Republic of the Philippines ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic)

SUPREME COURT mag explain ka, kasi hanggang 10:00 p.m., kinabukasan
Manila hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-
aaply ka sa States, nag-aaply ka sa review mo, kung
FIRST DIVISION kakailanganin ang certification mo, kalimutan mo na kasi
hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-

G.R. No. 93833 September 28, 1995 cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka

SOCORRO D. RAMIREZ, petitioner,
vs. pumasok dito sa hotel. Magsumbong ka sa Union kung
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. gusto mo. Nakalimutan mo na kung paano ka nakapasok
dito "Do you think that on your own makakapasok ka kung
hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

KAPUNAN, J.:
ESG — Kaso ilang beses na akong binabalikan doon ng
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of mga no (sic) ko.
Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the
latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and
in a manner offensive to petitioner's dignity and personality," contrary to morals, good ESG — Nakalimutan mo na ba kung paano ka pumasok sa
hotel, kung on your own merit alam ko naman kung gaano
customs and public policy."1
ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka
papasa.
In support of her claim, petitioner produced a verbatim transcript of the event and sought
moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's CHUCHI — Kumuha kami ng exam noon.
discretion. The transcript on which the civil case was based was culled from a tape recording
of the confrontation made by petitioner.2 The transcript reads as follows: ESG — Oo, pero hindi ka papasa.

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
M'am.
ESG — Kukunin ka kasi ako.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa
'yo, nakalimot ka na kung paano ka napunta rito, porke CHUCHI — Eh, di sana —
member ka na, magsumbong ka kung ano ang gagawin ko
sa 'yo. ESG — Huwag mong ipagmalaki na may utak ka kasi wala
kang utak. Akala mo ba makukuha ka dito kung hindi ako.
CHUCHI — Kasi, naka duty ako noon.
CHUCHI — Mag-eexplain ako.
ESG — Tapos iniwan no. (Sic)
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo,
CHUCHI — Hindi m'am, pero ilan beses na nila akong makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-
binalikan, sabing ganoon —
 sabihin mo kamag-anak ng nanay at tatay mo ang mga
magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob,
nasa labas ka puwede ka ng hindi pumasok, okey yan
nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan
na hindi ka makakapasok kung hindi ako. Kung hindi mo
kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi kung
baga sa no, nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako
makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of private communication, and
other purposes." An information charging petitioner of violation of the said Act, dated October
6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of
Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay
City Metro Manila, Philippines, and within the jurisdiction of
this honorable court, the above-named accused, Socorro D.
Ramirez not being authorized by Ester S. Garcia to record
the latter's conversation with said accused, did then and
there willfully, unlawfully and feloniously, with the use of a
tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said
recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO
M.
CUNETA
Asst. City
Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the
ground that the facts charged do not constitute an offense, particularly a violation of R.A.
4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with
petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2)
the violation punished by R.A. 4200 refers to a the taping of a communication by a
person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a
Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision
declaring the trial court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1
of R.A. 4200. In thus quashing the information based on the ground that the
facts alleged do not constitute an offense, the respondent judge acted in
grave abuse of discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which
respondent Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the
instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision
of Republic Act 4200 does not apply to the taping of a private conversation by one of the
parties to the conversation. She contends that the provision merely refers to the unauthorized
taping of a private conversation by a party other than those involved in the
communication.8 In relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200 penalizes the
taping of a "private communication," not a "private conversation" and that consequently, her
act of secretly taping her conversation with private respondent was not illegal under the said
act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its express
terms, and interpretation would be resorted to only where a literal interpretation would be
either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to whether the
party sought to be penalized by the statute ought to be a party other than or different from
those involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier "any".
Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to
a communication who records his private conversation with another without the knowledge of
the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's
conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private conversations or communications taken either by the
parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of
secrecy would not appear to be material. Now, suppose, Your Honor, the
recording is not made by all the parties but by some parties and involved not
criminal cases that would be mentioned under section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made not
necessarily by all the parties but perhaps by some in an effort to show the
intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your Honor,
that the intention is to cover it within the purview of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of
offense but as evidence to be used in Civil Cases or special proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded
conversations taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record
the observation of one without his knowing it and then using it against him. It
is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the
intention of the parties. I believe that all the parties should know that the
observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of the
board of directors where a tape recording is taken, there is no objection to
this if all the parties know. It is but fair that the people whose remarks and
observations are being made should know that the observations are being
recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say:
"Please be informed that whatever you say here may be used against you."
That is fairness and that is what we demand. Now, in spite of that warning,
he makes damaging statements against his own interest, well, he cannot
complain any more. But if you are going to take a recording of the
observations and remarks of a person without him knowing that it is being
taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the
bill as now worded, if a party secretly records a public speech, he would be
penalized under Section 1? Because the speech is public, but the recording
is done secretly.
 Senator Tañada: Well, that particular aspect is not contemplated by the bill. It agreeable falsehoods, and the expression of anti-social desires of views not
is the communication between one person and another person — not intended to be taken seriously. The right to the privacy of communication,
between a speaker and a public. among others, has expressly been assured by our Constitution. Needless to
state here, the framers of our Constitution must have recognized the nature
xxx xxx xxx of conversations between individuals and the significance of man's spiritual
nature, of his feelings and of his intellect. They must have known that part of
the pleasures and satisfactions of life are to be found in the unaudited, and
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
free exchange of communication between individuals — free from every
unjustifiable intrusion by whatever means.17
xxx xxx xxx
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
The unambiguity of the express words of the provision, taken together with the above-quoted wiretapping, we held that the use of a telephone extension for the purpose of overhearing a
deliberations from the Congressional Record, therefore plainly supports the view held by the private conversation without authorization did not violate R.A. 4200 because a telephone
respondent court that the provision seeks to penalize even those privy to the private extension devise was neither among those "device(s) or arrangement(s)" enumerated
communications. Where the law makes no distinctions, one does not distinguish. therein, 19 following the principle that "penal statutes must be construed strictly in favor of the
accused."20 The instant case turns on a different note, because the applicable facts and
Second, the nature of the conversations is immaterial to a violation of the statute. The circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute
substance of the same need not be specifically alleged in the information. What R.A. 4200 itself explicitly mentions the unauthorized "recording" of private communications with the use
penalizes are the acts of secretly overhearing, intercepting or recording private of tape-recorders as among the acts punishable.
communications by means of the devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by means of a tape recorder WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous
would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General and leaves us with no discretion, the instant petition is hereby DENIED. The decision
pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it appealed from is AFFIRMED. Costs against petitioner.
required that before one can be regarded as a violator, the nature of the conversation, as well
as its communication to a third person should be professed." 14
SO ORDERED.
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A.
4200 does not include "private conversations" narrows the ordinary meaning of the word
"communication" to a point of absurdity. The word communicate comes from the latin
word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by
which meanings or thoughts are shared between individuals through a common system of
symbols (as language signs or gestures)" 16 These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of "meanings or thoughts" which
are likely to include the emotionally-charged exchange, on February 22, 1988, between
petitioner and private respondent, in the privacy of the latter's office. Any doubts about the
legislative body's meaning of the phrase "private communication" are, furthermore, put to rest
by the fact that the terms "conversation" and "communication" were interchangeably used by
Senator Tañada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual
nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose.
Free conversationsare often characterized by exaggerations, obscenity,
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise
known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is
among the prohibited devices in Section 1 of the Act, such that its use to overhear a private
conversation would constitute unlawful interception of communications between the two
parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not
disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his
client Manuel Montebon were in the living room of complainant's residence
discussing the terms for the withdrawal of the complaint for direct assault
which they filed with the Office of the City Fiscal of Cebu against Leonardo
Laconico. After they had decided on the proposed conditions, complainant
made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to
come to his office and advise him on the settlement of the direct assault case
because his regular lawyer, Atty. Leon Gonzaga, went on a business trip.
According to the request, appellant went to the office of Laconico where he
was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen
to the telephone conversation through a telephone extension so as to hear
personally the proposed conditions for the settlement. Appellant heard
complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been
increased to P8,000.00. A breakdown of the P8,000.00 had been made
together with other demands, to wit: (a) P5,000.00 no longer for the teacher
Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu
City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don
Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of
Don Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier
filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas
Montebon's affidavit of desistance on the Direct Assault Case against Atty.
Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical
School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to
the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-
48).
Twenty minutes later, complainant called up again to ask Laconico if he was
agreeable to the conditions. Laconico answered 'Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March
10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to
his wife at the office of the then Department of Public Highways. Laconico
who earlier alerted his friend Colonel Zulueta of the Criminal Investigation
Service of the Philippine Constabulary, insisted that complainant himself
should receive the money. (tsn, March 10, 1982, pp. 26-33). When he
received the money at the Igloo Restaurant, complainant was arrested by
agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard
complainant demand P8,000.00 for the withdrawal of the case for direct
 assault. Laconico attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant. Since appellant listened
to the telephone conversation without complainant's consent, complainant
charged appellant and Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both
Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were
each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the
petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court,
holding that the communication between the complainant and accused Laconico was private
in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such
communication without the knowledge and consent of the complainant; and that the
extension telephone which was used by the petitioner to overhear the telephone conversation
between complainant and Laconico is covered in the term "device' as provided in Rep. Act
No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and
raises the following issues; (a) whether or not the telephone conversation between the
complainant and accused Laconico was private in nature; (b) whether or not an extension
telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c)
whether or not the petitioner had authority to listen or overhear said telephone conversation
and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed
in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding sentence, to knowingly possess any tape
record, wire record, disc record, or any other such record, or copies thereof,
of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish transcriptions thereof,
whether complete or partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in Section 3 hereof, shall not be
covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of
evidence. The issue is not the admissibility of evidence secured over an extension line of a
telephone by a third party. The issue is whether or not the person called over the telephone
and his lawyer listening to the conversation on an extension line should both face prison
sentences simply because the extension was used to enable them to both listen to an alleged
attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and
accused Atty. Laconico was "private" in the sense that the words uttered were made between
one person and another as distinguished from words between a speaker and a public. It is
also undisputed that only one of the parties gave the petitioner the authority to listen to and
overhear the caller's message with the use of an extension telephone line. Obviously,
complainant Pintor, a member of the Philippine bar, would not have discussed the alleged
demand for an P8,000.00 consideration in order to have his client withdraw a direct assault
charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another
lawyer was also listening. We have to consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by merely using a telephone line can force the
listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be
the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and
the extra heavy loads which telephone cables are made to carry in certain areas, telephone
users often encounter what are called "crossed lines". An unwary citizzen who happens to
pick up his telephone and who overhears the details of a crime might hesitate to inform police
authorities if he knows that he could be accused under Rep. Act 4200 of using his own
telephone to secretly overhear the private communications of the would be criminals. Surely
the law was never intended for such mischievous results.
The main issue in the resolution of this petition, however, revolves around the meaning of the
phrase "any other device or arrangement." Is an extension of a telephone unit such a device
or arrangement as would subject the user to imprisonment ranging from six months to six
years with the accessory penalty of perpetual absolute disqualification for a public officer or
deportation for an alien? Private secretaries with extension lines to their bosses' telephones
are sometimes asked to use answering or recording devices to record business
conversations between a boss and another businessman. Would transcribing a recorded
message for the use of the boss be a proscribed offense? or for that matter, would a "party
line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the
enumeration of "commonly known" listening or recording devices, nor do they belong to the
same class of enumerated electronic devices contemplated by law. He maintains that in
1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate,
telephones and extension telephones were already widely used instruments, probably the
most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on
the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made
of telephones in the enumeration of devices "commonly known as a dictaphone or
dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described."
The omission was not a mere oversight. Telephone party lines were intentionally deleted from
the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the
term "device" within the context of the aforementioned law because it is not a part or portion
of a complete set of a telephone apparatus. It is a separate device and distinct set of a
movable apparatus consisting of a wire and a set of telephone receiver not forming part of a
main telephone set which can be detached or removed and can be transferred away from
one place to another and to be plugged or attached to a main telephone line to get the
desired communication corning from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the
purpose of secretly overhearing, intercepting, or recording the communication. There must be
either a physical interruption through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph
or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be
considered as "tapping" the wire or cable of a telephone line. The telephone extension in this
case was not installed for that purpose. It just happened to be there for ordinary office use. It
is a rule in statutory construction that in order to determine the true intent of the legislature,
the particular clauses and phrases of the statute should not be taken as detached and
isolated expressions, but the whole and every part thereof must be considered in fixing the
meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc.,
66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the
terms of a contract may be, they shall not be understood to comprehend
things that are distinct and cases that are different from those upon which the
parties intended to agree.' Similarly, Article 1374 of the same Code provides
that 'the various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all of them
taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in
paragraph 5(c) and 7(d) should be then restricted only to those listed in the
Inventory and should not be construed as to comprehend all other obligations
of the decedent. The rule that 'particularization followed by a general
expression will ordinarily be restricted to the former' is based on the fact in
human experience that usually the minds of parties are addressed specially
to the particularization, and that the generalities, though broad enough to
comprehend other fields if they stood alone, are used in contemplation of that
upon which the minds of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco,
Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not
exclusive to that enumerated therein, should be construed to comprehend instruments of the
same or similar nature, that is, instruments the use of which would be tantamount to tapping
the main line of a telephone. It refers to instruments whose installation or presence cannot be
presumed by the party or parties being overheard because, by their very nature, they are not
of common usage and their purpose is precisely for tapping, intercepting or recording a
telephone conversation.
An extension telephone is an instrument which is very common especially now when the
extended unit does not have to be connected by wire to the main telephone but can be
moved from place ' to place within a radius of a kilometer or more. A person should safely
presume that the party he is calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in the case of a party line or a
telephone unit which shares its line with another. As was held in the case of Rathbun v.
United States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a particular telephone number may
cause the bell to ring in more than one ordinarily used instrument. Each party
to a telephone conversation takes the risk that the other party may have an
extension telephone and may allow another to overhear the conversation.
When such takes place there has been no violation of any privacy of which
the parties may complain. Consequently, one element of 605, interception,
has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if
instead of repeating the message he held out his hand-set so that another could hear out of it
and that there is no distinction between that sort of action and permitting an outsider to use
an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the
accused. Thus, in case of doubt as in the case at bar, on whether or not an extension
telephone is included in the phrase "device or arrangement", the penal statute must be
construed as not including an extension telephone. In the case of People v. Purisima, 86
SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the
tenderness of the law of the rights of individuals; the object is to establish a
certain rule by conformity to which mankind would be safe, and the discretion
of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S
Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind
531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited
in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of
forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook
on Statutory Construction, Rev. Ed. pp. 183-184).
officers or the defendant?" In these cases, as experienced
lawyers, we know that the Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12,
1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these
conditions, with an agent outside listening in, he could falsify
the testimony and there is no way of checking it. But if you
allow him to record or make a recording in any form of what
is happening, then the chances of falsifying the evidence is
not very much.

