KILOSBAYAN VS.

GUINGONA
232 SCRA 110 – Business Organization – Corporation Law – PCSO’s Charter
In 1993, the Philippine Charity Sweepstakes Office decided to put up an on-line lottery system which will
establish a national network system that will in turn expand PCSO’s source of income.
A bidding was made. Philippine Gaming Management Corporation (PGMC) won it. A contract of lease was
awarded in favor of PGMC.
Kilosbayan opposed the said agreement between PCSO and PGMC as it alleged that:

1. PGMC does not meet the nationality requirement (Sec 11, Art. 12of the Constitution) because it is 75%
foreign owned (owned by a Malaysian firm Berjaya Group Berhad);
2. PCSO, under Section 1 of its charter (RA 1169), is prohibited from holding and conducting lotteries “in
collaboration, association or joint venture with any person, association, company or entity”;
3. The network system sought to be built by PGMC for PCSO is a telecommunications network. Under the
law (Act No. 3846), a franchise is needed to be granted by the Congress before any person may be allowed
to set up such;
4. PGMC’s articles of incorporation, as well as the Foreign Investments Act (R.A. No. 7042) does not allow it
to install, establish and operate the on-line lotto and telecommunications systems.

PGMC and PCSO alleged that PGMC is not a collaborator but merely a contractor for a piece of work, i.e.,
the building of the network; that PGMC is a mere lessor of the network it will build as evidenced by the
nature of the contract agreed upon, i.e., Contract of Lease.
ISSUE:
Whether or not petitioners have legal standing
Whether or not Kilosbayan is correct.
HELD: Yes, but only on issues 2, 3, and 4.

1. The issues raised are of paramount public interest. The issues immeasurably affect the social, economic,
and moral well-being of the people.
2. On the issue of nationality, it seems that PGMC’s foreign ownership was reduced to 40% though.
3. On issues 2, 3, and 4, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits the PCSO from
holding and conducting lotteries “in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign.” There is undoubtedly a collaboration between PCSO and
PGMC and not merely a contract of lease. The relations between PCSO and PGMC cannot be defined
simply by the designation they used, i.e., a contract of lease. Pursuant to the wordings of their agreement,
PGMC at its own expense shall build, operate, and manage the network system including its facilities
needed to operate a nationwide online lottery system. PCSO bears no risk and all it does is to provide its
franchise – in violation of its charter. Necessarily, the use of such franchise by PGMC is a violation of Act
No. 3846.
 David vs Arroyo
G.R. No. 171396 May 3, 2006

Facts: On February 24, 2006, President Arroyo issued PP 1017 declaring a state of national
emergency, on the same day, the President issued G. O. No. 5 implementing PP 1017.

Petitioners contend that PP 1017 is void on its face because of its “overbreadth.” They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a “chilling effect” to the citizens.
Issue: 1.Whether PP 107 is void because of its “overbreadth”
2. Whether PP 1017 and G.O. No. 5 are unconstitutional

Held:
(1) No. A facial review of PP 1017, using the overbreadth doctrine and void for vagueness, is uncalled
for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces”
statutes in free speech cases, also known under the American Law as First Amendment cases.
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct.
It is actually a call upon the AFP to prevent or suppress all forms of lawless violence.

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects legitimate
state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.”
Undoubtedly, lawless violence, insurrection and rebellion are considered “harmful” and “constitutionally
unprotected conduct

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek
to regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly
and only as a last resort,” and is “generally disfavored;”

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show whether this situation exists.
A facial review of PP 1017 on the ground of vagueness is likewise unwarranted.

Related to the “overbreadth” doctrine is the “void for vagueness doctrine” which holds that “a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and differ as
to its application.” It is subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing “on their faces” statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed
to establish that men of common intelligence cannot understand the meaning and application of PP 1017.

(2) The Petitions are partly granted.

First Provision: Calling Out Power
The Court ruled that the calling out power is CONSTITUTIONAL.

PP 1017 is not a declaration of Martial law but a declaration of a state of rebellion which is allowed under
Administrative Code. Pres. Arroyo calls on the AFP to prevent and supress lawless violence. It was merely
an act declaring a status or condition of public moment or interest without legal significance and deemed
not written

Second Provision: Tale Care Power

This Court rules that the assailed PP 1017 is UNCONSTITUTIONAL insofar as it grants President Arroyo
the authority to promulgate “decrees.”

