25 were considered the
necessary consequence of republican institutions and the complement of free speech.26 This
preferred status of free speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations.27
In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental
postulate of our constitutional system. 28 This right was elevated to constitutional status in the
1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and
legal, that freedom of speech is an indispensable condition for nearly every other form of
freedom.29 Moreover, our history shows that the struggle to protect the freedom of speech,
expression and the press was, at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms.30 For it is only when the people have unbridled access to information
and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words
of Thomas Jefferson, we cannot both be free and ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we have adopted as part and
parcel of our own Bill of Rights provision on this basic freedom.31 What is embraced under this
provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in
which it was held:
…At the very least, free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship and punishment.
There is to be no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive evil that Congress
has a right to prevent. 33
Gonzales further explained that the vital need of a constitutional democracy for freedom of
expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the
truth; of assuring participation by the people in social, including political, decision-making; and of
34
maintaining the balance between stability and change. As early as the 1920s, the trend as
reflected in Philippine and American decisions was to recognize the broadest scope and assure
the widest latitude for this constitutional guarantee. The trend represents a profound commitment
to the principle that debate on public issue should be uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, and to take refuge
in the existing climate of opinion on any matter of public consequence.36 When atrophied, the right
becomes meaningless.37 The right belongs as well -- if not more – to those who question, who do
not conform, who differ.38 The ideas that may be expressed under this freedom are confined not
only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom
of speech and of the press should allow and even encourage the articulation of the unorthodox
view, though it be hostile to or derided by others; or though such view "induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."39 To
paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought
that agrees with us. 40
The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political
causes, and is not confined to any particular field of human interest. The protection covers myriad
matters of public interest or concern embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for
religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's
basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are
conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded free
speech extends to speech or publications that are entertaining as well as instructive or informative.
Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms
of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom
of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of expression
clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspapers and other print media, as will be subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would appear that the right to free
speech and a free press is not susceptible of any limitation. But the realities of life in a complex
society preclude a literal interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an "unbridled
license that gives immunity for every possible use of language and prevents the punishment of
those who abuse this freedom."
Thus, all speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to the
equal right of others or those of the community or society.43 The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis,
and evaluation of the permissible scope of restrictions on various categories of speech. 44 We have
ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as
"fighting words" are not entitled to constitutional protection and may be penalized.45
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness,

and so on) have been applied differently to each category, either consciously or unconsciously. 46
A study of free speech jurisprudence—whether here or abroad—will reveal that courts have
developed different tests as to specific types or categories of speech in concrete situations; i.e.,
subversive speech; obscene speech; the speech of the broadcast media and of the traditional print
media; libelous speech; speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of
assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by either or a

combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on
speech once a rational connection has been established between the speech restrained and the
danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need
to balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; 49 and
(c) the clear and present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil the government has a
right to prevent. This rule requires that the evil consequences sought to be prevented must be
substantive, "extremely serious and the degree of imminence extremely high." 50
As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or
clear and present danger 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 issuance actually constituted prior restraint. Rather, the determinations were always about
whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an impermissible restraint on
the freedom of speech has always been based on the circumstances of each case, including the
nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have
been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or
act against the circumstances in which they operate, and then determining the appropriate test
with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of expression
in advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal to publish; licensing or permits
as prerequisites to publication including the payment of license taxes for the privilege to publish;
and even injunctions against publication. Even the closure of the business and printing offices of
certain newspapers, resulting in the discontinuation of their printing and publication, are deemed
as previous restraint or censorship. 57 Any law or official that requires some form of permission to
be had before publication can be made, commits an infringement of the constitutional right, and
remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid,58 and "any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows," 59 it is
important to stress not all prior restraints on speech are invalid. Certain previous restraints may be
permitted by the Constitution, but determined only upon a careful evaluation of the challenged act
as against the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint
on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral
regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well defined standards;60 or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The
cast of the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity.62 Because regulations of this type are not designed
to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach—somewhere between the mere rationality that is required of any other
law and the compelling interest standard applied to content-based restrictions.63 The test is called
intermediate because the Court will not merely rubberstamp the validity of a law but also require
that the restrictions be narrowly-tailored to promote an important or significant governmental
interest that is unrelated to the suppression of expression. The intermediate approach has been
formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or of the press based
on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional muster,65
with the government having the burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck
down.66
With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about— especially the gravity and the imminence of
the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based
on its content cannot be justified by hypothetical fears, "but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground."67 As formulated, "the question
in every case is whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree."68
The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what is essential to the
furtherance of that interest. 70 A restriction that is so broad that it encompasses more than what is
required to satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must
be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means
undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an