In the same case of Purisima, we also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and determine the intent and spirit of the
law. A perusal of the Senate Congressional Records will show that not only did our
lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or
arrangement" but of greater importance, they were more concerned with penalizing the act of
recording than the act of merely listening to a telephone conversation.
xxx xxx xxx
Senator Tañada. Another possible objection to that is
entrapment which is certainly objectionable. It is made
possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment
would be less possible with the amendment than without it,
because with the amendment the evidence of entrapment
would only consist of government testimony as against the
testimony of the defendant. With this amendment, they
would have the right, and the government officials and the
person in fact would have the right to tape record their
conversation.
Senator Tañada. In case of entrapment, it would be the
government.
Senator Tañada. Your Honor, this bill is not intended to
prevent the presentation of false testimony. If we could
devise a way by which we could prevent the presentation of
false testimony, it would be wonderful. But what this bill
intends to prohibit is the use of tape record and other
electronic devices to intercept private conversations which
later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p.
629).
It can be readily seen that our lawmakers intended to discourage, through punishment,
persons such as government authorities or representatives of organized groups from
installing devices in order to gather evidence for use in court or to intimidate, blackmail or
gain some unwarranted advantage over the telephone users. Consequently, the mere act of
listening, in order to be punishable must strictly be with the use of the enumerated devices in
RA No. 4200 or others of similar nature. We are of the view that an extension telephone is
not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate
Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby
ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-
Wiretapping Act.
SO ORDERED.

Senator Diokno. In the same way, under this provision,

neither party could record and, therefore, the court would be
limited to saying: "Okay, who is more credible, the police
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and
papers taken by her from private respondent's clinic without the latter's knowledge and
consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence
of her mother, a driver and private respondent's secretary, forcibly opened the drawers and
cabinet in her husband's clinic and took 157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries,
Dr. Martin's passport, and photographs. The documents and papers were seized for use in
evidence in a case for legal separation and for disqualification from the practice of medicine
which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin,
declaring him "the capital/exclusive owner of the properties described in paragraph 3 of
plaintiff's Complaint or those further described in the Motion to Return and Suppress" and
ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the
properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral
damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or submitting/admitting as evidence" the
documents and papers in question. On appeal, the Court of Appeals affirmed the decision of
the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner,
without his knowledge and consent. For that reason, the trial court declared the documents
and papers to be properties of private respondent, ordered petitioner to return them to private
respondent and enjoined her from using them in evidence. In appealing from the decision of
the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in
Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked
as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence
and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice
or gross misconduct, For this reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of dismissing private respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case,
charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or
gross misconduct because of the injunctive order of the trial court. In dismissing the
complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix;
Jr. which it found to be "impressed with merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he
maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig
Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court
prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6,
1983, however having appealed the said order to this Court on a petition
for certiorari, this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the enforceability of
this Court's order, respondent's request for petitioner to admit the genuineness and
authenticity of the subject annexes cannot be looked upon as malpractice. Notably,
petitioner Dr. Martin finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending
in the Regional Trial Court of Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin
himself under oath, Such verified admission constitutes an affidavit, and, therefore,
receivable in evidence against him. Petitioner became bound by his admission. For
Cecilia to avail herself of her husband's admission and use the same in her action for
legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not constitute a violation of the injunctive
order of the trial court. By no means does the decision in that case establish the admissibility
of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the
writ of preliminary injunction issued by the trial court, it was only because, at the time he used
the documents and papers, enforcement of the order of the trial court was temporarily
restrained by this Court. The TRO issued by this Court was eventually lifted as the petition
for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the
prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and correspondence [to be]
inviolable"3 is no less applicable simply because it is the wife (who thinks herself aggrieved by
her husband's infidelity) who is the party against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order
[from a] court or when public safety or order requires otherwise, as prescribed by law." 4 Any
violation of this provision renders the evidence obtained inadmissible "for any purpose in any
proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to
privacy as an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the consent of
the affected spouse while the marriage subsists.6Neither may be examined without the
consent of the other as to any communication received in confidence by one from the other
during the marriage, save for specified exceptions.7 But one thing is freedom of
communication; quite another is a compulsion for each one to share what one knows with the
other. And this has nothing to do with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.
 EN BANC

IN THE MATTER OF THE PETITION G.R. No. 160792

FOR HABEAS CORPUS OF The Case
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated
CAPT. MILO MAESTRECAMPO, PA 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The
LT. SG ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and Court of Appeals Decision and Resolution dismissed the petition for habeas corpus filed by
ROBERTO RAFAEL (ROEL) PULIDO,
Petitioners, lawyers Homobono Adaza and Roberto Rafael Pulido (petitioners) on behalf of their detained
Present:
Davide, Jr., C.J., clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo
Puno, Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio
Panganiban,
Quisumbing, Trillanes IV (PN) (detainees).
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio, Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the
Austria-Martinez,
Corona, Intelligence Service of the Armed Forces of the Philippines (ISAFP), who has custody of the
Carpio Morales, detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo Reyes and
Callejo, Sr.,
Azcuna, Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines
Tinga,
Chico-Nazario, and (AFP), Secretary of National Defense and National Security Adviser, because they have
Garcia, JJ.
command responsibility over Gen. Cabuay.
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA,
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ,
Respondents. August 25, 2005 Antecedent Facts

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior

officers, entered and took control of the Oakwood Premier Luxury Apartments (Oakwood), an
DECISION upscale apartment complex, located in the business district of Makati City. The soldiers

disarmed the security officers of Oakwood and planted explosive devices in its immediate
CARPIO, J.:

surroundings. The junior officers publicly renounced their support for the administration and
called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.
Court of Appeals; (c) refer the case to the Court of Appeals
for RAFFLE among the Justices thereof for hearing, further proceedings and
decision thereon, after which a REPORT shall be made to this Court within ten
(10) days from promulgation of the decision.[3]

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the

authorities after several negotiations with government emissaries. The soldiers later defused

the explosive devices they had earlier planted. The soldiers then returned to their barracks. Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing

respondents to make a return of the writ and to appear and produce the persons of the
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the

Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention detainees before the Court of Appeals on the scheduled date for hearing and further
Center. The transfer took place while military and civilian authorities were investigating the
proceedings.
soldiers involvement in the Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup detat with the On the same date, the detainees and their other co-accused filed with the Regional

Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003
Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.
Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined

and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted
The case was docketed as Criminal Case No. 03-2784. The trial court later issued the
their Return of the Writ and Answer to the petition and produced the detainees before the Court
Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV (Trillanes) and
Capt. Gerardo Gambala to the Commanding Officers of ISAFP. of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August

2003, the appellate court considered the petition submitted for decision.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take

On 17 September 2003, the Court of Appeals rendered its decision dismissing the
into custody the military personnel under their command who took part in the Oakwood incident
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
except the detained junior officers who were to remain under the custody of ISAFP. implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of

the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On
court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours
12 August 2003, the Court issued a Resolution, which resolved to:
and the detainees right to exercise for two hours a day.
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the
 The Ruling of the Court of Appeals The Issues

Petitioners raise the following issues for resolution:

The Court of Appeals found the petition bereft of merit. The appellate court pointed out
that the detainees are already charged of coup detat before the Regional Trial Court of A. THE COURT OF APPEALS ERRED IN
REVIEWING AND REVERSING A DECISION OF THE SUPREME
Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid COURT;

indictment, the legality of which the detainees and petitioners do not even question. B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
The Court of Appeals recognized that habeas corpus may also be the appropriate

remedy to assail the legality of detention if there is a deprivation of a constitutional right.

However, the appellate court held that the constitutional rights alleged to have been violated in C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF
THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS
this case do not directly affect the detainees liberty. The appellate court ruled that the regulation DETENTION.[5]
of the detainees right to confer with their counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes letter is
The Ruling of the Court
an abhorrent violation of his right to privacy of communication, this does not justify the issuance
of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper

subject of habeas corpus proceedings.

The petition lacks merit.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill

the promise he made in open court to uphold the visiting hours and the right of the detainees Petitioners claim that the Courts 12 August 2003 Order granted the petition and the

to exercise for two hours a day. The dispositive portion of the appellate courts decision reads: Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus

WHEREFORE, the foregoing considered, the instant petition is hereby argue that the Courts Order had already foreclosed any question on the propriety and merits
DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to
of their petition.
his commitment to uphold the constitutional rights of the detainees in
accordance with the Standing Operations Procedure No. 0263-04 regarding
visiting hours and the right of the detainees to exercise for two (2) hours a day. Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that

SO ORDERED.[4] the Court referred to the Court of Appeals the duty to inquire into the cause of the junior officers

detention. Had the Court ruled for the detainees release, the Court would not have referred the
hearing of the petition to the Court of Appeals. The Court would have forthwith released the Nonetheless, case law has expanded the writs application to circumstances where

detainees had the Court upheld petitioners cause. there is deprivation of a persons constitutional rights. The writ is available where a person

continues to be unlawfully denied of one or more of his constitutional freedoms, where there is

denial of due process, where the restraints are not merely involuntary but are also unnecessary,
In a habeas corpus petition, the order to present an individual before the court is a
and where a deprivation of freedom originally valid has later become arbitrary.[12]
preliminary step in the hearing of the petition.[6] The respondent must produce the person and

explain the cause of his detention.[7] However, this order is not a ruling on the propriety of the However, a mere allegation of a violation of ones constitutional right is not sufficient.

remedy or on the substantive matters covered by the remedy. Thus, the Courts order to the The courts will extend the scope of the writ only if any of the following circumstances is present:

Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person;

remedy of habeas corpus. (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed

For obvious reasons, the duty to hear the petition for habeas corpusnecessarily and such sentence is void as to the excess.[13] Whatever situation the petitioner invokes, the

includes the determination of the propriety of the remedy. If a court finds the alleged cause of threshold remains high. The violation of constitutional right must be sufficient to void the entire

the detention unlawful, then it should issue the writ and release the detainees. In the present proceedings.[14]

case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable.
Petitioners admit that they do not question the legality of the detention of the detainees.
After actively participating in the hearing before the Court of Appeals, petitioners are estopped
Neither do they dispute the lawful indictment of the detainees for criminal and military offenses.
from claiming that the appellate court had no jurisdiction to inquire into the merits of their
What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention
petition.
Center preventing petitioners as lawyers from seeing the detainees their clients any time of the

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper day or night. The regulation allegedly curtails the detainees right to counsel and violates

remedy to address the detainees complaint against the regulations and conditions in the ISAFP Republic Act No. 7438 (RA 7438).[15] Petitioners claim that the regulated visits made it difficult

Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of for them to prepare for the important hearings before the Senate and the Feliciano Commission.

detention of a person.[8] The purpose of the writ is to determine whether a person is being
Petitioners also point out that the officials of the ISAFP Detention Center violated the
illegally deprived of his liberty.[9] If the inquiry reveals that the detention is illegal, the court
detainees right to privacy of communication when the ISAFP officials opened and read the
orders the release of the person. If, however, the detention is proven lawful, then the habeas
personal letters of Trillanes and Capt. Milo Maestrecampo (Maestrecampo). Petitioners further
corpusproceedings terminate. The use of habeas corpus is thus very limited. It is not a writ of
claim that the ISAFP officials violated the detainees right against cruel and unusual punishment
error.[10] Neither can it substitute for an appeal.[11]
when the ISAFP officials prevented the detainees from having contact with their visitors.
Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
detention cells, limiting the already poor light and ventilation in the detainees cells.
regulations governing a detainees confinement must be reasonable measures x x x to secure

Pre-trial detainees do not forfeit their constitutional rights upon his safety and prevent his escape. Thus, the regulations must be reasonably connected to the
confinement.[16] However, the fact that the detainees are confined makes their rights more governments objective of securing the safety and preventing the escape of the detainee. The
limited than those of the public.[17] RA 7438, which specifies the rights of detainees and the
law grants the detention officer the authority to undertake such reasonable measures or
duties of detention officers, expressly recognizes the power of the detention officer to adopt
regulations.
and implement reasonable measures to secure the safety of the detainee and prevent his

escape. Section 4(b) of RA 7438 provides: Petitioners contend that there was an actual prohibition of the detainees right to
Section 4. Penalty Clause. a) x x x effective representation when petitioners visits were limited by the schedule of visiting hours.

b) Any person who obstructs, prevents or prohibits any lawyer, any member of Petitioners assert that the violation of the detainees rights entitle them to be released from
the immediate family of a person arrested, detained or under custodial
investigation, or any medical doctor or priest or religious minister or by his detention.
counsel, from visiting and conferring privately chosen by him or by any member
of his immediate family with him, or from examining and treating him, or from
ministering to his spiritual needs, at any hour of the day or, in urgent cases, Petitioners contention does not persuade us. The schedule of visiting hours does not
of the night shall suffer the penalty of imprisonment of not less than four (4)
years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).
render void the detainees indictment for criminal and military offenses to warrant the detainees
The provisions of the above Section notwithstanding, any security officer with
custodial responsibility over any detainee or prisoner may undertake such release from detention. The ISAFP officials did not deny, but merely regulated, the detainees
reasonable measures as may be necessary to secure his safety and
prevent his escape. (Emphasis supplied) right to counsel. The purpose of the regulation is not to render ineffective the right to counsel,

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a but to secure the safety and security of all detainees. American cases are instructive on the

detainee client at any hour of the day or, in urgent cases, of the night. However, the last standards to determine whether regulations on pre-trial confinement are permissible.