This pertains to the power of the President to ensure that the laws be faithfully executed ( Sec. 17, Art 7).
Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial
Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative
power by issuing decrees.

Third Provision: Power to Take Over

In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

Distinction must be drawn between the President’s authority to declare a “state of national emergency”
and to exercise emergency powers. State of national emergency is within the power of the President
under Section 18, Article VII while the exercise of emergency power belongs to the Congress.

EXCEPTION: However, knowing that during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow
Congress to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

The taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest,” it refers to Congress, not the
President. Now, whether or not the President may exercise such power is dependent on whether Congress
may delegate it to him pursuant to a law prescribing the reasonable terms thereof.

Let it be emphasized that while the President alone can declare a state of national emergency, however,
without legislation, he has no power to take over privately-owned public utility or business affected with
public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of businesses
affected with public interest that should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers
act passed by Congress.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is “necessary and appropriate actions and measures to suppress
and prevent acts of lawless violence.” Considering that “acts of terrorism” have not yet been defined
and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.
 Belgica, et al. vs. Executive Secretary, et al.,
G.R. Nos. 208566, 208493 & 209251, November 19, 2013

FACTS

HISTORY of CONGRESSIONAL PORK BARREL

 The term “pork barrel”, a political parlance of American-English origin, refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring money to a
representative’s district.

 The earliest form of the pork barrel system is found in Section 3 of Act 3044, otherwise known as the
Public Works Act of 1922. Under this provision, release of funds and realignment of unexpended portions
of an item or appropriation were subject to the approval of a joint committee elected by the Senate and
the House of Representatives.

 In 1950, members of Congress, by virtue of being representatives of the people, also became involved in
project identification.

 The pork barrel system was temporarily discontinued when martial law was declared.

 It reappeared in 1982 through an item in the General Appropriations Act (“GAA”) called “Support for Local
Development Projects” (“SLDP”). SLDP started the giving of lump-sum allocations to individual
legislators. The SLDP also began to cover not only public works project or “hard projects” but also covered
“soft projects” such as those which would fall under education, health and livelihood.

 After the EDSA People Power Revolution and the restoration of democracy, the pork barrel was revived
through the “Mindanao Development Fund” and the “Visayas Development Fund”.

 In 1990, the pork barrel was renamed “Countrywide Development Fund” (“CDF”). The CDF was meant
to cover small local infrastructure and other priority community projects.

 CDF Funds were, with the approval of the President, released directly to implementing agencies subject
to the submission of the required list of projects and activities. Senators and congressmen could identify
any kind of project from “hard projects” such as roads, buildings and bridges to “soft projects” such as
textbooks, medicines, and scholarships.

 In 1993, the CDF was further modified such that the release of funds was to be made upon the submission
of the list of projects and activities identified by individual legislators. This was also the first time when the
Vice-President was given an allocation.

 The CDF contained the same provisions from 1994-1996 except that the Department of Budget and
Management was required to submit reports to the Senate Committee on Finance and the House
Committee on Appropriations regarding the releases made from the funds.

 Congressional insertions (“CIs”) were another form of congressional pork barrel aside from the
CDF. Examples of the CIs include the DepEd School Building Fund, the Congressional Initiative
Allocations, and the Public Works Fund, among others.

 The allocations for the School Building Fund were made upon prior consultation with the representative
of the legislative district concerned and the legislators had the power to direct how, where and when these
appropriations were to be spent.

 In 1999, the CDF was removed from the GAA and replaced by three separate forms of CIs: (i) Food
Security Program Fund, (ii) Lingap Para sa Mahihirap Fund, and (iii) Rural/Urban Development
 Infrastructure Program Fund. All three contained a provision requiring prior consultation with members of
Congress for the release of funds.

 In 2000, the Priority Development Assistance Fund (“PDAF”) appeared in the GAA. PDAF required prior
consultation with the representative of the district before the release of funds. PDAF also allowed
realignment of funds to any expense category except personal services and other personnel benefits.