intermediate review. A content-based regulation,73 however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions imposed are
neither overbroad nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected
to the clear and present danger rule, as they are content-based restrictions. The acts of
respondents focused solely on but one object—a specific content— fixed as these were on the
alleged taped conversations between the President and a COMELEC official. Undoubtedly these
did not merely provide regulations as to the time, place or manner of the dissemination of speech
or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast
media enjoys free speech rights that are lesser in scope to that of print media. We next explore
and test the validity of this argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.
The regimes presently in place for each type of media differ from one other. Contrasted with the
regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting,
film and video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States. There,
broadcast radio and television have been held to have limited First Amendment protection,75 and
U.S. Courts have excluded broadcast media from the application of the "strict scrutiny" standard
that they would otherwise apply to content-based restrictions.76 According to U.S. Courts, the three
major reasons why broadcast media stands apart from print media are: (a) the scarcity of the
frequencies by which the medium operates [i.e., airwaves are physically limited while print medium
may be limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique accessibility to
children.78 Because cases involving broadcast media need not follow "precisely the same approach
that [U.S. courts] have applied to other media," nor go "so far as to demand that such regulations
serve ‘compelling’ government interests,"79 they are decided on whether the "governmental
restriction" is narrowly tailored to further a substantial governmental interest,"80 or the intermediate
test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in

treatment between broadcast and print media. Nevertheless, a review of Philippine case law on
broadcast media will show that—as we have deviated with the American conception of the Bill of
Rights81— 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. COMELEC92 treated a restriction imposed on a
broadcast media as a reasonable condition for the grant of the media’s franchise, without going
into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in
other jurisdictions, where the statutory regimes in place over broadcast media include elements of
licensing, regulation by administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ in a
number of respects, but have a common historical basis. The stricter system of controls
seems to have been adopted in answer to the view that owing to their particular impact on
audiences, films, videos and broadcasting require a system of prior restraints, whereas it is
now accepted that books and other printed media do not. These media are viewed as
beneficial to the public in a number of respects, but are also seen as possible sources of
harm.93
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the
most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the
print media normally does not, that regulation is said to be necessary in order to preserve
pluralism. It has been argued further that a significant main threat to free expression—in terms of
diversity—comes not from government, but from private corporate bodies. These developments
show a need for a reexamination of the traditional notions of the scope and extent of broadcast
media regulation. 94
The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged environment.95
Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share
similarities, 96 and the rationales used to support broadcast regulation apply equally to the
Internet.97 Thus, it has been argued that courts, legislative bodies and the government agencies
regulating media must agree to regulate both, regulate neither or develop a new regulatory
framework and rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast media, let us go
to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of
speech or of the press based on content is given the strictest scrutiny, with the government having
the burden of overcoming the presumed unconstitutionality by the clear and present danger rule.
This rule applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out the following:
(a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and
(e) the quantum of evidence necessary. On the basis of the records of the case at bar,
respondents who have the burden to show that these acts do not abridge freedom of speech and
of the press failed to hurdle the clear and present danger test. It appears that the great evil which
government wants to prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar, however, are confused and confusing, and
respondents’ evidence falls short of satisfying the clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the identity of the voices in the tape recording.
Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to
the public two versions, one supposed to be a "complete" version and the other, an "altered"
version. Thirdly, the evidence of the respondents on the who’s and the how’s of the wiretapping act
is ambivalent, especially considering the tape’s different versions. The identity of the wire-tappers,
the manner of its commission and other related and relevant proofs are some of the invisibles of
this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its
airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech
and of the press. Our laws are of different kinds and doubtless, some of them provide norms of
conduct which even if violated have only an adverse effect on a person’s private comfort but does
not endanger national security. There are laws of great significance but their violation, by itself and
without more, cannot support suppression of free speech and free press. In fine, violation of law is
just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain
freedom of speech and of the press. The totality of the injurious effects of the violation to private
and public interest must be calibrated in light of the preferred status accorded by the Constitution
and by related international covenants protecting freedom of speech and of the press. In calling for
a careful and calibrated measurement of the circumference of all these factors to determine
compliance with the clear and present danger test, the Court should not be misinterpreted as
devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to prevent their violation
cannot per se trump the exercise of free speech and free press, a preferred right whose breach
can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear
and present danger test, the Court has no option but to uphold the exercise of free speech and
free press. There is no showing that the feared violation of the anti-wiretapping law clearly
endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the issue of whether the
mere press statements of the Secretary of Justice and of the NTC in question constitute a form of
content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were not reduced in or
followed up with formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales
made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory
body of media. Any act done, such as a speech uttered, for and on behalf of the government in an
official capacity is covered by the rule on prior restraint. The concept of an "act" does not limit itself
to acts already converted to a formal order or official circular. Otherwise, the non formalization of
an act into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record. The warnings given
to media came from no less the NTC, a regulatory agency that can cancel the Certificate of
Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter
ego of the Executive, who wields the awesome power to prosecute those perceived to be violating
the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this
battle for freedom of speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always be
exercised with care and in light of the distinct facts of each case. For there are no hard and fast
rules when it comes to slippery constitutional questions, and the limits and construct of relative
freedoms are never set in stone. Issues revolving on their construct must be decided on a case to
case basis, always based on the peculiar shapes and shadows of each case. But in cases where
the challenged acts are patent invasions of a constitutionally protected right, we should be swift in
striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow
too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby
issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the
media on airing the alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech
and of the press
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