paragraph of the same Section 4(b) makes the express qualification that notwithstanding the
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations
provisions of Section 4(b), the detention officer has the power to undertake such reasonable must be reasonably related to maintaining security and must not be excessive in achieving that

measures as may be necessary to secure the safety of the detainee and prevent his escape. purpose. Courts will strike down a restriction that is arbitrary and purposeless. [19] However, Bell

v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions

in detention and prison facilities.[20] The U.S. Supreme Court commanded the courts to afford
administrators wide-ranging deference in implementing policies to maintain institutional
security.[21]
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard
to make regulations in detention centers allowable: such reasonable measures as may be
necessary to secure the detainees safety and prevent his escape. In the present case, the
visiting hours accorded to the lawyers of the detainees are reasonably connected to the
legitimate purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basisclearly shows that
there is no impairment of detainees right to counsel. Petitioners as counsels could visit their
clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours
are regular business hours, the same hours when lawyers normally entertain clients in their law
offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent
cases, petitioners could always seek permission from the ISAFP officials to confer with their
clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees right to counsel is not
undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano
Commission,[22] petitioners were given time to confer with the detainees, a fact that petitioners
themselves admit.[23] Thus, at no point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and
the boarding of the iron grills in their cells with plywood amount to unusual and excessive
punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a
detainee may not be punished prior to an adjudication of guilt in accordance with due process
of law, detention inevitably interferes with a detainees desire to live comfortably. [24] The fact
that the restrictions inherent in detention intrude into the detainees desire to live comfortably
does not convert those restrictions into punishment.[25] It is when the restrictions are arbitrary
and purposeless that courts will infer intent to punish. [26] Courts will also infer intent to punish
even if the restriction seems to be related rationally to the alternative purpose if the restriction
appears excessive in relation to that purpose.[27] Jail officials are thus not required to use the
least restrictive security measure.[28] They must only refrain from implementing a restriction that
appears excessive to the purpose it serves.[29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and
respondents concede, that the essential objective of pretrial confinement is to
insure the detainees presence at trial. While this interest undoubtedly justifies
the original decision to confine an individual in some manner, we do not
accept respondents argument that the Governments interest in ensuring a
detainees presence at trial is the only objective that may justify restraints and
conditions once the decision is lawfully made to confine a person. If the
government could confine or otherwise infringe the liberty of detainees only to
the extent necessary to ensure their presence at trial, house arrest would in
the end be the only constitutionally justified form of detention. The Government
also has legitimate interests that stem from its need to manage the facility
in which the individual is detained. These legitimate operational concerns may
require administrative measures that go beyond those that are, strictly
speaking, necessary to ensure that the detainee shows up at trial. For
example, the Government must be able to take steps to maintain security and
order at the institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institutions interest in
maintaining jail security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions that the
detainee would not have experienced had he been released while awaiting
trial. We need not here attempt to detail the precise extent of the legitimate
governmental interests that may justify conditions or restrictions of pretrial
detention. It is enough simply to recognize that in addition to ensuring the
detainees presence at trial, the effective management of the detention facility
once the individual is confined is a valid objective that may justify imposition of
conditions and restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment.[30]
 regulation like inBlock v. Rutherford. The limitation on the detainees physical contacts with
An action constitutes a punishment when (1) that action causes the inmate to suffer
visitors is a reasonable, non-punitive response to valid security concerns.
some harm or disability, and (2) the purpose of the action is to punish the

inmate.[31] Punishment also requires that the harm or disability be significantly greater than, or The boarding of the iron grills is for the furtherance of security within the ISAFP

be independent of, the inherent discomforts of confinement.[32] Detention Center. This measure intends to fortify the individual cells and to prevent the

detainees from passing on contraband and weapons from one cell to another. The boarded
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket
grills ensure security and prevent disorder and crime within the facility. The diminished
restriction on contact visits as this practice was reasonably related to maintaining security. The
illumination and ventilation are but discomforts inherent in the fact of detention, and do not
safety of innocent individuals will be jeopardized if they are exposed to detainees who while
constitute punishments on the detainees.
not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal
We accord respect to the finding of the Court of Appeals that the conditions in the
conviction.[34] Contact visits make it possible for the detainees to hold visitors and jail staff
ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt.
hostage to effect escapes.[35] Contact visits also leave the jail vulnerable to visitors smuggling
Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary
in weapons, drugs, and other contraband.[36] The restriction on contact visits was imposed even
cramped detention cells. The detainees are treated well and given regular meals. The Court of
on low-risk detainees as they could also potentially be enlisted to help obtain contraband and
Appeals noted that the cells are relatively clean and livable compared to the conditions now
weapons.[37] The security consideration in the imposition of blanket restriction on contact visits
prevailing in the city and provincial jails, which are congested with detainees. The Court of
was ruled to outweigh the sentiments of the detainees.[38]
Appeals found the assailed measures to be reasonable considering that the ISAFP Detention

Block v. Rutherford held that the prohibition of contact visits bore a rational Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples Army

connection to the legitimate goal of internal security.[39] This case reaffirmed the hands-off (NPA) member and two suspected Abu Sayyaf members are detained in the ISAFP Detention

doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise Center.

that courts should decline jurisdiction over prison matters in deference to administrative
We now pass upon petitioners argument that the officials of the ISAFP Detention
expertise.[40]
Center violated the detainees right to privacy when the ISAFP officials opened and read the

In the present case, we cannot infer punishment from the separation of the detainees letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing.

from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars Petitioners point out that the letters were not in a sealed envelope but simply folded because

separating the detainees from their visitors prevent direct physical contact but still allow the there were no envelopes in the ISAFP Detention Center. Petitioners contend that the

detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The

arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation Solicitor General does not deny that the ISAFP officials opened the letters.
 Courts in the U.S. have generally permitted prison officials to open and read all
incoming and outgoing mail of convicted prisoners to prevent the smuggling of contraband into
the prison facility and to avert coordinated escapes.[41] Even in the absence of statutes
specifically allowing prison authorities from opening and inspecting mail, such practice was
upheld based on the principle of civil deaths.[42]Inmates were deemed to have no right to
correspond confidentially with anyone. The only restriction placed upon prison authorities was
that the right of inspection should not be used to delay unreasonably the communications
between the inmate and his lawyer.[43]
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials
received respect.[44] The confidential correspondences could not be censored.[45] The
infringement of such privileged communication was held to be a violation of the inmates First
Amendment rights.[46] A prisoner has a right to consult with his attorney in absolute privacy,
which right is not abrogated by the legitimate interests of prison authorities in the administration
of the institution.[47]Moreover, the risk is small that attorneys will conspire in plots that threaten
prison security.[48]
American jurisprudence initially made a distinction between the privacy rights enjoyed
by convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited
right of privacy in communication. Censorship of pre-trial detainees mail addressed to public
officials, courts and counsel was held impermissible. While incoming mail may be inspected for
contraband and read in certain instances, outgoing mail of pre-trial detainees could not be
inspected or read at all.
In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the
U.S. Supreme Court held that prison officials could open in the presence of the inmates
incoming mail from attorneys to inmates. However, prison officials could not read such mail
from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming
mail from attorneys to inmates, has been considerably narrowed in the course of
this litigation. The prison regulation under challenge provided that (a)ll incoming
and outgoing mail will be read and inspected, and no exception was made for
attorney-prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to
inmates, but contend that they may open all letters from attorneys as long as it is
done in the presence of the prisoners. The narrow issue thus presented is whether
letters determined or found to be from attorneys may be opened by prison
authorities in the presence of the inmate or whether such mail must be delivered
unopened if normal detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was
from an attorney before opening it for inspection, a near impossible task of
administration would be imposed. We think it entirely appropriate that the State
require any such communications to be specially marked as originating from an
attorney, with his name and address being given, if they are to receive special
treatment. It would also certainly be permissible that prison authorities require that
a lawyer desiring to correspond with a prisoner, first identify himself and his client
to the prison officials, to assure that the letters marked privileged are actually from
members of the bar. As to the ability to open the mail in the presence of inmates,
this could in no way constitute censorship, since the mail would not be read.
Neither could it chill such communications, since the inmates presence insures
that prison officials will not read the mail. The possibility that contraband will be
enclosed in letters, even those from apparent attorneys, surely warrants prison
officials opening the letters. We disagree with the Court of Appeals that this should
only be done in appropriate circumstances. Since a flexible test, besides being
unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by
acceding to a rule whereby the inmate is present when mail from attorneys is
inspected, have done all, and perhaps even more, than the Constitution
requires.[51]
 In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no who are detained prior to trial may in many cases be individuals who are charged with serious

reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that crimes or who have prior records and may therefore pose a greater risk of escape than

prisoners necessarily lose many protections of the Constitution, thus: convicted inmates.[55] Valencia v. Wiggins[56] further held that it is impractical to draw a line

However, while persons imprisoned for crime enjoy many protections of the between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security.
Constitution, it is also clear that imprisonment carries with it the circumscription or
loss of many significant rights. These constraints on inmates, and in some cases
American cases recognize that the unmonitored use of pre-trial detainees non-
the complete withdrawal of certain rights, are justified by the considerations
underlying our penal system. The curtailment of certain rights is necessary, as a privileged mail poses a genuine threat to jail security. [57] Hence, when a detainee places his
practical matter, to accommodate a myriad of institutional needs and objectives
of prison facilities, chief among which is internal security. Of course, these letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to
restrictions or retractions also serve, incidentally, as reminders that, under our
system of justice, deterrence and retribution are factors in addition to correction. [53] possible inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation of

privacy for his incoming mail.[59] However, incoming mail from lawyers of inmates enjoys limited

protection such that prison officials can open and inspect the mail for contraband but could not
The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandonedPalmigiano read the contents without violating the inmates right to correspond with his lawyer. [60] The
v. Travisono and made no distinction as to the detainees limited right to privacy. State v.
inspection of privileged mail is limited to physical contraband and not to verbal contraband. [61]
Dunn noted the considerable jurisprudence in the United States holding that inmate mail may

be censored for the furtherance of a substantial government interest such as security or Thus, we do not agree with the Court of Appeals that the opening and reading of the

discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser detainees letters in the present case violated the detainees right to privacy of communication.

act of opening the mail and reading it is also permissible. We quote State v. Dunn: The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure

as it serves the same purpose as the opening of sealed letters for the inspection of contraband.
[A] right of privacy in traditional Fourth Amendment terms is fundamentally
incompatible with the close and continual surveillance of inmates and their
cells required to ensure institutional security and internal order. We are The letters alleged to have been read by the ISAFP authorities were not confidential
satisfied that society would insist that the prisoners expectation of privacy
always yield to what must be considered a paramount interest in institutional letters between the detainees and their lawyers. The petitioner who received the letters from
security. We believe that it is accepted by our society that [l]oss of freedom of
choice and privacy are inherent incidents of confinement. detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier

and not as their counsel when he received the letters for mailing. In the present case, since

the letters were not confidential communication between the detainees and their

lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters
The distinction between the limited privacy rights of a pre-trial detainee and a convicted are marked confidential communication between the detainees and their lawyers, the detention
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally officials should not read the letters but only open the envelopes for inspection in the presence
pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those of the detainees.
 largely on the security risks involved, we should defer to the regulations adopted by the military
That a law is required before an executive officer could intrude on a citizens privacy
custodian in the absence of patent arbitrariness.
rights[62] is a guarantee that is available only to the public at large but not to persons who are

detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA The ruling in this case, however, does not foreclose the right of detainees and

7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact convicted prisoners from petitioning the courts for the redress of grievances. Regulations and

of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of conditions in detention and prison facilities that violate the Constitutional rights of the detainees

privacy rights. and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford

injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane
In assessing the regulations imposed in detention and prison facilities that are alleged to
conditions. However, habeas corpus is not the proper mode to question conditions of
infringe on the constitutional rights of the detainees and convicted prisoners, U.S.
confinement.[67]The writ of habeas corpus will only lie if what is challenged is the fact or duration
courts balance the guarantees of the Constitution with the legitimate concerns of prison
of confinement.[68]
administrators.[63] The deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
scrutiny analysis would seriously hamper their ability to anticipate security
Appeals in CA-G.R. SP No. 78545.
problems and to adopt innovative solutions to the intractable problems of
prison administration.[64]
No pronouncement as to costs.

SO ORDERED.
The detainees in the present case are junior officers accused of leading 300 soldiers
in committing coup detat, a crime punishable with reclusion perpetua.[65]The junior officers are

not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover

of a civilian building in the heart of the financial district of the country. As members of the military

armed forces, the detainees are subject to the Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu

Sayyaf and the NPA. Thus, we must give the military custodian a wider range of deference in
implementing the regulations in the ISAFP Detention Center. The military custodian is in a

better position to know the security risks involved in detaining the junior officers, together with

the suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend

FIRST DIVISION
G.R. No. 152072 January 31, 2006
ROMEO G. ROXAS and SANTIAGO N. PASTOR, Petitioners,
vs.
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER,
ELIZABETH R. GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES,
TERESITA REYES, JOSE REYES and ANTONIO REYES, Respondents.
x----------------------------------x
G.R. No. 152104 January 31, 2006
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER,
ELIZABETH R. GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES,
TERESITA REYES, JOSE REYES and ANTONIO REYES, Petitioners,
vs.
THE NATIONAL HOUSING AUTHORITY, JOSE B. H. PEDROSA, ROMEO G. ROXAS and
SANTIAGO N. PASTOR, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us are two petitions for review on certiorari1 which were consolidated per
Resolution2 of this Court dated 27 November 2002. The petitioners in G.R. No. 152072, Attys.
Romeo G. Roxas and Santiago N. Pastor, seek the reversal and annulment of the
Decision3 and Resolution4 of the Court of Appeals dated 25 June 2001 and 06 February
2002, respectively. The petitioners in G.R. No. 152104, the Zuzuarreguis, on the other hand,
pray that the said Decision and Resolution of the Court of Appeals be modified. Said Decision
and Resolution reversed and set aside the decision of the Regional Trial Court (RTC), Branch
98, Quezon City, dated 03 January 1994.
THE ANTECEDENTS
The instant cases had their beginnings in 1977 when the National Housing Authority (NHA)
filed expropriation proceedings against the Zuzuarreguis, petitioners in G.R. No. 152104, for
parcels of land belonging to the latter situated in Antipolo, Rizal, with a total land area of
1,790,570.36 square meters, more or less. This case was lodged before the RTC, Branch
141, Municipality of Makati,5 docketed therein as Civil Case No. 26804 entitled, "National
Housing Authority v. Pilar Ibañez Vda. De Zuzuarregui, et al."
On 25 May 1983, said case was ordered archived6 by Branch 141.
About a month before the aforecited case was ordered archived, the Zuzuarreguis engaged
the legal services of Attys. Romeo G. Roxas and Santiago N. Pastor, to represent them in
Civil Case No. 26804. This was sealed by a Letter-Agreement dated 22 April 1983, which is
partly reproduced hereunder:
April 22, 1983
Mr. Antonio de Zuzuarregui, Jr.
Mrs. Pacita Javier (as heir to the late Jose de Zuzuarregui)
Mr. Antonio de Zuzuarregui ( as heir to the late Pilar Y. vda. De Zuzuarregui)
Dear Sir and Madam:
This is to confirm in writing our verbal negotiations for us to represent you in the
expropriation proceedings filed by the National Housing Authority against your
goodselves before the Court of First Instance of Rizal (now the Regional Trial
Court) and docketed as Civil Case No. 26804. Our representation shall also
include the areas taken over by the Ministry of Public Works and Highways which
now formed part of the Marcos Highway at Antipolo, Rizal.
The areas affected are the following:
xxxx
We shall endeavor to secure the just compensation with the National Housing
Authority and other governmental agencies at a price of ELEVEN PESOS (P11.00)
or more per square meter. Any lower amount shall not entitle us to any attorney’s
fees. At such price of P11.00 per square meter or more our contingent fee[s] is
THIRTY PERCENT (30%) of the just compensation.
The other terms and conditions of our proposal are:
xxxx
 5. You are willing to accept NHA 5-year bonds as part payment up to 75% of the
total compensation. In the event of your desire to discount the bonds, we shall
assist to have them discounted at 75% of its face value. JOINT SPECIAL POWER OF ATTORNEY

6. Our lawyer’s fees shall be in the proportion of the cash/bonds ratio of the just KNOW ALL MEN BY THESE PRESENTS:
compensation. Likewise our fees are subject to 10% withholding tax.
That We, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE
xxxx ZUZUARREGUI and PACITA JAVIER, all of legal age, …, do
hereby appoint, name and constitute ATTYS. ROMEO G.
Should the above proposal be acceptable to your goodselves, kindly signify your ROXAS and SANTIAGO PASTOR, to be our true and lawful
formal acceptance as (sic) the space hereunder provided. attorneys to act in our names and on our behalves to do and
execute all or any of the following acts and deeds subject to
Very truly yours, our approval:
(Sgd.) (Sgd.)
SANTIAGO N. PASTOR ROMEO G. ROXAS xxxx
Lawyer Lawyer
CONFORME: (2) To represent us in the negotiations for a
compromise with the National Housing Authority for
(Sgd.) (Sgd.)
our properties subject of the above case;
ANTONIO DE ZUZUARREGUI, JR. PACITA JAVIER
In my behalf and (3) To negotiate for and in our behalves for the
as heir to the late Pilar Y. vda. De as heir to the late Jose De settlement of the just compensation of our properties
Zuzuarregui Zuzuarregui7 payable in cash or in bonds;