 In 2005, the PDAF introduced the program menu concept which is essentially a list of general programs
and implementing agencies from which a particular PDAF project may be subsequently chosen by the
identifying authority. This was retained in the GAAs from 2006-2010.

 It was during the Arroyo administration when the formal participation of non-governmental organizations
in the implementation of PDAF projects was introduced.

 The PDAF articles from 2002-2010 were silent with respect to specific amounts for individual legislators.

 In 2011, the PDAF Article in the GAA contained an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President. It also contained a provision on realignment of funds but
with the qualification that it may be allowed only once.

 The 2013 PDAF Article allowed LGUs to be identified as implementing agencies. Legislators were also
allowed to identify programs/projects outside of his legislative district. Realignment of funds and release
of funds were required to be favorably endorsed by the House Committee on Appropriations and the
Senate Committee on Finance, as the case may be.

MALAMPAYA FUNDS AND PRESIDENTIAL SOCIAL FUND

 The use of the term pork barrel was expanded to include certain funds of the President such as the
Malampaya Fund and the Presidential Social Fund (“PSF”).

 The Malampaya Fund was created as a special fund under Section 8 of Presidential Decree (“PD”) No.
910 issued by President Ferdinand Marcos on March 22, 1976.

 The PSF was created under Section 12, Title IV of PD No. 1869, or the Charter of the Philippine
Amusement and Gaming Corporation (“PAGCOR”), as amended by PD No. 1993. The PSF is managed
and administered by the Presidential Management Staff and is sourced from the share of the government
in the aggregate gross earnings of PAGCOR.

PORK BARREL MISUSE

 In 1996, Marikina City Representative Romeo Candozo revealed that huge sums of money regularly went
into the pockets of legislators in the form of kickbacks.

 In 2004, several concerned citizens sought the nullification of the PDAF but the Supreme Court dismissed
the petition for lack of evidentiary basis regarding illegal misuse of PDAF in the form of kickbacks.

 In July 2013, the National Bureau of Investigation probed the allegation that a syndicate defrauded the
government of P10 billion using funds from the pork barrel of lawmakers and various government agencies
for scores of ghost projects.

 In August 2013, the Commission on Audit released the results of a three-year audit investigation detailing
the irregularities in the release of the PDAF from 2007 to 2009.

 Whistle-blowers also alleged that at least P900 million from the Malampaya Funds had gone into a dummy
NGO.
 ISSUE/S
SUBSTANTIVE ISSUES

 Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws are unconstitutional
for violating the constitutional provisions on (a) separation of powers, (b) non-delegability of legislative
power, (c) checks and balances, (d) accountability, (e) political dynasties, (f) local autonomy.

RULING

PROCEDURAL ISSUES

(a) There is an actual and justiciable controversy

 The case is ripe for adjudication since the challenged funds and the laws allowing for their utilization are
currently existing and operational and thereby posing an immediate or threatened injury to petitioners.

 The “moot and academic principle” cannot stop the Court from deciding the case considering that: (a)
petitioners allege grave violation of the constitution, (b) the constitutionality of the pork barrel system
presents a situation of exceptional character and is a matter of paramount public interest, (c) there is a
practical need for a definitive ruling on the system’s constitutionality to guide the bench, the bar and the
public, and (d) the preparation and passage of the national budget is an annual occurrence.

(c) Petitioners have legal standing to sue

 Petitioners have legal standing by virtue of being taxpayers and citizens of the Philippines. As taxpayers,
they are bound to suffer from the unconstitutional usage of public funds. As citizens, the issues they have
raised are matters of transcendental importance, of overreaching significance to society, or of paramount
public interest.

SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL

(a) The separation of powers between the Executive and the Legislative Departments has been violated.

 The post-enactment measures including project identification, fund release, and fund realignment are not
related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume
duties that properly belong to the sphere of budget execution which belongs to the executive department
violating the principle of separation of powers and thus, unconstitutional.

 Respondents also failed to prove that the role of the legislators is only recommendatory in nature. They
even admitted that the identification of the legislator constitutes a mandatory requirement before the PDAF
can be tapped as a funding source.

(b)The principle of non-delegability of legislative powers has been violated

 The 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual
legislators, violates the principle of non-delegability since said legislators are effectively allowed to
individually exercise the power of appropriation, which – as settled in Philconsa – is lodged in Congress.