DANTE O. TINGA MINITA V. CHICO-NAZARIO

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

RUBEN T. REYES TERESITA LEONARDO-DE CASTRO

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
REYNATO S. PUNO
Chief Justice
SUPREME COURT
Manila
EN BANC
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
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
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:
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
MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
"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 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, 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-vis religious
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 findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is no showing whatsoever of the
type of harm the tapes will bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which has taken the life of a
reality already on ground.
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 true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test in 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 espouses anti-government action.
Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of 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 decided Dennis v. United States involving
communist conspiracy. 27 In Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the
gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger." The imminence requirement of the test was thus diminished and to
that extent, the protection of the rule was weakened. In 1969, however, the strength of the test was
reinstated in Brandenburg v. Ohio, 28 when the High Court restored in the test the imminence
requirement, and even added an intent requirement which according to a noted commentator
ensured that only speech directed at inciting lawlessness could be punished. 29 Presently in the
United States, the clear and present danger test is not applied to protect low value speeches such
as obscene speech, commercial speech and defamation. Be that as it may, the test is still applied
to four 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 readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb
and disturb tenribly.
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 be measured, and the causal
connection between the speech and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their
speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its
sulphur will bring about the substantive evil feared by the law.
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 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.
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.
On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise
of executive power, is extremely delicate in nature and can only be justified where the statute is
unequivocably applicable to the supposed objectionable publication. In excluding any publication for
the mails, the object should be not to interfere with the freedom of the press or with any other
fundamental 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 the courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;
Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 -
Fed., 773)
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every intendment of the law is in favor of the correctness of his action. The
rule is (and we go only to those cases coming from the United States Supreme Court and pertaining to
the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24.
But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and relied
upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or
not courts alone are competent to decide whether speech is constitutionally protected. 35
The issue involves highly arguable policy considerations and can be better addressed by
our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is
affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121.
No costs.
SO ORDERED.
Regalado, Davide, Jr., Romero and Francisco, JJ., concur.
Narvasa, C.J., concurs in the result.
Separate Opinions
PANGANIBAN, J., concurring:
I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and
Television Review and Classification Board (MTRCB)? More specifically, does the MTRCB have
the power to prohibit/ censor television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent
Board exercise its powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and
prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific act of the
Board in classifying as "X" (or not for public viewing) specific pre-taped or canned programs,
identified as Series 115, 119, 121 and 128, for the reason that they allegedly constituted an "attack
against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF

MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986. 1
In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this
case is Section 4 2 of such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the
Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by
saying that "expression . . . by means of television broadcast is included in the free speech and
free press guarantee of the Constitution" and by Mr. Justice Kapunan by writing that this "case
uniquely interphases questions of religious expression and censorship laws in the context of the
constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the
state to safeguard the peace, well-being and general welfare of the people collide and clash with
the constitutional rights of individuals and religious institutions to evangelize, preach, promote,
teach, and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status
by the framers of our fundamental laws, past and present." Religious freedom is absolute when it is
confined within the realm of thought to a private, personal relationship between a man's
conscience and his God, but it is subject to regulation when religious belief is transformed into
external acts that affect or afflict others. The mere invocation of religious freedom will not
stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the
MTRCB under P.D. 1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast" of pre-taped or canned (as contra-distinguished from "live") video-
audio/film/television programs and publicity materials. I regret I cannot go along with Mr.
Justice Mendoza's avante garde thesis that Section 3-c of P.D. 1986, from where the
above-quoted words were taken, is "upon its face and as applied, unconstitutional." I note
the extensive materials, particularly from American cases, buttressing his cogent stand, but,
after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that in
America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials
but not to religious programs, particularly those of INC, which it claims are neither "immoral" nor
"indecent". This position presents more problems than solutions. For who will determine whether a
given canned material is religious or not, and therefore whether it can be publicly exhibited or not
without its passing through the Board? I would prefer that the State, which is constitutionally
mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested
interests would, in the normal course, be understandably biased in his/its own favor. I feel less
discomfort with the idea of maintaining the censors' quasi-judicial authority to review such film
materials, subject to appeal to the proper courts by aggrieved parties, than with the prospect and
consequences of doing away with such power altogether. I agree with Mr. Justice Vitug in finding
"it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an
opportunity to pass upon the matter . . ." A contrary ruling would most regrettably remove
meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak 4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr., 5 this Court
early on acknowledged the uniquely pervasive presence of broadcast and electronic media in the
lives of everyone, and the easy accessibility of television and radio to just about anyone, especially
children. Everyone is susceptible to their influence, even "the indifferent or unwilling who happen to
be within reach of a blaring radio or television set." 6 And these audiences have less opportunity to
cogitate, analyze and reject the utterances, compared to readers of printed material. 7 It is precisely
because the State as parens patriae is "called upon to manifest an attitude of caring for the welfare
of the young" 8 that I vote for the retention of the State's power of review and prohibition via the
MTRCB. High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but
be admired. Yet, no matter how devoutly we may wish it, not all the people share the same
mindset and views nor, needless to say, the same viewpoint, i.e., the ivory tower window. Hence,
we must prudently anticipate that abuses against the public weal are likely to be committed where
absolute permissiveness is the norm. Would that, with the total absence of censorship or review,
there occur a significant increase in religious, spiritual or morally uplifting prime-time programming!
But realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-
oriented advertising, unadulterated violence and outright pandering to phone-sex addicts and the
simply curious. The fact that even the Net is not free of pornographic slime is no excuse to let
down all reasonable barriers against broadcast media offerings of muck, moral depravity and
mayhem. And definitely, there is no good and sensible reason for the State to abdicate its vital role
as parens patriae, in the guise of copying American constitutional precedents, which I respectfully
submit, are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act
prudently. And it can do so ONLY if it exercizes its powers of review and prohibition according to a
standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck
down as an unconstitutional standard. This is martial law vintage and should be replaced with the
more libertarian "clear and present danger rule" which is eloquently esplained by JJ. Kapunan,
Puno and Mendoza (and which explanation I shall not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate
standard in the Philippine context proffered by the law itself, and that is "contemporary Philippine
cultural values." This standard under the law, should be used in determining whether a film or
video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good custom, and (d)
injurious to the prestige of the Republic of the Philippines or its people." On the other hand, when
the question is whether the material being reviewed "encourages the commission of violence or of
a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger"
principle should be applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang,
pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa,
pakikitungo, hiya, delikadesa, awa, tiwala, maka-Diyos, maka-tao, maka-buhay and so forth, define
us as a people, as Filipinos. We are who and what we are because of these values and ideals.
They delimit the areas of individual and social behavior and conduct deemed acceptable or
tolerable, and ultimately they determine the way we as individuals uniquely conduct our
relationships and express ourselves. According to Mr. Justice Kapunan, applying contemporary
Filipino values to religious thought and expression will permit an "overarching" into a
constitutionally protected area, and provides the MTRCB with a veiled excuse for clamping down
against unorthodox religious thought and expression. But such fear is highly speculative and totally
unsupported by empirical evidence. I would like to add that where a mode of religious expression
runs counter to such core values, serious questions have to be raised about the ultimate
redeeming worth of such expression. An example is in order. Not too long ago, the so-called
"Children of God" blew into town, and, under the guise of proselytizing, practised "flirty-fishing"
(free sex). I wonder how many of us will simply sit on our hands if these "Children" were to telecast
their religious programs for OUR children to watch, or conduct seminars over the airwaves on the
hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in
agreement with the ponencia that the practice of religion cannot be totally abandoned to the
market place and governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to
prohibit the showing of materials "which clearly constitute an attack against any race, creed or
religion . . .", I agree with Mr. Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be
read together with other existing laws such as, for instance, the provisions of the Revised Penal
Code, particularly Article 201, which prohibit the exhibition of shows that 'offend another race or
religion.'" Indeed, where it can be shown that there is a clear and present danger that a religious
program could agitate or spark a religious strife of such extent and magnitude as to be injurious to
the general welfare, the Board may "X-rate" it or delete such portions as may reasonably be
necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some Middle East
countries due to exacerbated religious antagonisms should be enough lesson for all of us.
Religious wars can be more ravaging and damaging than ordinary crimes. If it is legal and in fact
praiseworthy to prevent the commission of, say, the felony of murder in the name of public welfare
why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal
and less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows
which "attack" a religion, whereas Art. 201 merely penalize; those who exhibit programs which
"offend" such religion. Subject to changing the word "attack" with the more accurate "offend". I
believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or
interpretation) of the words "dangerous tendency" with the phrase (or as meaning) "clear and
present danger" in Sec. 3-c: and (2) that Sec. 4 of the Board's Rules would be likewise valid,
providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA

PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of
P.D. 1986 in prohibiting the public telecasting of the Iglesia program. In short, did the INC series
"offend" a religion? Juridically stated, did the respondent MTRCB use "contemporary Filipino
cultural values" in determining that said series offended another religion such as to constitute a
clear and present danger of a religions strife which is injurious to public welfare? [Note: I advisedly
used both the "values" and "clear and present" standards in framing the question because the INC
program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never
submitted to the Court for viewing. Neither was there a detailed description of its objectionable
contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there
extant a detailed justification prepared by respondent Board on why it banned the program - other
than its bare conclusion that the material constituted an attack against the Catholic and Protestant
religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered
sufficient justification for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize
a suppression of a species of the freedom of speech on the say-so of anyone - not even of the
MRTCB. Paraphrasing People v. Fernando, 9 the disputable presumption (which is of statutory
origin) that official duties have been regularly performed must yield to the constitutionally enshrined
freedoms of expression and of religion. If courts are required to state the factual and legal bases of
their conclusions and judicial dispositions, with more reason must quasi-judicial officers such as
censors, especially when they curtail a fundamental right which is "entitled to the highest priority
and amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify
its conclusion thru the use of the proper standards that the tapes in question offended another
religion, I vote to GRANT the petition insofar as it prays for the showing of said programs.
However, I vote to DENY the petition insofar as allowing the INC to show its pretaped programs
without first submitting them forreview by the MTRCB.
PADILLA, J., concurring and dissenting:
I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's
TV Program Series Nos. 115, 119 and 121. However, I disagree with that part of the majority
opinion which upholds the power of respondent Board to subject to prior restraint petitioner's
religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no
prior restraints on the exercise of free speech expression or religion unless such exercise poses a
clear and present danger of a substantive evil which the State has the right and even the duty to
prevent. The ban against such prior restraints will result, as it has resulted in the past, in
occasional abuses of free speech and expression but it is immeasurably preferable to experience
such occasional abuses of speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in accordance with legislativev
standards which albeit apparently laudable in their nature, can very well be bent or stretched by
such agency to convenient latitudes as to frustrate and eviscerate the precious freedoms of
speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and
religion, is afforded, under our system, the remedy of redress in the courts of law, justice and
equity.
In short, it is far better for the individual to live in a climate of free speech and free expression,
devoid of prior restraints, even at the risk of occasional excesses of such freedoms than to exist in
an ambiance of censorship which is always a step closer to autocracy and dictatorship.
SUPREME COURT
Manila
EN BANC
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief
Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG,
Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon,
Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police
District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE
INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS,
Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG,
Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action
they held on September 26, 2005 was preempted and violently dispersed by the police. They
further assert that on October 5, 2005, a group they participated in marched to Malacañang to
protest issuances of the Palace which, they claim, put the country under an "undeclared" martial
rule, and the protest was likewise dispersed violently and many among them were arrested and
suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that
they conduct peaceful mass actions and that their rights as organizations and those of their
individual members as citizens, specifically the right to peaceful assembly, are affected by Batas
Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October
6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along
España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge.
Police officers blocked them along Morayta Street and prevented them from proceeding further.
They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability
of the State. To this end, the State shall ensure the free exercise of such right without prejudice to
the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang
227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.
(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established
by law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on
the premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate court of
law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court,
its decisions may be appealed to the appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial. Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set
out in said permit: Provided, however, That no person can be punished or held criminally
liable for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after
the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders,
ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September
21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of
the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting
of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and
is thus repugnant to the freedom of expression clause as the time and place of a public assembly
form part of the message for which the expression is sought. Furthermore, it is not content-neutral
as it does not apply to mass actions in support of the government. The words "lawful cause,"
"opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the
government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies
against the government because they are being tolerated. As a content-based legislation, it cannot
pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it
puts a condition for the valid exercise of that right. It also characterizes public assemblies without a
permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of
publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly
wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even
before the rallyists can perform their act, and that no law, ordinance or executive order supports
the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates
the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor
Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National
Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police
District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public
officers and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that
the time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged
test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference
to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is
less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative
channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the
mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of
the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call
it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear
and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to
protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and
Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the
use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-
based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal
issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12