A Motion to Set Case for Hearing,8 dated 14 February 1984, was filed by Attys. Roxas and
Pastor in Civil Case No. 26804, praying that the case be revived and be set for hearing by the
court at the earliest date available in its calendar.
The appropriate proceedings thereafter ensued. On 29 October 1984, a Partial Decision was
rendered by Branch 141 in Civil Case No. 26804 fixing the just compensation to be paid to
the Zuzuarreguis at P30.00 per square meter.
The NHA filed a Motion for Reconsideration9 dated 23 November 1984 praying that the
Partial Decision be reconsidered and set aside, and a new one rendered lowering the amount
of just compensation in accordance with applicable laws. Pending resolution thereof, a Joint
Special Power of Attorney was executed by Antonio De Zuzuarregui, Jr., Enrique De
Zuzuarregui and Pacita Javier, in favor of Attys. Roxas and Pastor, viz:
(4) To sign and prepare all papers relative to the
preparation of a Compromise Agreement or any
papers and communications which shall eventually
bear our signatures; and
(5) That this Special Power of Attorney is enforce (sic)
as long as ATTYS. ROMEO G. ROXAS AND
SANTIAGO PASTOR are our lawyers in Civil Case
No. 26804 before the Regional Trial Court, Makati,
Branch CXLI.
HEREBY GIVING AND GRANTING unto our said attorneys
full power and authority whatsoever requisite or necessary or
proper to be done in or about the premises, as fully to all
intents and purposes as we might or could lawfully do if
personally present, and hereby ratifying and confirming all that
 our said attorneys shall do or cause to be done under and by
virtue of these presents.
IN WITNESS WHEREOF, We have hereunto set our hands
this 26th day of August, 1985, in Makati, M. M., Philippines.
(Sgd.)
ANTONIO DE ZUZUARREGUI, JR.1avvph!l.ne+
(Sgd.)
ENRIQUE DE ZUZUARREGUI
(Sgd.)
PACITA JAVIER10
On 22 November 1985, a Special Power of Attorney was executed by Beatriz Zuzuarregui
vda. De Reyes in favor of Attys. Romeo G. Roxas, Santiago Pastor and Basilio H. Toquero,
quoted as follows:
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That I, BEATRIZ ZUZUARREGUI VDA. DE REYES, Filipino,
of legal age, widow, and a resident of E. Rodriguez Ave.,
Quezon City, Philippines do hereby appoint, name and
constitute ATTYS. ROMEO G. ROXAS, SANTIAGO PASTOR
and BASILIO H. TOQUERO, to be my true and lawful
attorneys … :
1. To represent me in the negotiation for a
Compromise with the National Housing Authority for
my properties subject to my approval in CIVIL CASE
No. 26804, entitled "National Housing Authority vs.
Pilar Ibañez de Zuzuarregui, et al., before the
Regional Trial Court, Makati, Branch CXLI;
2. To negotiate for and in my behalf for the settlement
of the just compensation of my properties payable in
cash or in bond, subject to my approval;
3. To sign and prepare all papers relative to the
preparation of a Compromise Agreement or any
papers and communications which shall eventually
bear my signature;
4. To accept for and in my behalf payments for my
properties after the Compromise Agreement is duly
approved by the Court, the actual receipts of which
payments shall be signed by me.
HEREBY GIVING AND GRANTING unto my said attorneys
full power and authority whatsoever requisite, necessary or
proper … to be done under and by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand this
22nd day of November 1985, in the City of Manila, Philippines.
(Sgd.)
BEATRIZ ZUZUARREGUI VDA. DE REYES11
On 10 December 1985, a Letter-Agreement was executed by and between Antonio
Zuzuarregui, Jr., Pacita Javier and Enrique De Zuzuarregui, on the one hand, and Attys.
Romeo G. Roxas and Santiago Pastor, on the other. The said Letter-Agreement reads:
December 10, 1985
Atty. Romeo G. Roxas
Atty. Santiago Pastor
Makati Executive Center
Salcedo Village, Makati
Dear Atty. Roxas & Atty. Pastor:
This will confirm an amendment to our agreement regarding your attorney’s fees as our
lawyers and counsels for the Zuzuarregui’s properties expropriated by National Housing
Authority covering ONE HUNDRED SEVENTY-NINE (179) HECTARES, more or less,
covered by TCT Nos. 138340, 85633 and 85634 and filed as Civil Case No. 26804.
We hereby confirm and agree that we are willing to accept as final and complete settlement
for our 179 hectares expropriated by NHA a price of SEVENTEEN PESOS (P17.00) per
square meter, or for a total of THIRTY MILLION FOUR HUNDRED THOUSAND PESOS
(P30.4 Million), all payable in NHA Bonds.
We also agree and confirm that for and in consideration of your services as our lawyers and
counsels in the said expropriation case, we commit and bind ourselves to pay to you, your
heirs or assignees-in-interest, as your contingent attorney’s fees any and all amount in
excess of the SEVENTEEN PESOS (P17.00) per square meter payable in NHA bonds as
mentioned above.
This Letter Agreement serves also as your authority to collect directly from NHA the amount
pertaining to you as your contingent attorney’s fees.
This Letter Agreement hereby amends and supersedes our previous agreement regarding
your attorney’s fees as our lawyers and counsels in the above-mentioned expropriation case.
Very truly yours,
(Sgd.) ANTONIO DE ZUZUARREGUI, JR.
In my behalf as heir to the late Pilar I. vda. de Zuzuarregui
(Sgd.)PACITA JAVIER
As heir to the late Jose De Zuzuarregui
(Sgd.)
ENRIQUE DE ZUZUARREGUI
CONFORME:
(Sgd.)ATTY. ROMEO G. ROXAS
(Sgd.)ATTY. SANTIAGO PASTOR12
Resolution No. 117413 dated 16 December 1985 was issued by the NHA stating that the
Zuzuarregui property would be acquired at a cost of P19.50 per square meter; that the
Zuzuarreguis would be paid in NHA Bonds, subject to the availability of funds; and that the
yield on the bonds to be paid to the Zuzuarreguis shall be based on the Central Bank rate at
the time of payment.
As a result of the aforesaid NHA Resolution, a Compromise Agreement was executed
between the Zuzuarreguis and the NHA in Civil Case No. 26804. The Compromise
Agreement, stipulated among other things, that the just compensation of the Zuzuarregui
properties would be at P19.50 per square meter payable in NHA Bonds. In a Decision dated
20 December 1985, the RTC, Branch 141, Makati, approved the Compromise Agreement
submitted by the parties.
On 27 December 1985, the NHA Legal Department, through Atty. Jose B. H. Pedrosa,
released to Atty. Romeo G. Roxas, in behalf of the Zuzuarreguis, the amount
of P20,000,000.00 in NHA Bearer Bonds as "partial payment for several parcels of land with
a total area of 1,790,570.36 square meters located in Antipolo, Rizal."14 On even date, Atty.
Romeo G. Roxas delivered NHA Bonds to Antonio De Zuzuarregui in the amount
of P15,000,000.00.15 On 04 February 1986, the amount of P34,500,000.00 in Bearer Bonds
was again released by the NHA to Atty. Romeo G. Roxas in behalf of the Zuzuarreguis. 16 On
14 February 1986, the Zuzuarreguis issued a receipt17 for receiving the amount
of P30,070,000.00. This receipt included the P15,000,000.00 given to them last 27 December
1985. Again on 17 February 1986, the Zuzuarreguis, through Beatriz Zuzuarregui vda. De
Reyes, issued another receipt for the amount of P450,000.00 in NHA bonds.18 The total
amount in NHA bonds released to Atty. Romeo G. Roxas in behalf of the Zuzuarreguis
amounted to P54,500,000.00. Out of this amount, the records show that the amount turned
over to the Zuzuarreguis by Atty. Roxas amounted to P30,520,000.00 in NHA bonds.
Computed at P19.50 per square meter, the 1,790,570.36 square meters property of the
Zuzuarreguis was expropriated at a total price of P34,916,122.00. The total amount released
by the NHA was P54,500,000.00. The difference of P19,583,878.00 is, undoubtedly, the yield
on the bonds.
On 25 August 1987, a letter19 was sent by the Zuzuarreguis’ new counsel, Jose F. Gonzalez,
to Attys. Roxas and Pastor, demanding that the latter deliver to the Zuzuarreguis the yield
corresponding to bonds paid by the NHA within a period of 10 days from receipt, under pain
of administrative, civil and/or criminal action.
Attys. Roxas and Pastor answered via a letter dated 21 September 1987 explaining their side
of the story. They stated therein, among other things, that the amount that they got seems
huge from the surface, but it just actually passed their hands, as it did not really go to them.20
On 29 September 1987, a letter21 was sent by the Zuzuarreguis through Antonio De
Zuzuarregui, Jr., to Attys. Romeo G. Roxas and Santiago N. Pastor, informing the latter that
their services as counsels of the Zuzuarreguis (except Betty) in the expropriation proceedings
filed by the NHA, docketed as Civil Case No. 26804, was being formally terminated.
Apparently unsatisfied with the explanation of Attys. Roxas and Pastor, the Zuzuarreguis filed
a civil action for Sum of Money and Damages on 14 November 1989 before the RTC,
Quezon City, Branch 98, docketed as Civil Case No. Q-89-4013, against the NHA, Jose B. H.
Pedrosa, Atty. Romeo G. Roxas and Atty. Santiago N. Pastor. The Zuzuarreguis demanded
that the yield on the NHA bonds be turned over to them.
After due hearing, a Decision22 in Civil Case No. Q-89-4013 was rendered on 03 January
1994, dismissing the Complaint. The dispositive portion reads:
WHEREFORE, in view of the foregoing consideration[s], judgment is hereby rendered
ordering the dismissal of the complaint against all the defendants; and, further ordering
plaintiffs, jointly and solidarily, to:
1. Pay each of the defendants Romeo G. Roxas, Santiago Pastor and Jose B. H.
Perdosa, the amount of P200,000.00, P200,000.00 and P100,000.00, respectively,
as moral damages;
2. Pay each of the defendants Roxas, Pastor and Pedrosa, the amount of
P50,000.00, P50,000.00, and P25,000.00, respectively as exemplary damages;
3. Pay attorney’s fees to defendants Roxas and Pastor in the amount of P20,000.00;
and
4. Pay the costs of this suit.
A Notice of Appeal23 dated 10 February 1994 was filed by the Zuzuarreguis. Subsequently,
on 26 April 1995, the Zuzuarreguis filed their appeal brief with the Court of Appeals. The case
was docketed as CA-G.R. CV No. 45732.
A Decision24 was eventually promulgated by the Fifteenth Division of the Court of Appeals on
25 June 2001, reversing and setting aside the ruling of Branch 98, viz:
Therefore, We find that the amount of P4,476,426.275 is, in the opinion of this Court,
commensurate to the services rendered by defendants-appellees. This amount has been
arrived at by giving to defendants-appellees P2.50 per square meter of the 1,790,570.51
square meter expropriated properties of herein plaintiffs-appellants.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision dated January 3, 1994 of the
Regional Trial Court, National Capital Judicial Region, Branch 98, Quezon City in Civil Case
No. 89-4013 entitled "Antonio Zuzuarregui, Jr., et al. versus National Housing Authority, et
al." for "Sum of Money and Damages," is hereby REVERSED and SET ASIDE. Defendants-
Appellees Roxas and Pastor are hereby ordered to return to plaintiffs-appellants the amount
of P12,596,696.425, the balance from the P17,073,122.70, received as yield from NHA
bonds after deducting the reasonable attorney’s fees in the amount of P4,476,426.275.25
Attys. Roxas and Pastor filed a Motion for Reconsideration26 on 25 July 2001. The
Zuzuarreguis also filed a Motion for Reconsideration27 on 30 July 2001, not having been
satisfied with the award, while the NHA and Pedrosa filed their Motions for
Reconsideration28 on 03 August 2001.
In a Resolution dated 06 February 2002, the Court of Appeals denied for lack of merit all the
Motions for Reconsideration.
On 05 March 2002, Attys. Roxas and Pastor filed a Petition for Review on
Certiorari29 assailing the Decision of the Court of Appeals, docketed as G.R. No. 152072.
Likewise, on 21 March 2002, the Zuzuarreguis filed their own Petition for Review on
Certiorari30 assailing the same Decision, docketed as G.R. No. 152104.1avvph!l.ne+
ASSIGNMENT OF ERRORS
Attys. Roxas and Pastor, petitioners in G.R. No. 152072, assign as errors the following:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN
HOLDING THAT THE LETTER-AGREEMENT DATED DECEMBER 10, 1985 CANNOT BE
ALLOWED TO STAND AS THE LAW BETWEEN THE PARTIES; and
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN
HOLDING THAT DEFENDANTS-APPELLANTS, HEREIN PETITIONERS, CONCEALED TO
THE PLAINTIFFS-APPELLEES, HEREIN RESPONDENTS, THE YIELD OF THE NHA
BONDS31
The Zuzuarreguis, petitioners in G.R. No. 152101, on the other hand, assign as errors the
following:
I
THE COURT OF APPEALS ERRED IN AWARDING TO PETITIONERS THE PRINCIPAL
AMOUNT OF ONLY P12,596,696.425 AND NOT P17,073,122.70 MAKING A DIFFERENCE
OF P4,476,426.28
II
THE RESPONDENTS SHOULD BE HELD LIABLE FOR INTEREST FROM THE DATE OF
THE FILING OF THE COMPLAINT UNTIL FULLY PAID
III
THE RESPONDENTS SHOULD BE HELD LIABE FOR MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY’S FEES
IV
THE RESPONDENTS NHA AND JOSE B.H. PEDROSA ARE JOINTLY AND SEVERALLY
LIABLE WITH RESPONDENTS ROXAS AND PASTOR32
ISSUE FOR RESOLUTION
Drawn from the above assignment of errors, it is patent that the principal issue that must be
addressed by this Court is:
WHETHER OR NOT THE LETTER-AGREEMENT DATED 10 DECEMBER 1985,
EXECUTED BY THE ZUZUARREGUIS, AND ATTYS. ROXAS AND PASTOR, FIXING THE
EXACT AMOUNT THAT MUST GO TO THE FORMER, SHOULD STAND AS LAW
BETWEEN THE PARTIES.
THE COURT’S RULING
Attys. Roxas and Pastor, petitioners in G.R. No. 152072, contend in the main that the
Zuzuarreguis are only entitled to the amount of P17.00 per square meter for the 1,790,570.36
square meters expropriated by the government. This was, according to them, embodied in
the Letter-Agreement dated 10 December 1985, wherein the Zuzuarreguis agreed to accept
the price of P17.00 per square meter. Besides, Attys. Roxas and Pastor contend that the
price of P17.00 was even way above the P11.00 that the Zuzuarreguis were willing to accept
for their properties under the Letter of Engagement executed by the parties earlier on 22 April
1983. Computed at P17.00 per square meter, they stress that the amount that should go to
the Zuzuarreguis for their 1,790,570.36 square meters property should be P30,439,696.10,
and that in fact the Zuzuarreguis have received P30,520,000.00. The Letter-Agreement dated
10 December 1985 should thus stand as law between the parties. Since this Letter-
Agreement, which was "as plain and simple as can be such that there is no need for any
further construction," already fixed the amount that would go to the Zuzuarreguis (P17.00 per
square meter), then it should be so.
Attys. Roxas and Pastor further assert that the receipts issued by the Zuzuarreguis dated 14
February 1986 and 17 February 1986 indicated that the amounts received by the latter were
in "full and final payment" for the subject properties.
The NHA, for its part, insists that there was no conspiracy between Attys. Roxas and Pastor
on the one hand, and the NHA and Atty. Pedrosa on the other, on the application of yields
from NHA bonds.33 The Zuzuarreguis, according to the NHA, "miserably failed to substantiate
and establish conspiracy" between them.
The Zuzuarreguis, for their part, though they were triumphant in the Court of Appeals, insist
that the amounts awarded them were not enough. According to them, the P12,596,696.425
awarded by the Court of Appeals was not correct. They should have been awarded the
amount of P17,073,122.70. Quoting the Zuzuarreguis:
Respondents Roxas and Pastor retained for themselves the amount of P3,980,000.00 which
represented the agreed attorney’s fees of Roxas and Pastor at P2.50 per square meter. The
amount of P20,000,000.00 representing the yield of all the bearer bonds was, in the words of
the Court of Appeals, "deliberately hidden" by respondents Roxas and Pastor from
petitioners. By mathematical computation, the P20,000,000.00 yield should be
proportionately divided at the ratio of P17.00 (petitioners’) and P2.50 (share of respondents
Roxas and Pastor). Following this ratio of division, of the P20,000,000.00 yield,
P17,073,122.70 should pertain to petitioners and the balance of P2,926,877.30 to
respondents Roxas and Pastor. Add this amount to the total of P3,980,000.00 at the agreed
rate of P2.50 per square meter, the total attorney’s fees of respondents Roxas and Pastor
should be P6,906,877.30, not bad, again in the words of the Court of Appeals, for handling "a
simple expropriation case which ended up in a compromise agreement." It was, therefore, in
error to still deduct the amount of P4,476,426.28 from petitioners share in the yield in the
amount of P17,073,122.70 leaving then only P12,596,696.42.
What was done, however, is that the product of 1,790,570.36 sq m. (area of the expropriated
land of petitioners) and P2.50 which is 4,476,426.28 was again deducted from the
P17,073,122.70 which is the corresponding share of the petitioners out of the total yield
of P20,000,000.00. If this were a criminal case, petitioners were being sentenced twice for
the same offense.34
The Zuzuarreguis further insist that legal interest on the amount of P17,073,122.70 be
imposed from the date of the filing of the complaint, including moral and exemplary damages,
and attorney’s fees.
We sustain the Court of Appeals, but with modification in the computation.
A contract is a meeting of the minds between two persons whereby one binds himself, with
respect to the other, to give something or to render some service.35 Contracts shall be
obligatory, in whatever form they may have been entered into, provided all the essential
requisites for their validity are present.36
Under Article 1318 of the Civil Code, there are three essential requisites which must concur
in order to give rise to a binding contract: (1) consent of the contracting parties; (2) object
certain which is the subject matter of the contract; and (3) cause of the obligation which is
established.37
All these requisites were present in the execution of the Letter-Agreement.
Consent is manifested by the meeting of the offer and the acceptance upon the thing and the
cause which are to constitute the contract.38 The Zuzuarreguis, in entering into the Letter-
Agreement, fully gave their consent thereto. In fact, it was them (the Zuzuarreguis) who sent
the said letter to Attys. Roxas and Pastor, for the purpose of confirming all the matters which
they had agreed upon previously. There is absolutely no evidence to show that anybody was
forced into entering into the Letter-Agreement. Verily, its existence, due execution and
contents were admitted by the Zuzuarreguis themselves.39
A contract for contingent fee, where sanctioned by law, should be reasonable under all the
circumstances of the case including the risk and uncertainty of the compensation, but should
always be subject to the supervision of a court, as to its reasonableness.
and Canon 20, Rule 20.01 of the Code of Professional Responsibility,46 viz:
CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.