 The legislators are individually exercising the power of appropriation because each of them determines
(a) how much of their PDAF fund would go to and (b) a specific project or beneficiary that they themselves
also determine.
 (c) Checks and balances

 Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit
since the said amount would be further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion.

 This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a
―budget within a budget which subverts the prescribed procedure of presentment and consequently
impairs the President‘s power of item veto. It forces the President to decide between (a) accepting the
entire PDAF allocation without knowing the specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.

(d) The Congressional Pork Barrel partially prevents accountability as Congress is incapable of
checking itself or its members.

 The conduct of oversight would be tainted as said legislators, who are vested with post-enactment
authority, would, in effect, be checking on activities in which they themselves participate.

 The concept of post-enactment authorization violates Section 14, Article VI of the 1987 Constitution, which
prohibits members of Congress to intervene in any matter before any office of the Government, because
it renders them susceptible to taking undue advantage of their own office.

(e) The constitutional provision regarding political dynasties is not self-executing.

 Since there appears to be no standing law which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.

(f) The Congressional Pork Barrel violates constitutional principles on local autonomy

 The Congressional Pork Barrel goes against the constitutional principles on local autonomy since it allows
district representatives, who are national officers, to substitute their judgments in utilizing public funds for
local development.

 The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into
account the specific interests and peculiarities of the district the legislator represents.
 People v. Vera
65 Phil 56

FACTS:
Defendant Mariano Cu applied for probation under the provisions of Act No. 4421 otherwise known as
The Probation Act. Original action for certiorari and prohibition was filed to prohibit the Court of first
Instance of Manila from taking any further action in entertaining the aforementioned application for
probation on the ground that Act No. 4421 is unconstitutional for being an undue delegation of legislative
power.

The challenged provision of the said Act was Section 11 thereof which read: “This Act shall apply only in
those provinces in which the respective provincial boards have provided for the salary of a probation
officer rates not lower than those now provided for provincial fiscals. Said probation officer shall be
appointed by Secretary of Justice and shall be subject to the direction of the Probation Office.”

ISSUE:
(a) Whether or not the provision in question constitute an unconstitutional delegation of
legislative power
(b) Whether or not the said act denies the equal protection of the laws
RULINGS:
(a) YES. The Probation Act does not, by the force of any of its provisions, fix and impose upon the
provincial boards any standard or guide in the exercise of their discretionary power. The
Legislature does not seemingly on its own authority extend the benefits of the Probation Act to
the provinces but in reality leaves the entire matter for the various provincial boards to determine.
In other words, the provincial boards of the various provinces are to determine themselves,
whether the Probation Law shall apply to their provinces or not at all.

The applicability and application of the Probation Act are entirely places in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all
that it has to do is to decline to appropriate needed amount for the salary of a probation officer.

The presence/absence of a standard or rule of action – or the sufficiency thereof – in the statute,
to aid the delegate in exercising the granted discretion. As a rule, an act of the legislature in
incomplete and hence invalid if it does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of the discretionary powers
delegated to it.

(b) YES. Due to the unwarranted delegation of legislative power, some provinces may choose to
adopt the law or not, thus denying the equal protection of laws. It is unconstitutional.
 LIM v. EXECUTIVE SECRETARY
GR No. 151445, 2002-04-11

FACTS:

Beginning January of year 2002, personnel from the armed forces of the United States of America started
arriving in Mindanao to take part, in conjunction with the Philippine military, in “Balikatan 02-1.” They are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty a bilateral defense
agreement entered into by the Philippines and the United States in 1951. Its aim is to enhance the
strategic and technological capabilities of our armed forces through joint training with its American
counterparts; the “Balikatan” is the largest such training exercise directly supporting the MDT’s objectives.
It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and
prohibition, attacking the constitutionality of the joint exercise. The petitioners alleged that “Balikatan-02-
1” is not covered by the Mutual Defense Treaty (MDT) between the Philippines and the United States.
Petitioners posited that the MDT only provides for mutual military assistance in case of armed attack by
an external aggressor against the Philippines or the US. Petitioners also claim that the Visiting Forces
Agreement (VFA) does not authorize American Soldiers to engage in combat operations in Philippine
Territory.