13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were
approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should
no longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing
developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected
by B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets
and parks. They have, in fact, purposely engaged in public assemblies without the required permits
to press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16
already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government
for a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed
by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of
Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people’s exercise of these rights. As early as the onset of this
century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even
went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on
the most righteous occasion and in the most peaceable manner would expose all those who took
part therein to the severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In
Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of the people recognized and guaranteed
by the constitutions of democratic countries. But it is a settled principle growing out of the nature of
well-ordered civil societies that the exercise of those rights is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate the exercise of such and
other constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil
rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the
State] has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." It bears repeating that
for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to 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.
There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be
abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso.
Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a promenade for public use," which
certainly is not the only purpose that it could serve. To repeat, there can be no valid reason
why a permit should not be granted for the proposed march and rally starting from a public
park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis
Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire
P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue
or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent
portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply
the existence of an organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of
public highways has never been regarded as inconsistent with civil liberties but rather as
one of the means of safeguarding the good order upon which they ultimately depend. The
control of travel on the streets of cities is the most familiar illustration of this recognition of
social need. Where a restriction of the use of highways in that relation is designed to
promote the public convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances would be entitled to
protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects." There could be danger to
public peace and safety if such a gathering were marked by turbulence. That would deprive
it of its peaceful character. Even then, only the guilty parties should be held accountable. It
is true that the licensing official, here respondent Mayor, is not devoid of discretion in
determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled for a specific public place – is
that the permit must be for the assembly being held there. The exercise of such a right, in
the language of Justice Roberts, speaking for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If
it were a private place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus
if so minded, they can have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, --
even more so than on the other departments – rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitiously termed by
Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying as
they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing B.P. No. 880
(G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not
required.-- A written permit shall be required
125 SCRA 553, 569) for any person or persons to organize and
hold a public assembly in a public place.
8. By way of a summary. The applicants for a However, no permit shall be required if the
permit to hold an assembly should inform the public assembly shall be done or made in a
licensing authority of the date, the public place freedom park duly established by law or
where and the time when it will take place. If it ordinance or in private property, in which case
were a private place, only the consent of the only the consent of the owner or the one
owner or the one entitled to its legal entitled to its legal possession is required, or
possession is required. Such application in the campus of a government-owned and
should be filed well ahead in time to enable operated educational institution which shall be
the public official concerned to appraise subject to the rules and regulations of said
whether there may be valid objections to the educational institution. Political meetings or
grant of the permit or to its grant but at rallies held during any election campaign
another public place. It is an indispensable period as provided for by law are not covered
condition to such refusal or modification that by this Act.
the clear and present danger test be the
standard for the decision reached. If he is of Sec. 5. Application requirements.-- All
the view that there is such an imminent and applications for a permit shall comply with the
grave danger of a substantive evil, the following guidelines:

applicants must be heard on the matter.
Thereafter, his decision, whether favorable or (a) The applications shall be in writing
adverse, must be transmitted to them at the and shall include the names of the
earliest opportunity. Thus if so minded, they leaders or organizers; the purpose of
can have recourse to the proper judicial such public assembly; the date, time
authority. and duration thereof, and place or
streets to be used for the intended
activity; and the probable number of
persons participating, the transport and
the public address systems to be used.
(b) The application shall incorporate the

duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with

the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least
five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application,

which must be duly acknowledged in
writing, the office of the city or
municipal mayor shall cause the same
to immediately be posted at a
conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or

any official acting in his behalf to issue
or grant a permit unless there is clear
and convincing evidence that the public
assembly will create a clear and
present danger to public order, public
safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in

his behalf shall act on the application
within two (2) working days from the
date the application was filed, failing
which, the permit shall be deemed
granted. Should for any reason the
mayor or any official acting in his behalf
refuse to accept the application for a
permit, said application shall be posted
by the applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.
(c) If the mayor is of the view that there

is imminent and grave danger of a
substantive evil warranting the denial or

modification of the permit, he shall
immediately inform the applicant who
must be heard on the matter.
(d) The action on the permit shall be in

writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in

his behalf denies the application or
modifies the terms thereof in his permit,
the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the

Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the
Intermediate Appellate Court, its
decisions may be appealed to the
appropriate court within forty-eight (48)
hours after receipt of the same. No
appeal bond and record on appeal shall
be required. A decision granting such
permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this

section shall be decided within twenty-
four (24) hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the executive
judge for disposition or, in his absence,
to the next in rank.
(h) In all cases, any decision may be

appealed to the Supreme Court.
(i) Telegraphic appeals to be followed

by formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted
to in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the
time, place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it
content-based because assemblies really have to be for lawful causes, otherwise they would not
be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based, since they can refer to any subject.
The words "petitioning the government for redress of grievances" come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and
benefit of all rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by

common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration,
march, parade, procession or any other form of mass or concerted action held in a public place."
So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress
has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the
regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard –
the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger
of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent
standard. As to whether respondent Mayor has the same power independently under Republic Act
No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the
parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition
at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after
the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality
set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may
be required for the exercise of such right in any public park or plaza of a city or municipality until
that city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with
the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the
"highest degree of restraint that the military, police and other peacekeeping authorities shall
observe during a public assembly or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it
to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure a permit when holding rallies
thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount
of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the
notion that law enforcers would shirk their responsibility of keeping the peace even when
confronted with dangerously threatening behavior. I wanted to send a message that we would no
longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly enforce a no permit, no rally
policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be
dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880.
It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any
law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law
itself, namely, maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end,
law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person
to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a
given date can, after two days from said date, rally in accordance with their application without the
need to show a permit, the grant of the permit being then presumed under the law, and it will be
the burden of the authorities to show that there has been a denial of the application, in which case
the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by
the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected to
heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of assemblies. Far from being
insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to
the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-
sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for
the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment
or designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition
in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of
the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to
differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum
tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas
Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(On Leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Asscociate Justice
CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