The second requisite is the object certain. The objects in this case are twofold. One is the
Rule 20.01. – A lawyer shall be guided by the following factors in determining his fees:
money that will go to the Zuzuarreguis (P17.00 per square meter), and two, the money that
will go to Attys. Roxas and Pastor (any and all amount in excess of P17.00 per square
meter). There was certainty as to the amount that will go to the Zuzuarreguis, and there was (a) The time spent and the extent of the services rendered or required;
likewise certainty as to what amount will go to Attys. Roxas and Pastor.
(b) The novelty and difficulty of the question involved;
The cause is the legal service that was provided by Attys. Roxas and Pastor. In general,
cause is the why of the contract or the essential reason which moves the contracting parties (c) The importance of the subject matter;
to enter into the contract.40
(d) The skill demanded;
It is basic that a contract is the law between the parties.41 Obligations arising from contracts
have the force of law between the contracting parties and should be complied with in good (e) The probability of losing other employment as a result of acceptance of the
faith. Unless the stipulations in a contract are contrary to law, morals, good customs, public proffered case;
order or public policy, the same are binding as between the parties.42
(f) The customary charges for similar services and the schedule of fees of the IBP
In Licudan v. Court of Appeals,43 we did not allow the Contract for Professional Services chapter to which he belongs;
between the counsel and his client to stand as the law between them as the stipulation for the
lawyer’s compensation was unconscionable and unreasonable. We said: (g) The amount involved in the controversy and the benefits resulting to the client
from the service;
Although the Contract for Professional Services dated August 30, 1979 was apparently
voluntarily signed by the late Aurelio Licudan for himself and on behalf of his daughter, (h) The contingency or certainty of compensation;
petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both
manifested in open court that they gave their free and willing consent to the said contract, we
(i) The character of the employment, whether occasional or established; and
cannot allow the said contract to stand as the law between the parties involved considering
that the rule that in the presence of a contract for professional services duly executed by the
parties thereto, the same becomes the law between the said parties is not absolute but (j) The professional standing of the lawyer.
admits an exception – that the stipulations therein are not contrary to law, good morals, good
customs, public policy or public order.44 However, in cases where contingent fees are sanctioned by law, the same should be
reasonable under all the circumstances of the case, and should always be subject to the
Under the contract in question, Attys. Roxas and Pastor are to receive contingent fees 45 for supervision of a court, as to its reasonableness,47such that under Canon 20 of the Code of
their professional services. It is a deeply-rooted rule that contingent fees are not per se Professional Responsibility, a lawyer is tasked to charge only fair and reasonable fees.
prohibited by law. They are sanctioned by Canon 13 of the Canons of Professional Ethics,
viz: Indubitably entwined with the lawyer’s duty to charge only reasonable fees is the power of
this Court to reduce the amount of attorney’s fees if the same is excessive and
13. Contingent Fees. – unconscionable.48 Thus, Section 24, Rule 138 of the Rules of Court partly states:
SEC. 24. Compensation of attorneys; agreement as to fees. – An attorney shall be entitled to On the issue of moral and exemplary damages, we cannot award the same for there was no
have and recover from his client no more than a reasonable compensation for his services, direct showing of bad faith on the part of Attys. Roxas and Pastor, for as we said earlier,
with a view to the importance of the subject matter of the controversy, the extent of the contingency fees are not per se prohibited by law. It is only necessary that it be reduced
services rendered, and the professional standing of the attorney. x x x. A written contract for when excessive and unconscionable, which we have already done.
services shall control the amount to be paid therefore unless found by the court to be
unconscionable or unreasonable. We likewise cannot hold the NHA and Atty. Pedrosa jointly and severally liable to the
Zuzuarreguis for there is no evidence to show conspiracy between them.
Attorney’s fees are unconscionable if they affront one’s sense of justice, decency or
reasonableness.49 It becomes axiomatic therefore, that power to determine the WHEREFORE, in view of all the foregoing considerations, the Decision and Resolution of the
reasonableness or the, unconscionable character of attorney's fees stipulated by the parties Court of Appeals dated 25 June 2001 and 06 February 2002, respectively, are AFFIRMED
is a matter falling within the regulatory prerogative of the courts.50 but with the MODIFICATION that Attys. Romeo G. Roxas and Santiago N. Pastor are hereby
ordered to return to the Zuzuarreguis the amount of P17,073,224.84. No costs.
In the instant case, Attys. Roxas and Pastor received an amount which was equal to forty-
four percent (44%) of the just compensation paid (including the yield on the bonds) by the SO ORDERED.
NHA to the Zuzuarreguis, or an amount equivalent to P23,980,000.00 of the P54,500,000.00.
Considering that there was no full blown hearing in the expropriation case, ending as it did in
a Compromise Agreement, the 44% is, undeniably, unconscionable and excessive under the
circumstances. Its reduction is, therefore, in order. This is in accordance with our ruling in the
earlier case of Tanhueco v. De Dumo51, where we reduced the amount of attorney’s fees
from sixty percent (60%) to fifteen percent (15%), for being excessive and unreasonable.