Issue:

Is the “Balikatan-02-1” inconsistent with the Philippine Constitution?

Ruling:

The MDT is the core of the defense relationship between the Philippines and the US and it is the VFA which
gives continued relevance to it. Moreover, it is the VFA that gave legitimacy to the current Balikatan
exercise.

The constitution leaves us no doubt that US Forces are prohibited from engaging war on Philippine territory.
This limitation is explicitly provided for in the Terms of Reference of the Balikatan exercise. The issues that
were raised by the petitioners was only based on fear of future violation of the Terms of Reference.

Based on the facts obtaining, the Supreme court find that the holding of “Balikatan-02-1” joint military
exercise has not intruded into that penumbra of error that would otherwise call for the correction on its part.

The petition and the petition-in-intervention is DISMISSED.

 Echegaray vs. Secretary of Justice
G.R. No. 132601, January 19, 1999

Facts: Leo Echegaray is a convict subject to lethal injection (RA 8177). On January 4, 1999, the SC
issued a TRO staying the execution of petitioner Leo Echegaray scheduled on that same day. The public
respondent Justice Secretary assailed the issuance of the TRO arguing that the action of the SC not only
violated the rule on finality of judgment but also encroached on the power of the executive to grant
reprieve.

Issue: Whether or not the SC, after the decision in the case becomes final and executory, still has
jurisdiction over the case

Held: The finality of judgment does not mean that the SC has lost all its powers or the case. By the finality
of the judgment, what the SC loses is its jurisdiction to amend, modify or alter the same. Even after the
judgment has become final, the SC retains its jurisdiction to execute and enforce it.

The power to control the execution of the SC’s decision is an essential aspect of its jurisdiction. It cannot
be the subject of substantial subtraction for the Constitution vests the entirety of judicial power in one SC
and in such lower courts as may be established by law. The important part of a litigation, whether civil or
criminal, is the process of execution of decisions where supervening events may change
the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to
prevent unfairness. It is because of these unforeseen, supervening contingencies that courts have been
conceded the inherent and necessary power of control of its processes and orders to make them conform
to law and justice.

The Court also rejected public respondent’s contention that by granting the TRO, the Court has in
effect granted reprieve which is an executive function under Sec. 19, Art. VII of the Constitution. In truth,
an accused who has been convicted by final judgment still possesses collateral rights and these rights
can be claimed in the appropriate courts. For instance, a death convict who becomes insane after his final
conviction cannot be executed while in a state of insanity. The suspension of such a death sentence is
indisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects are the same as the temporary suspension of the execution of the death convict. In the
same vein, it cannot be denied that Congress can at any time amend the Death Penalty Law by reducing
the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of
sentence. But the exercise of Congress of its plenary power to amend laws cannot be considered as a
violation of the power of the President to commute final sentences of conviction. The powers of the
Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other
for the simple reason that there is no higher right than the right to life. To contend that only the Executive
can protect the right to life of an accused after his final conviction is to violate the principle of co-equal
and coordinate powers of the 3 branches of the government.
 CHAVEZ vs. GONZALES
G.R. No. 168338, February 15, 2008

FACTS:
On 6 June 2005, Presidential spokesperson Bunye held a press conference in Malacañang Palace,
where he played before the presidential press corps two compact disc recordings of conversations
between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but
claimed that the contents of the second compact disc had been “spliced” to make it appear that President
Arroyo was talking to Garcillano. Respondent Gonzalez ordered the NBI to investigate media
organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-
Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the
Garci Tapes is a ” cause for the suspension, revocation and/or cancellation of the licenses or
authorizations” issued to them. On 14 June 2005, NTC officers met with officers of the broadcasters
group KBP, to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing
commitment to press freedom

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the
“acts, issuances, and orders” of the NTC and respondent Gonzalez (respondents) on the following
grounds: (1) respondents’ conduct violated freedom of expression and the right of the people to
information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC
acted ultra vires when it warned radio and television stations against airing the Garci Tapes.

ISSUE: The principal issue for resolution is whether the NTC warning embodied in the press release of
11 June 2005 constitutes an impermissible prior restraint on freedom of expression.

Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression
is an indispensable condition to the exercise of almost all other civil and political rights. Freedom of
expression allows citizens to expose and check abuses of public officials. Freedom of expression allows
citizens to make informed choices of candidates for public office.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the
Constitution commands that freedom of expression shall not be abridged. However, there are exceptions
to this rule out of necessity such as:

pornography,
false or misleading advertisement,
advocacy of imminent lawless action, and
danger to national security.

Any content-based prior restraint on protected expression is unconstitutional without exception. A

protected expression means what it says – it is absolutely protected from censorship. Thus, there can be
no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of
treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.
If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it
burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of
the expression in public places without any restraint on the content of the expression. Courts will subject
content-neutral restraints to intermediate scrutiny. An example of a content-neutral restraint is a permit
specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior
restraint on protected expression which does not touch on the content of the expression enjoys the
presumption of validity and is thus enforceable subject to appeal to the courts.
Expression that may be subject to prior restraint is unprotected expression or low-value expression. By
definition, prior restraint on unprotected expression is content-based since the restraint is imposed
because of the content itself. In this jurisdiction, there are currently only four categories of unprotected
expression that may be subject to prior restraint. This Court recognized false or misleading advertisement
as unprotected expression only in October 2007.

Only unprotected expression may be subject to prior restraint. However, any such prior restraint on
unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional.
Second, the government bears a heavy burden of proving the constitutionality of the prior restraint.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment.
Although subsequent punishment also deters expression, still the ideas are disseminated to the public.
Prior restraint prevents even the dissemination of ideas to the public.

While there can be no prior restraint on protected expression, such expression may be subject to
subsequent punishment,27 either civilly or criminally. Similarly, if the unprotected expression does not
warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or
criminally. Libel falls under this class of unprotected expression.
However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically
it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or
“hate speech” against a religious minority is not subject to subsequent punishment in this jurisdiction,
such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to
subsequent punishment. There must be a law punishing criminally the unprotected expression before
prior restraint on such expression can be justified.
The prevailing test in this jurisdiction to determine the constitutionality of government action imposing
prior restraint on three categories of unprotected expression – pornography,31 advocacy of imminent
lawless action, and danger to national security – is the clear and present danger test.32 The expression
restrained must present a clear and present danger of bringing about a substantive evil that the State has
a right and duty to prevent, and such danger must be grave and imminent.

Prior restraint on unprotected expression takes many forms – it may be a law, administrative regulation,
or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The
impermissible pressures need not be embodied in a government agency regulation, but may emanate
from policies, advisories or conduct of officials of government agencies.

3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or broadcasting of the
Garci Tapes by radio and television stations is a “cause for the suspension, revocation and/or
cancellation of the licenses or authorizations” issued to radio and television stations. The NTC warning,
embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes “is a continuing
violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to radio and TV stations.” Second, the Garci Tapes have not been authenticated, and
subsequent investigation may establish that the tapes contain false information or willful
misrepresentation.

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that
may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to
prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the
public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and
imminent character, that the State has a right and duty to prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes
constitutes a continuing violation of the Anti-Wiretapping Law. There is also the issue of whether a
wireless cellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a
violation of the Anti-Wiretapping Law. The radio and television stations were not even given an
opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang
Tibay v. Court of Industrial Relations.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC
also concedes that only “after a prosecution or appropriate investigation” can it be established that the
Garci Tapes constitute “false information and/or willful misrepresentation.” Clearly, the NTC admits that it
does not even know if the Garci Tapes contain false information or willful misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is
directed at the message of the Garci Tapes. The NTC’s claim that the Garci Tapes might contain “false
information and/or willful misrepresentation,” and thus should not be publicly aired, is an admission that
the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of the
four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci
Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly
improper conversations with a COMELEC Commissioner right after the close of voting in the last
presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on
the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. In
any event, public discussion on all political issues should always remain uninhibited, robust and wide
open.

The rule, which recognizes no exception, is that there can be no content-based prior restraint on
protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the
courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of the
State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint.
However, there is no claim here by respondents that the subject matter of the Garci Tapes involves
national security and publicly airing the tapes would endanger the security of the State.

The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes
is a matter of important public concern. The Constitution guarantees the people’s right to information on
matters of public concern. The remedy of any person aggrieved by the public airing of the Garci Tapes is
to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent
punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping
Law.