RENATO C. CORONA CONCHITA CARPIO MORALES

ROMEO J. CALLEJO, SR. DANTE O. TINGA

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

PRESBITERO J. VELASCO, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the cases were assigned to the writer of
the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Petition for Certiorari, Mandamus and Prohibition with Prayer for Temporary Restraining
Order filed by Bayan, Karapatan, Kilusang Magbubukid Ng Pilipinas (KMP), COURAGE,
GABRIELA, Fr. Jose A. Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar.
2
Petition for Prohibition, Injunction, Restraining Order and other Just and Equitable Reliefs
filed by Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita
Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos,
Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute,
Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier,
Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes,
Pedrito Fadrigon.
3
Petition for Certiorari, Prohibition and Mandamus with Prayer for Issuance of Restraining
Order filed by Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and
Secretary General Joel Maglunsod, National Federation of Labor Unions – Kilusang Mayo
Uno (NAFLU-KMU), represented by its National President, Joselito V. Ustarez, Antonio C.
Pascual, Salvador T. Carranza, Gilda Sumilang, Francisco Lastrella, and Roque M. Tan.
4
Petitioner Gilda Sumilang.
5
Petition, G.R. No. 169838, p. 29.

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CONSTI2 JAN.

G.R. No. 132231 March 31, 1998

EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,

There Is No Case or Controversy to Decide,

No Ad Ban, Only a Substitution of

Thus, §11(b) states:

xxx xxx xxx

governmental interest justifying the restriction.

Law Narrowly Drawn to Fit

Reform of The Marketplace of Ideas,

On the Claim that the Reforms

Failure of Legislative Remedy Bespeaks

Test for Content-Neutral Restrictions 33

The petition is DISMISSED.

PUNO, J., separate concurring;

A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING,

B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR AS THE

A. INSTEAD OF "LEVELING THE PLAYING FIELD," INSOFAR AS THE USE OF MASS

B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN, BECAUSE IT DOES NOT

C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD BAN BECAUSE

I vote to dismiss the petitions.

Melo, J., concurs.

VITUG, J., separate opinion;

xxx xxx xxx

Sec. 18. Prohibited forms of election propaganda. — It is unlawful

xxx xxx xxx

I vote to dismiss the petition.

Melo and Purisima, JJ., concur.

ROMERO, J., dissenting;

A foolish consistency is the hobgoblin of little minds . . . . 1

When, If At All, May The Court Reverse Itself?

xxx xxx xxx

xxx xxx xxx

In NPC v. COMELEC, the Court held that:

Are The Restrictions Imposed by Sec. 11(b) Of R.A.

Freedom Of Speech Expression Remains A Fresh

Government may regulate constitutionally protected speech in order to promote a compelling

Freedom of Expression Incompatible With Social Justice?

Buckley vs. Valeo and Existing US Jurisprudence

Freedom of Expression In Historical Context

Article 20 Neither shall any Filipino be deprived:

Quisumbing and Purisima, JJ., dissent.

PANGANIBAN, J., dissenting;

1. Ad Ban Not Pro-Poor

While a one-page black-and-white ad in a major daily costs about P100,000, it is replicated,

Candidates Should Not Be Denied

2. Ad Ban Not Limited;

Ad Ban Not Compensated for or

Quisumbing and Purisima, JJ., dissent.

PUNO, J., separate concurring;

A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING,

B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR AS THE

B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN, BECAUSE IT DOES NOT

C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD BAN BECAUSE

xxx xxx xxx

I vote to dismiss the petitions.

Melo, J., concurs.

xxx xxx xxx

Sec. 18. Prohibited forms of election propaganda. — It is unlawful

xxx xxx xxx

Melo and Purisima, JJ., concur.

ROMERO, J., dissenting;

A foolish consistency is the hobgoblin of little minds . . . . 1