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

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

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

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

The amount of P17,073,224.84 must therefore be returned by Attys. Roxas and Pastor to the
Zuzuarreguis. They can take this out from the yield in the amount of P19,583,878.00 which
they have appropriated for themselves.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial
Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company,
Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the
for commercial viewing and for Philippine and international release, the histolic peaceful
struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this
Project with local movie producer Lope V. Juban who suggested th they consult with the
appropriate government agencies and also with General Fidel V. Ramos and Senator Juan
Ponce Enrile, who had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie
Television Review and Classification Board as wel as the other government agencies
consulted. General Fidel Ramos also signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan
Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of
which is set out below:
The Four Day Revolution is a six hour mini-series about People Power—a
unique event in modern history that-made possible the Peaceful revolution in
the Philippines in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and
created [four] fictitious characters to trace the revolution from the death of
Senator Aquino, to the Feb revolution and the fleeing of Marcos from the
country.
These character stories have been woven through the real events to help our
huge international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major
network. Tony reflects the average American attitude to the Phihppinence —
once a colony, now the home of crucially important military bases. Although
Tony is aware of the corruption and of Marcos' megalomania, for him, there
appears to be no alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is
quickly caught up in the events as it becomes dear that the time has come
for a change. Through Angle and her relationship with one of the Reform
Army Movement Colonels (a fictitious character), we follow the developing
discontent in the armed forces. Their dislike for General Ver, their strong
loyalty to Defense Minister Enrile, and ultimately their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila
newspaper who despises the Marcos regime and is a supporter an promoter
of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a
secret member of the New People's Army, and Eva--a -P.R. girl, politically
moderate and very much in love with Tony. Ultimately, she must choose
between her love and the revolution.
Through the interviews and experiences of these central characters, we
show the complex nature of Filipino society, and thintertwining series of
events and characters that triggered these remarkable changes. Through
them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual
documentary footage filmed during the period which we hope will capture the
unique atmosphere and forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely
successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and
11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian
with a deep understanding of the Philippines, who has worked on the
research for this project for some 18 months. Together with Davi Wilhamgon
 they have developed a script we believe accurately depicts the complex
issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box
Office in American, the Australian Broadcast Corporation in Australia and
Zenith Productions in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that made
possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television
play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with
real events, and utilizing actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not
approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or
that of any member of his family in any cinema or television production, film or other medium
for advertising or commercial exploitation" and further advised petitioners that 'in the
production, airing, showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or any member of
his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile
was deleted from the movie script, and petitioners proceeded to film the projected motion
picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary
Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as
Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the
movie "The Four Day Revolution". The complaint alleged that petitioners' production of the
mini-series without private respondent's consent and over his objection, constitutes an
obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a
Temporary Restraining Order and set for hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-series fim would not involve the private life of
Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a
prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been
completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction
against the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering
defendants, and all persons and entities employed or under contract with
them, including actors, actresses and members of the production staff and
crew as well as all persons and entities acting on defendants' behalf, to
cease and desist from producing and filming the mini-series entitled 'The
Four Day Revolution" and from making any reference whatsoever to plaintiff
or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance
or similarity to, or is otherwise Identifiable with, plaintiff in the production and
any similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for
whatever damages defendants may suffer by reason of the injunction if the
Court should finally decide that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari
dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order,
which petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for
certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22
March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private
respondent was required to file a consolidated Answer. Further, in the same Resolution, the
Court granted a Temporary Restraining Order partially enjoining the implementation of the
respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued
therein, and allowing the petitioners to resume producing and filming those portions of the
projected mini-series which do not make any reference to private respondent or his family or
to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the
main a right of privacy.
I
The constitutional and legal issues raised by the present Petitions are sharply drawn.
Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their
freedom of speech and of expression protected under our Constitution. Private respondent,
upon the other hand, asserts a right of privacy and claims that the production and filming of
the projected mini-series would constitute an unlawful intrusion into his privacy which he is
entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would
once more stress that this freedom includes the freedom to film and produce motion pictures
and to exhibit such motion pictures in theaters or to diffuse them through television. In our
day and age, motion pictures are a univesally utilized vehicle of communication and medium
Of expression. Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and entertainment.
In Gonzales v. Katigbak, 3former Chief Justice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of
Ideas and the expression of the artistic impulse. Their effect on the
perception by our people of issues and public officials or public figures as
well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v.
Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ
of public opinion lessened by the fact that they are designed to entertain as
well as to inform' (Ibid, 501). There is no clear dividing line between what
involves knowledge and what affords pleasure. If such a distinction were
sustained, there is a diminution of the basic right to free expression. ...4
This freedom is available in our country both to locally-owned and to foreign-owned motion
picture companies. Furthermore the circumstance that the production of motion picture films
is a commercial activity expected to yield monetary profit, is not a disqualification for availing
of freedom of speech and of expression. In our community as in many other countries, media
facilities are owned either by the government or the private sector but the private sector-
owned media facilities commonly require to be sustained by being devoted in whole or in pailt
to revenue producing activities. Indeed, commercial media constitute the bulk of such
facilities available in our country and hence to exclude commercially owned and operated
media from the exerciseof constitutionally protected om of speech and of expression can only
result in the drastic contraction of such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated
sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory,
does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope
and content of this right in differing types of particular situations. The right of privacy or "the
right to be let alone," 6 like the right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded as permissible where that person is
a public figure and the information sought to be elicited from him or to be published about him
constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist
publication and dissemination of matters of public interest. 8 The interest sought to be
protected by the right of privacy is the right to be free from unwarranted publicity, from
the wrongful publicizing of the private affairs and activities of an individual which are outside
the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a
right to privacy in a context which included a claim to freedom of speech and of
expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and
family of the late Moises Padilla as licensors. This agreement gave the licensee the right to
produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the
Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November
1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal
Party then in power and his men were tried and convicted. 11 In the judgment of the lower
court enforcing the licensing agreement against the licensee who had produced the motion
picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice
Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is
null and void for lack of, or for having an illegal cause or consideration, while
it is true that petitioner bad pled the rights to the book entitled "The Moises
Padilla Story," that did not dispense with the need for prior consent and
authority from the deceased heirs to portray publicly episodes in said
deceased's life and in that of his mother and the member of his family. As
held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St
Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to
protect their feelings and to preventa violation of their own rights in the
character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right
over the life of Moises Padilla since the latter was a public figure, is neither
well taken. Being a public figure ipso facto does not automatically destroy in
toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized
representation of a person, no matter how public a he or she may be (Garner
v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at
bar, while it is true that petitioner exerted efforts to present a true-to-life Story
Of Moises Padilla, petitioner admits that he included a little romance in the
film because without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed
claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in
effect claimed, in the name of freedom of speech and expression, a right to produce a motion
picture biography at least partly "fictionalized" of Moises Padilla without the consent of and
without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing
Agreement infringes on the constitutional right of freedom of speech and of
the press, in that, as a citizen and as a newspaperman, he had the right to
express his thoughts in film on the public life of Moises Padilla without prior
restraint.The right freedom of expression, indeed, occupies a preferred
position in the "hierarchy of civil liberties" (Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191
[1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
 xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and the press, which includes such vehicles of the mass media as radio,
television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle
"requires a court to take conscious and detailed consideration of the interplay
of interests observable in given situation or type of situation" (Separation
Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted
by respondent and the right of freedom of expression invoked by petitioner.
taking into account the interplay of those interests, we hold that under the
particular circumstances presented, and considering the obligations assumed
in the Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of freedom
of expression are reached when expression touches upon matters of
essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be applied in
respect of the instant Petitions, the Court believes that a different conclusion must here be
reached: The production and filming by petitioners of the projected motion picture "The Four
Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion
upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and
direct restraint on the part of the respondent Judge upon the exercise of speech and of
expression by petitioners. The respondent Judge has restrained petitioners from filming and
producing the entire proposed motion picture. It is important to note that in Lagunzad, there
was no prior restrain of any kind imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla. Because of the speech and of expression,
a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint
doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person
claiming to exercise such constitutional freedoms. The respondent Judge should have stayed
his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a
complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days
later; for the projected motion picture was as yet uncompleted and hence not exhibited to any
audience. Neither private respondent nor the respondent trial Judge knew what the
completed film would precisely look like. There was, in other words, no "clear and present
danger" of any violation of any right to privacy that private respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of
government that took place at Epifanio de los Santos Avenue in February 1986, and the trian
of events which led up to that denouement. Clearly, such subject matter is one of public
interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject
thus relates to a highly critical stage in the history of this countryand as such, must be
regarded as having passed into the public domain and as an appropriate subject for speech
and expression and coverage by any form of mass media. The subject mater, as set out in
the synopsis provided by the petitioners and quoted above, does not relate to the individual
life and certainly not to the private life of private respondent Ponce Enrile. Unlike in
Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his
immediate family, what we have here is not a film biography, more or less fictionalized, of
private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it
focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer
to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the
change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that
would be entailed by the production and exhibition of "The Four Day Revolution" would,
therefore, be limited in character. The extent of that intrusion, as this Court understands the
synopsis of the proposed film, may be generally described as such intrusion as is reasonably
necessary to keep that film a truthful historical account. Private respondent does not claim
that petitioners threatened to depict in "The Four Day Revolution" any part of the private life
of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, private respondent was what Profs. Prosser and
Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments,
fame, or mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity. Obviously to
be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any other entertainment. The list
is, however, broader than this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary soldiers, an infant prodigy, and
no less a personage than the Grand Exalted Ruler of a lodge. It includes, in
short, anyone who has arrived at a position where public attention is focused
upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight
to privacy. Three reasons were given, more or less indiscrimately, in the
decisions" that they had sought publicity and consented to it, and so could
not complaint when they received it; that their personalities and their affairs
has already public, and could no longer be regarded as their own private
business; and that the press had a privilege, under the Constitution, to inform
the public about those who have become legitimate matters of public
 interest. On one or another of these grounds, and sometimes all, it was held
that there was no liability when they were given additional publicity, as to
matters legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest,
was held to arise out of the desire and the right of the public to know what is
going on in the world, and the freedom of the press and other agencies of
information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that
indefinable quality of information which arouses public attention.' To a very
great extent the press, with its experience or instinct as to what its readers
will want, has succeeded in making its own definination of news, as a glance
at any morning newspaper will sufficiently indicate. It includes homicide and
othe crimes, arrests and police raides, suicides, marriages and divorces,
accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one
supposed to have been murdered years ago, and undoubtedly many other
similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to
information or education, or even entertainment and amusement, by books,
articles, pictures, films and broadcasts concerning interesting phases of
human activity in general, as well as the reproduction of the public scene in
newsreels and travelogues. In determining where to draw the line, the courts
were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the
benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as a
principal actor in the culminating events of the change of government in February 1986.
Because his participation therein was major in character, a film reenactment of the peaceful
revolution that fails to make reference to the role played by private respondent would be
grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that
of an ordinary citizen. Private respondent has not retired into the seclusion of simple private
citizenship. he continues to be a "public figure." After a successful political campaign during
which his participation in the EDSA Revolution was directly or indirectly referred to in the
press, radio and television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional
freedom of speech and of expression and the right of privacy, may be marked out in terms of
a requirement that the proposed motion picture must be fairly truthful and historical in its
presentation of events. There must, in other words, be no knowing or reckless disregard of
truth in depicting the participation of private respondent in the EDSA Revolution. 16 There
must, further, be no presentation of the private life of the unwilling private respondent and
certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion
picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as
"matters of essentially private concern." 18 To the extent that "The Four Day Revolution"
limits itself in portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be carried out even without a license from
private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a
Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of
the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio
B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope
Juban and PMP Motion for Pictures Production" enjoining him and his production company
from further filimg any scene of the projected mini-series film. Petitioner alleged that
Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint
of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a
separate Manifestation dated 4 April 1988, brought to the attention of the Court the same
information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B.
Honasan was substantially identical to that filed by private respondent herein and stating that
in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with
whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in
"forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight
similarity" between private respondent's complaint and that on Honasan in the construction of
their legal basis of the right to privacy as a component of the cause of action is
understandable considering that court pleadings are public records; that private respondent's
cause of action for invasion of privacy is separate and distinct from that of Honasan's
although they arose from the same tortious act of petitioners' that the rule on permissive
joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in
point because the parties here and those in Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court to deal with the
question of whether or not the lawyers of private respondent Ponce Enrile have engaged in
"forum shopping." It is, however, important to dispose to the complaint filed by former Colonel
Honasan who, having refused to subject himself to the legal processes of the Republic and
having become once again in fugitive from justice, must be deemed to have forfeited any
right the might have had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March
1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE.
The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby
MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16
March 1988 and made PERMANENT, and

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

No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the
power of the incumbent President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991
calling for a national referendum on October 16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its
replacement, the powers of such replacement, the period of its existence, the length of the
period for tile exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by
declaring the provisions of presidential Decree No. 229 providing for the manner of voting
and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted
in the footnote below.2
On the same date of September 22, 1976, the President issued Presidential Decree No.
1033, stating the questions to be submitted to the people in the referendum-plebiscite on
October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the National Assembly evinces their desire to have such body
abolished and replaced thru a constitutional amendment, providing for a legislative body,
which will be submitted directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the referendum
shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa which shall not be more than 120, unless
otherwise provided by law, shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation, those who shall not be less
than eighteen years of age elected by their respective sectors, and those chosen by the
incumbent President from the members of the Cabinet. Regional representatives shall be
apportioned among the regions in accordance with the number of their respective inhabitants
and on the basis of a uniform and progressive ratio while the sectors shall be determined by
law. The number of representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have
the same functions, responsibilities, rights, privileges, and disqualifications as the interim
National Assembly and the regular National Assembly and the members thereof. However, it
shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over its
sessions until the Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to exercise all his powers even
after the interim Batasang Pambansa is organized and ready to discharge its functions and
likewise he shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested in the President and the Prime
Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions,
and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet,
and shall be subject only to such disqualifications as the President (Prime Minister) may
prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law
shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or
the regular National Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in order to meet the exigency,
issue the necessary decrees, orders or letters of instructions, which shall form part of the law
of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the will
of the people regarding any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed
that they have been ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on October
16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as
they propose amendments to the Constitution, as well as Presidential Decree No. 1031,
insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the
Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue;
the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of
the transition period, only the incumbent President has the authority to exercise constituent
power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed
as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or revision of the
Constitution during the transition period is expressly conferred on the interim National
Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976
by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L-
44714, to restrain the implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973;
the submission of the proposed amendments in such a short period of time for deliberation
renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people
via referendum; and allowing 15-.year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years
of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and
Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source
of a stature Presidential Decrees are of such nature-may be contested by one who will
sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential
Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation
of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos
to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them with that
personality to litigate the validity of the Decrees appropriating said funds. Moreover, as
regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7
For the present case, We deem it sound to exercise that discretion affirmatively so that the
authority upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying
outside the domain of judicial review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8This is especially true in cases where the
power of the Presidency to initiate the of normally exercised by the legislature, is seriously
doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the
constitution resides in the interim National Assembly in the period of transition (See. 15,
Transitory provisions). After that period, and the regular National Assembly in its active
session, the power to propose amendments becomes ipso facto the prerogative of the
regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal
course has not been followed. Rather than calling the National Assembly to constitute itself
into a constituent assembly the incumbent President undertook the proposal of amendments
and submitted the proposed amendments thru Presidential Decree 1033 to the people in a
Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure
for amendments, written in lambent words in the very Constitution sought to be amended,
raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033,
which commonly purport to have the force and effect of legislation are assailed as invalid,
thus the issue of the validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution
provides: "All cases involving the constitutionality of a treaty, executive agreement, or law
may shall be heard and decided by the Supreme Court en banc and no treaty, executive
agreement, or law may be declared unconstitutional without the concurrence of at least ten
Members. ..." The Supreme Court has the last word in the construction not only of treaties
and statutes, but also of the Constitution itself The amending, like all other powers organized
in the Constitution, is in form a delegated and hence a limited power, so that the Supreme
Court is vested with that authorities to determine whether that power has been discharged
within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act, that
matter is definitely justiciable or non-political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing amendments to the Constitution,
but his constitutional authority to perform such act or to assume the power of a constituent
assembly. Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the Constitution provides how
it may be amended, the judiciary as the interpreter of that Constitution, can declare whether
the procedure followed or the authority assumed was valid or not.10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability,
that the question of the President's authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people ultimately lie in the judgment
of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending process when they
ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people themselves of course
who exercise no power of judicial but by the Supreme Court in whom the people themselves
vested that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the
Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of Presidential Proclamation No.
1102. announcing the Ratification by the Filipino people of the constitution proposed by the
1971 Constitutional Convention," partakes of the nature of a political question, the affirmative
stand of' the Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the
aforementioned plebiscite cases, We rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was
not a proper subject of judicial inquiry because, they claimed, it partook of a political nature,
and We unanimously declared that the issue was a justiciable one. With Identical unanimity.
We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our
authority to determine the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971,
despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and expressly modified, in
Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs.
Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued:
"The reasons adduced in support thereof are, however, substantially the same as those given
in support on the political question theory advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this Court and found by it to be legally unsound
and constitutionally untenable. As a consequence. Our decisions in the aforementioned
habeas corpus cases partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The National Assembly may,
by a vote of two-thirds of all its Members, call a constitutional convention or,
by a majority vote of all its Members, submit the question of calling such a
convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall
be held not later than three months after the approval of such amendment or
revision.
In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions
reads:
SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e.,
period of normalcy and period of transition. In times of normally, the amending process may
be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths
of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all
the Members of the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority vote of all the
members of the National Assembly. In times of transition, amendments may be proposed by
a majority vote of all the Members of the National Assembly upon special call by the interim
Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is
vested with that prerogative of discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said:
"The Constitutional Convention intended to leave to the President the determination of the
time when he shall initially convene the interim National Assembly, consistent with the
prevailing conditions of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the
Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that
under the same, the incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate
Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by
Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the plebiscite
of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the
people voted against the convening of the interim National Assembly. In the referendum of
July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the referendum of
February 27, 1975, the proposed question of whether the interim National Assembly shall be
initially convened was eliminated, because some of the members of Congress and delegates
of the Constitutional Convention, who were deemed automatically members of the I interim
National Assembly, were against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not
legislating when engaged in the amending process.16 Rather, it is exercising a peculiar
power bestowed upon it by the fundamental charter itself. In the Philippines, that power is
provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the
business of the legislating body to legislate for the nation by virtue of constitutional
conferment amending of the Constitution is not legislative in character. In political science a
distinction is made between constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the
case, approval of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis
government today are more or less concentrated in the President. 20 According to Rossiter,
"(t)he concentration of government power in a democracy faced by an emergency is a
corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In
most free states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches executive,
legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch
should exercise any two or more types of power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of
tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an insurmountable
barrier to a decisive emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must work together in
unanimity of purpose and action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more necessary will be their
fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet
and presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more trustworthy
than presidential dictatorship. The power of the state in crisis must not only be concentrated
and expanded; it must also be freed from the normal system of constitutional and legal
limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale behind such
broad emergency powers of the Executive is the release of the government from "the
paralysis of constitutional restrains" so that the crisis may be ended and normal times
restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded
valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of
the Transitory Provisions, thus:23
The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue to exercise his powers
and prerogatives under the nineteen hundred and thirty-five Constitution and
the powers vested in the President and the Prime Minister under this
Constitution until the calls upon the interim National Assembly to elect the
interim President and the interim Prime Minister, who shall then exercise
their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the
land, and shall remain valid, binding, and effective even after lifting of martial
law or the ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that
the Constitutional Convention, while giving to the President the discretion when to call the
interim National Assembly to session, and knowing that it may not be convened soon, would
create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of time. The separation of executive
and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis
government. The steady increase in executive power is not too much a cause for as the
steady increase in the magnitude and complexity of the problems the President has been
called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as Commander-in-Chief to
the direction of the operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly shown that in meeting the same, indefinite power
should be attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that
Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the
exercise of that judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National Assembly upon special
call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to call the interim National Assembly. Would it
then be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution, which is
but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that
the President has converted his office into a constituent assembly of that nature normally
constituted by the legislature. Rather, with the interim National Assembly not convened and
only the Presidency and the Supreme Court in operation, the urges of absolute necessity
render it imperative upon the President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant voices of the people reigns
supreme. After all, constituent assemblies or constitutional conventions, like the President
now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January
1973 and February 1975, the people had already rejected the calling of the interim National
Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay
organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60
cities had informed the President that the prevailing sentiment of the people is for the
abolition of the interim National Assembly. Other issues concerned the lifting of martial law
and amendments to the Constitution .27 The national organizations of Sangguniang Bayan
presently proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President of its
present powers in a referendum to be held on October 16 .28 The Batasang Bayan (legislative
council) created under Presidential Decree 995 of September 10, 1976, composed of 19
cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap
(executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to
submit directly to the people in a plebiscite on October 16, the previously quoted proposed
amendments to the Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the
proposed amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent issuance of
Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed
amendments) to the people in the National Referendum-Plebiscite on October 16.
V that the voting populace are simultaneously asked to answer the referendum question and
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them .30 In its fourth meaning, Savigny would treat
people as "that particular organized assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means
that the constitutional legislator, namely the people, is sovereign 32 In consequence, the
people may thus write into the Constitution their convictions on any subject they choose in
the absence of express constitutional prohibition. 33 This is because, as Holmes said, the
Constitution "is an experiment, as all life is all experiment."34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a self-
limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their
sovereign power as constitutional legislator. The proposed amendments, as earlier
discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite expresses
but the option of the people themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a particular
body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want
martial law to be continued? - is a referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the Government to reach the larger mas of
the people so that their true pulse may be felt to guide the President in pursuing his program
for a New Order. For the succeeding question on the proposed amendments, only those of
voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the
votes of those 18 years old and above which will have valid bearing on the results. The fact
the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision
of two ballot boxes for every barangay center, one containing the ballots of voters fifteen
years of age and under eighteen, and another containing the ballots of voters eighteen years
of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained
in another ballot box. And, the results of the referendum-plebiscite shall be separately
prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is
merely consultative in character. It is simply a means of assessing public reaction to the
given issues submitted to the people foe their consideration, the calling of which is derived
from or within the totality of the executive power of the President.39 It is participated in by all
citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand, involves the constituent act of
those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of
age or over, and who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in
the observation of Justice Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on
certain grounds no total suppression of that liberty is aimed at. The for the referendum-
plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly
The President himself had announced that he would not countenance any suppression of
dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on
the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution, which is
already a settled matter.43 Even government employees have been held by the Civil Service
Commission free to participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for
free debates or discussions on the referendum-plebiscite issues. The questions are not new.
They are the issues of the day. The people have been living with them since the proclamation
of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of
martial law. That notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the
Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's suffrage amendment to the
Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski
was published in only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for
the bicameral Congress, the reelection of the President and Vice President, and the creation
of the Commission on Elections, 20 days of publication in three consecutive issues of the
Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the independence of the Republic
was publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific
date when the plebiscite shall be held, but simply states that it "shall be held not later than
three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the
United States Supreme court held that this matter of submission involves "an appraisal of a
great variety of relevant conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant cases, the President, may
fix the time within which the people may act. This is because proposal and ratification are not
treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second, it is only when there is
deemed to be a necessity therefor that amendments are to be proposed, the reasonable
implication being that when proposed, they are to be considered and disposed of presently,
and third, ratification is but the expression of the approbation of the people, hence, it must be
done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution
proposed today has relation to the sentiment and the felt needs of today, and that, if not
ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as
waived, and not again to be voted upon, unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose amendments to
the Constitution as well as set up the required machinery and prescribe the procedure for the
ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that there is concentration of powers in the
Executive during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of
the proposed amendments for ratification by the people. Associate Justices Barredo and
Makasiar expressed the hope, however that the period of time may be extended. Associate
Justices Fernando, Makasiar and Antonio are of the view that the question is political and
therefore beyond the competence and cognizance of this Court, Associate Justice Fernando
adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs.
COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that
prescinding from the President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or rejection under the standards
set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC
(41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion
Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his
separate opinion, Associate Justice Fernando concurs in the result. Associate Justices
Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed.
This decision is immediately executory.

SO ORDERED.
 Republic of the Philippines xxx xxx xxx
SUPREME COURT
Manila (f) To draw, paint, inscribe, post, display or publicly exhibit any election
propaganda in any place, whether public or private, mobile or stationary,
EN BANC except in the COMELEC common posted areas and/or billboards, at the
campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his residential
houses, if he has more than one:Provided, that such posters or election
G.R. No. 103956 March 31, 1992 propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)
BLO UMPAR ADIONG, petitioner,
vs. xxx xxx xxx
COMMISSION ON ELECTIONS, respondent.
The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus
Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

GUTIERREZ, JR., J.:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed

The specific issue in this petition is whether or not the Commission on Elections (COMELEC)
materials of a size not more than eight and one-half inches in width and
may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit
their location or publication to the authorized posting areas that it fixes. fourteen inches in length;

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its
powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646
and 7166 and other election laws.
Section 15(a) of the resolution provides:
Sec. 15. Lawful Election Propaganda. — The following are lawful election
propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters,
or other written or printed materials not more than eight and one-half (8-1/2)
inches in width and fourteen (14) inches in length. Provided, That decals and
stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda. —
and Section 11(a) of Republic Act No. 6646 which provides:
It is unlawful:
(b) Handwritten or printed letters urging voters to vote for or against any
particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an
area not exceeding two feet by three feet, except that, at the site and on the
occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three feet by eight feet in size,
shall be allowed: Provided, That said streamers may not be displayed except
one week before the date of the meeting or rally and that it shall be removed
within seventy-two hours after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and
hearing where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission's authorization shall be published in
two newspapers of general circulation throughout the nation for at least twice
within one week after the authorization has been granted. (Section 37, 1978
EC)
 Prohibited Forms of Election Propaganda. — In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any place, whether private, or
public, except in the common poster areas and/or billboards provided in the
immediately preceding section, at the candidate's own residence, or at the
campaign headquarters of the candidate or political party: Provided, That
such posters or election propaganda shall in no case exceed two (2) feet by
three (3) feet in area: Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and
not exceeding three (3) feet by eight (8) feet each may be displayed five (5)
days before the date of the meeting or rally, and shall be removed within
twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now
assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in
"mobile" places like cars and other moving vehicles. According to him such prohibition is
violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No.
6646. In addition, the petitioner believes that with the ban on radio, television and print
political advertisements, he, being a neophyte in the field of politics stands to suffer grave
and irreparable injury with this prohibition. The posting of decals and stickers on cars and
other moving vehicles would be his last medium to inform the electorate that he is a
senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of
February 22, 1992 (the date of the petition) he has not received any notice from any of the
Election Registrars in the entire country as to the location of the supposed "Comelec Poster
Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of decals and
stickers on "mobile" places whether public or private except in designated areas provided for
by the COMELEC itself is null and void on constitutional grounds.
First — the prohibition unduly infringes on the citizen's fundamental right of free speech
enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial
enough to warrant the kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech clause which we have
adopted as part and parcel of our own Bill of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important but we have accorded to
free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430
[1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix,
the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S.
319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other
provisions of the Bill of Rights and the right to free elections may be guaranteed if the
freedom to speak and to convince or persuade is denied and taken away.
We have adopted the principle that debate on public issues should be uninhibited, robust,
and wide open and that it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S.
254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique
Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many
restrictions will deny to people the robust, uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost
respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)
The determination of the limits of the Government's power to regulate the exercise by a
citizen of his basic freedoms in order to promote fundamental public interests or policy
objectives is always a difficult and delicate task. The so-called balancing of interests —
individual freedom on one hand and substantial public interests on the other — is made even
more difficult in election campaign cases because the Constitution also gives specific
authority to the Commission on Elections to supervise the conduct of free, honest, and
orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is
granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication
or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection
with the object of holding free, orderly, honest, peaceful and credible
elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent case of National
Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion
cases underscores how difficult it is to draw a dividing line between permissible regulation of
election campaign activities and indefensible repression committed in the name of free and
honest elections. In the National Press Club, case, the Court had occasion to reiterate the
preferred status of freedom of expression even as it validated COMELEC regulation of
campaigns through political advertisements. The gray area is rather wide and we have to go
on a case to case basis.
There is another problem involved. Considering that the period of legitimate campaign activity
is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly
restrictive regulations may prove unfair to affected parties and the electorate.
For persons who have to resort to judicial action to strike down requirements which they
deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial
process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act
instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or
ruling, time which is of the essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.
When faced with border line situations where freedom to speak by a candidate or party and
freedom to know on the part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local officials and COMELEC, should lean in
favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's
power to regulate are not antagonistic. There can be no free and honest elections if in the
efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on
Elections (supra) case but all of us were unanimous that regulation of election activity has its
limits. We examine the limits of regulation and not the limits of free speech. The carefully
worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election
campaign activity may not pass the test of validity if it is too general in its terms or not limited
in time and scope in its application, if it restricts one's expression of belief in a candidate or
one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the
regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned
objective.
Even as the Court sustained the regulation of political advertisements, with some rather
strong dissents, in National Press Club, we find the regulation in the present case of a
different category. The promotion of a substantial Government interest is not clearly shown.
A government regulation is sufficiently justified if it is within the constitutional
power of the Government, if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance
of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v.
Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])
The posting of decals and stickers in mobile places like cars and other moving vehicles does
not endanger any substantial government interest. There is no clear public interest
threatened by such activity so as to justify the curtailment of the cherished citizen's right of
free speech and expression. Under the clear and present danger rule not only must the
danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:
The case confronts us again with the duty our system places on the Court to
say where the individual's freedom ends and the State's power begins.
Choice on that border, now as always delicate, is perhaps more so where the
usual presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedom
secured by the first Amendment . . . That priority gives these liberties a
sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard
governs the choice . . .
For these reasons any attempt to restrict those liberties must be justified by
clear public interest, threatened not doubtfully or remotely, but by clear and
present danger. The rational connection between the remedy provided and
the evil to be curbed, which in other context might support legislation against
attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion
and persuasion, at appropriate time and place, must have clear support in
public danger, actual or impending. Only the greatest abuses, endangering
permanent interests, give occasion for permissible limitation. (Thomas V.
Collins, 323 US 516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much
that of the candidate or the political party. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a candidate but once the car owner agrees to
have it placed on his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the National Press Club case, the Court was
careful to rule out restrictions on reporting by newspapers or radio and television stations and
commentators or columnists as long as these are not correctly paid-for advertisements or
purchased opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person who pastes a
sticker or decal on his private property.
Second — the questioned prohibition premised on the statute and as couched in the
resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends the constitutional principle that a
governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
 In a series of decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental personal liberties when the
end can be more narrowly achieved. The breadth of legislative abridgment
must be viewed in the light of less drastic means for achieving the same
basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court
invalidated an ordinance prohibiting all distribution of literature at any time or
place in Griffin, Georgia, without a license, pointing out that so broad an
interference was unnecessary to accomplish legitimate municipal aims. In
Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court
dealt with ordinances of four different municipalities which either banned or
imposed prior restraints upon the distribution of handbills. In holding the
ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be
astute to examine the effect of the challenged legislation. Mere legislative
preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US
296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of society," but
pointed out that in each case "the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected freedom."
(310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]
The resolution prohibits the posting of decals and stickers not more than eight and one-half
(8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile
places whether public or private except in areas designated by the COMELEC. Verily, the
restriction as to where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this case is a privately-owned
vehicle. In consequence of this prohibition, another cardinal rule prescribed by the
Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no
person shall be deprived of his property without due process of law:
Property is more than the mere thing which a person owns, it includes the
right to acquire, use, and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution
protects these essential attributes of property. Holden v. Hardy, 169 U.S.
366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person's acquisitions without control
or diminution save by the law of the land. 1 Cooley's Bl. Com. 127.
(Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers on
cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle.
In such a case, the prohibition would not only deprive the owner who consents to such
posting of the decals and stickers the use of his property but more important, in the process,
it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to
receive it is so clearly vital to the preservation of a free society that, putting
aside reasonable police and health regulations of time and manner of
distribution, it must be fully preserved. The danger of distribution can so
easily be controlled by traditional legal methods leaving to each householder
the full right to decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden by the
constitution, the naked restriction of the dissemination of ideas." (Martin v.
City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is
joined by a "liberty" interest, the burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or
display of election propaganda in any place, whether public or private, except in the common
poster areas sanctioned by COMELEC. This means that a private person cannot post his
own crudely prepared personal poster on his own front door or on a post in his yard. While
the COMELEC will certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of
decals or stickers in the privacy of one's living room or bedroom. This is delegation running
riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293
U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is
delegation running riot. No such plentitude of power is susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article II,
Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution,
is not impaired by posting decals and stickers on cars and other private vehicles. Compared
to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal access to
opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress
shall give highest priority to the enactment of measures that protect and enhance the right of
all the people to human dignity, reduce social, economic, andpolitical inequalities, and
remove cultural inequities by equitably diffusing wealth and political power for the common
good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles,
pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence,
the preference of the citizen becomes crucial in this kind of election propaganda not the
financial resources of the candidate. Whether the candidate is rich and, therefore, can afford
to doleout more decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to freely express
his choice and exercise his right of free speech. The owner can even prepare his own decals
or stickers for posting on his personal property. To strike down this right and enjoin it is
impermissible encroachment of his liberties.
There are many candidates whose names alone evoke qualifications, platforms, programs
and ideologies which the voter may accept or reject. When a person attaches a sticker with
such a candidate's name on his car bumper, he is expressing more than the name; he is
espousing ideas. Our review of the validity of the challenged regulation includes its effects in
today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution
No. 2347 of the Commission on Elections providing that "decals and stickers may be posted
only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is
DECLARED NULL and VOID.
SO ORDERED.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or
private except in the authorized areas designated by the COMELEC becomes censorship
which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest
official or the lowest functionary, is a postulate of our system of government.
That is to manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guard lest the restrictions on its authority, either substantive
or formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon to maintain
inviolate what is decreed by the fundamental law. Even its power of judicial
review to pass upon the validity of the acts of the coordinate branches in the
course of adjudication is a logical. corollary of this basic principle that the
Constitution is paramount. It overrides any governmental measure that fails
to live up to its mandates. Thereby there is a recognition of its being the
supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal
interpretation of the freedom to speak and the right to know. It is not alone the widest
possible dissemination of information on platforms and programs which concern us. Nor are
we limiting ourselves to protecting the unfettered interchange of ideas to bring about political
change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name
half or even two-thirds of the candidates running for Senator. The public does not
know who are aspiring to be elected to public office.

EN BANC
G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media constitute
an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot
ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite
the contrary, exit polls — properly conducted and publicized — can be vital tools in
eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the incidental problems in the
conduct of exit polls, without transgressing in any manner the fundamental rights of our
people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998.
In the said Resolution, the poll body
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any
other groups, its agents or representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the
elections for national officials particularly for President and Vice President, results of which
shall be [broadcast] immediately."2 The electoral body believed that such project might
conflict with the official Comelec count, as well as the unofficial quick count of the National
Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized
Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner.
We directed the Comelec to cease and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit
polls were actually conducted and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the
issuance of a restraining order enjoining the petitioner or any [other group], its agents or
representatives from conducting exit polls during the . . . May 11 elections." 3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11,
1998 election has already been held and done with. Allegedly, there is no longer any actual
controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May
11, 1998 election, its implications on the people's fundamental freedom of expression
transcend the past election. The holding of periodic elections is a basic feature of our
democratic government. By its very nature, exit polling is tied up with elections. To set aside
the resolution of the issue now will only postpone a task that could well crop up again in
future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has
the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or
rules. It has the symbolic function of educating bench and bar on the extent of protection
given by constitutional guarantees."7 Since the fundamental freedoms of speech and of the
press are being invoked here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the dissemination of data derived
therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's
failure to exhaust available remedies before the issuing forum, specifically the filing of a
motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed
over to prevent a miscarriage of justice,8 when the issue involves the principle of social justice
or the protection of labor,9 when the decision or resolution sought to be set aside is a
nullity,10 or when the need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998,
only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy
thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity
to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for certiorari is
therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually
through the mass media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit polls had not
been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member
of the mass media, committed to report balanced election-related data, including "the
exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative
regions."
It argues that the holding of exit polls and the nationwide reporting their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant
to its constitutional and statutory powers to promote a clean, honest, orderly and credible
May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of
the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence
the voters," and that the surveys were designed "to condition the minds of people and cause
confusion as to who are the winners and the [losers] in the election," which in turn may result
in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents
of ballots," in violation of Section 2, Article V of the Constitution;12 and relevant provisions of
the Omnibus Election Code.13 It submits that the constitutionally protected freedoms invoked
by petitioner "are not immune to regulation by the State in the legitimate exercise of its police
power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
manipulated easily. He insists that these polls would sow confusion among the voters and
would undermine the official tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus
be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit
polls? In answering this question, we need to review quickly our jurisprudence on the
freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both political and legal,
illustrate that freedom of thought and speech is the indispensable condition of nearly every
other form of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated
that at the very least, free speech and a free press consist of the liberty to discuss publicly
and truthfully any matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the
truth, of securing participation by the people in social and political decision-making, and of
maintaining the balance between stability and change.17 It represents a profound commitment
to the principle that debates on public issues should be uninhibited, robust, and wide
open.18 It means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the existing climate of
opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell
Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the
thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances.20They are not immune to regulation by
the State in the exercise of its police power.21 While the liberty to think is absolute, the power
to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in
determining the validity of restrictions to such freedoms, as follows:
These are the "clear and present danger" rule and the "dangerous tendency" rule.
The first, as interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be "extremely serious and the degree of imminence
extremely high" before the utterance can be punished. The danger to be guarded
against is the "substantive evil" sought to be prevented. . . . 23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows:
if the words uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the language used
be reasonably calculated to incite persons to acts of force, violence, or unlawfulness.
It is sufficient if the natural tendency and probable effect of the utterance be to bring
about the substantive evil which the legislative body seeks to prevent. 24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in
its earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as
well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar
Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31In setting the
standard or test for the "clear and present danger" doctrine, the Court echoed the words of
Justice Holmes: "The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of such
substantive character that the state has a right to prevent. Unlike in the "dangerous tendency"
doctrine, the danger must not only be clear but also present. "Present" refers to the time
element; the danger must not only be probable but very likely to be inevitable.33The evil
sought to be avoided must be so substantive as to justify a clamp over one's mouth or a
restraint of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity.35 And it is respondent's burden to
overthrow such presumption. Any act that restrains speech should be greeted with furrowed
brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.37 Thus:
A government regulation is sufficiently justified if it is within the constitutional power of
the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot
be pursued by means that broadly stifle fundamental personal liberties, when the end can be
more narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld when what is sought
to be curtailed is the dissemination of information meant. to add meaning to the equally vital
right of suffrage.40 We cannot support any ruling or order "the effect of which would be to
nullify so vital a constitutional right as free speech."41 When faced with borderline situations in
which the freedom of a candidate or a party to speak or the freedom of the electorate to know
is invoked against actions allegedly made to assure clean and free elections, this Court shall
lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the
State's power to regulate should not be antagonistic. There can be no free and honest
elections if, in the efforts to maintain them, the freedom to speak and the right to know are
unduly curtailed.42
True, the government has a stake in protecting the fundamental right to vote by providing
voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot
and to preserve the sanctity and the integrity of the electoral process. However, in order to
justify a restriction of the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An
absolute prohibition would thus be unreasonably restrictive, because it effectively prevents
the use of exit poll data not only for election-day projections, but also for long-term
research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful
election. While admitting that "the conduct of an exit poll and the broadcast of the results
thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be
curtailed if the exercise thereof creates a clear and present danger to the community or it has
a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which further make[s] the exit poll
highly unreliable. The probability that the results of such exit poll may not be in harmony with
the official count made by the Comelec . . . is ever present. In other words, the exit poll has a
clear and present danger of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as
much as possible be representative or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to replace or be at par
with the official Comelec count. It consists merely of the opinion of the polling group as to
who the electorate in general has probably voted for, based on the limited data gathered from
polled individuals. Finally, not at stake here are the credibility and the integrity of the
elections, which are exercises that are separate and independent from the exit polls. The
holding and the reporting of the results of exit polls cannot undermine those of the elections,
since the former is only part of the latter. If at all, the outcome of one can only be indicative of
the other.
The Comelec's concern with the possible noncommunicative effect of exit polls — disorder
and confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the
assailed Comelec Resolution is too broad, since its application is without qualification as to
whether the polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.45 There is no showing, however, that exit polls
or the means to interview voters cause chaos in voting centers. Neither has any evidence
been presented proving that the presence of exit poll reporters near an election precinct
tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on
the voters' answer to the survey questions will forever remain unknown and unexplored.
Unless the ban is restrained, candidates, researchers, social scientists and the electorate in
general would be deprived of studies on the impact of current events and of election-day and
other factors on voters' choices.1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was unconstitutional
because such purpose was impermissible, and the statute was neither narrowly tailored to
advance a state interest nor the least restrictive alternative. Furthermore, the general interest
of the State in insulating voters from outside influences is insufficient to justify speech
regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason
that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is
regulating speech via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave
open any alternative channel of communication to gather the type of information obtained
through exit polling. On the other hand, there are other valid and reasonable ways and
means to achieve the Comelec end of avoiding or minimizing disorder and confusion that
may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be required to explain to voters that
the latter may refuse interviewed, and that the interview is not part of the official balloting
process. The pollsters may further be required to wear distinctive clothing that would show
they are not election officials.48 Additionally, they may be required to undertake an information
campaign on the nature of the exercise and the results to be obtained therefrom. These
measures, together with a general prohibition of disruptive behavior, could ensure a clean,
safe and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities
are randomly selected in each province; (2) residences to be polled in such communities are
also chosen at random; (3) only individuals who have already voted, as shown by the
indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort;
(5) the poll results are released to the public only on the day after the elections.49 These
precautions, together with the possible measures earlier stated, may be undertaken to abate
the Comelec's fear, without consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption
is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media
and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly
conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the
ballots cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so
as to be identified. Also proscribed is finding out the contents of the ballots cast by particular
voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly,
what is forbidden is the association of voters with their respective votes, for the purpose of
assuring that the votes have been cast in accordance with the instructions of a third party.
This result cannot, however, be achieved merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct
of exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by
the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419
issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No
costs.

SO ORDERED.
 Republic of the Philippines
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 maintaining the balance between stability and change.34As 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 excludedbroadcast 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.87Katigbak, 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.
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.

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.
 THIRD DIVISION
[G.R. No. 155282. January 17, 2005]
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,
vs. ABS-CBN BROADCASTING CORPORATION and LOREN
LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules
of Court, as amended, filed by petitioner Movie and Television Review and Classification Board
(MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren
Legarda, respondents, assailing the (a) Decision dated November 18, 1997,[1] and (b) Order
dated August 26, 2002[2] of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No.
Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired Prosti-tuition,
an episode of the television (TV) program The Inside Story produced and hosted by respondent
Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their
tuition fees. In the course of the program, student prostitutes, pimps, customers, and some
faculty members were interviewed. The Philippine Womens University (PWU) was named as
the school of some of the students involved and the facade of PWU Building at Taft Avenue,
Manila conspicuously served as the background of the episode.
The showing of The Inside Story caused uproar in the PWU community. Dr. Leticia P. de
Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association
filed letter-complaints[3] with petitioner MTRCB. Both complainants alleged that the episode
besmirched the name of the PWU and resulted in the harassment of some of its female
students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint
with the MTRCB Investigating Committee, alleging among others, that respondents (1) did not
submit The Inside Story to petitioner for its review and (2)exhibited the same without its
permission, thus, violating Section 7[4] of Presidential Decree (P.D.) No. 1986[5] and Section
3,[6] Chapter III and Section 7,[7] Chapter IV of the MTRCB Rules and Regulations.[8]
In their answer,[9] respondents explained that the The Inside Story is a public affairs
program, news documentary and socio-political editorial, the airing of which is protected by
the constitutional provision on freedom of expression and of the press. Accordingly,
petitioner has no power, authority and jurisdiction to impose any form of prior restraint upon
respondents.
On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB
Investigating Committee rendered a Decision, the decretal portion of which reads:
WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum
of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject
of this case for review and approval of the MTRCB.
Heretofore, all subsequent programs of the The Inside Story and all other programs of the
ABS-CBN Channel 2 of the same category shall be submitted to the Board of Review and
Approval before showing; otherwise the Board will act accordingly.[10]
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a
Decision dated March 12, 1993 affirming the above ruling of its Investigating
Committee.[11] Respondents filed a motion for reconsideration but was denied in a Resolution
dated April 14, 1993.[12]
Respondents then filed a special civil action for certiorari with the Regional Trial Court
(RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections
3(b),[13] 3(c),[14] 3(d),[15] 4,[16] 7,[17] and 11[18] of P. D. No. 1986 and Sections 3,[19] 7,[20] and
28[21] (a) of the MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the The Inside
Story from the coverage of the above cited provisions; and (3) annul and set aside the MTRCB
Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that
the above-cited provisions constitute prior restraint on respondents exercise of freedom of
expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited
provisions do not apply to the The Inside Story because it falls under the category of public
affairs program, news documentary, or socio-political editorials governed by standards similar
to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the
dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB
dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No.
1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program The
Inside Story and other similar programs, they being public affairs programs which can be
equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their
behalf.
SO ORDERED.
Petitioner filed a motion for reconsideration but was denied.[24]
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including public affairs programs, news documentaries, or socio-political editorials,
are subject to petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant
to this Courts ruling in Iglesia ni Cristo vs. Court of Appeals;[25]second, television programs are
more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot
apply to the former; third, petitioners power to review television programs under Section 3(b)
of P. D. No. 1986 does not amount to prior restraint; and fourth, Section 3(b) of P. D. No. 1986
does not violate respondents constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review
the The Inside Story prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986,
partly reproduced as follows:
SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and
duties:
xxxxxx
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 or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all
motion pictures, television programs and publicity materials, to the end and that no such
pictures, programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be imported, exported, produced, copied,
reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
x x x x x x.
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the
power to review the television program The Inside Story. The task is not Herculean because it
merely resurrects this Court En Bancs ruling in Iglesia ni Cristo vs. Court of Appeals.[26] There,
the Iglesia ni Cristo sought exception from petitioners review power contending that the
term television programs under Sec. 3 (b) does not include religious programs which are
protected under Section 5, Article III of the Constitution.[27] This Court, through Justice Reynato
Puno, categorically ruled that P.D. No. 1986 gives petitioner the power to screen, review and
examine all television programs, emphasizing the phrase all television programs, thus:
The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve, delete x x x
and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x
x. The law also directs the Board to apply contemporary Filipino cultural values as standard
to determine those which are objectionable for being immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence or of a wrong
or crime.
Settled is the rule in statutory construction that where the law does not make any
exception, courts may not except something therefrom, unless there is compelling reason
apparent in the law to justify it.[28] Ubi lex non distinguit nec distinguere debemos. Thus, when
the law says all television programs, the word all covers all television programs, whether
religious, public affairs, news documentary, etc.[29] The principle assumes that the legislative
body made no qualification in the use of general word or expression.[30]
It then follows that since The Inside Story is a television program, it is within the jurisdiction
of the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term television
programs on the ground that the The Inside Story is a public affairs program, news
documentary and socio-political editorial protected under Section 4,[31] Article III of the
Constitution. Albeit, respondents basis is not freedom of religion, as in Iglesia ni Cristo,[32] but
freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the
instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom
of religion has been accorded a preferred status by the framers of our fundamental laws, past
and present, designed to protect the broadest possible liberty of conscience, to allow each man
to believe as his conscience directs x x x. Yet despite the fact that freedom of religion has been
accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos religious
program from petitioners review power.
Respondents claim that the showing of The Inside Story is protected by the constitutional
provision on freedom of speech and of the press. However, there has been no declaration at
all by the framers of the Constitution that freedom of expression and of the press has
a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction
and review power of petitioner MTRCB, with more reason, there is no justification to exempt
therefrom The Inside Story which, according to respondents, is protected by the constitutional
provision on freedom of expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCBs power of review are those expressly mentioned in
Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and (2)newsreels. Thus:
SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to
exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television
within the Philippines any motion picture, television program or publicity material, including
trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by
the owner or his assignee and passed by the BOARD; or to print or cause to be printed on
any motion picture to be exhibited in any theater or public place or by television a label or
notice showing the same to have been officially passed by the BOARD when the same has
not been previously authorized, except motion pictures, television programs or publicity
material imprinted or exhibited by the Philippine Government and/or its departments
and agencies, and newsreels.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to
review The Inside Story. Clearly, we are not called upon to determine whether petitioner
violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be
passed abridging the freedom of speech, of oppression or the press. Petitioner did not
disapprove or ban the showing of the program. Neither did it cancel respondents permit.
Respondents were merely penalized for their failure to submit to petitioner The Inside Story for
its review and approval. Therefore, we need not resolve whether certain provisions of P. D. No.
1986 and the MTRCB Rules and Regulations specified by respondents contravene the
Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P.
D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are
unconstitutional. It is settled that no question involving the constitutionality or validity of a law
or governmental act may be heard and decided by the court unless there is compliance with
the legal requisites for judicial inquiry, namely: (1) that the question must be raised by the
proper party; (2) that there must be an actual case or controversy; (3)that the question must be
raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or
legal question must be necessary to the determination of the case itself.[38]
WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated
November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision
dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents.
SO ORDERED.

Still in a desperate attempt to be exempted, respondents contend that the The Inside
Story falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define newsreels. Websters dictionary defines newsreels as short
motion picture films portraying or dealing with current events. [33] A glance at actual samples of
newsreels shows that they are mostly reenactments of events that had already happened.
Some concrete examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series
(Kino-Pravda means literally film-truth, a term that was later translated literally into the
French cinema verite) and Frank Capras Why We Fight series.[34] Apparently, newsreels are
straight presentation of events. They are depiction of actualities. Correspondingly, the
MTRCB Rules and Regulations[35] implementing P. D. No. 1986 define newsreels as straight
news reporting, as distinguished from news analyses, commentaries and opinions. Talk
shows on a given issue are not considered newsreels.[36] Clearly, the The Inside
Story cannot be considered a newsreel. It is more of a public affairs program which is described
as a variety of news treatment; a cross between pure television news and news-related
commentaries, analysis and/or exchange of opinions. [37] Certainly, such kind of program is
within petitioners review power.

SECOND DIVISION
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation
publishes the Manila Standard, a newspaper of general circulation, which features news-
worthy items of information including election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters
as regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as
"Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins
– expression, and he press, such a measure is vitiated by a weighty presumption of
Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of
the elections both at the national and local levels and release to the media the results of such
survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the
other hand, states that it intends to publish election survey results up to the last day of the
elections on May 14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to
justify such restraint. They claim that SWS and other pollsters conducted and published the
results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days
before the election day without causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there is an immediate and
inevitable danger to tile voting process posed by election surveys. They point out that no
similar restriction is imposed on politicians from explaining their opinion or on newspapers or
broadcast media from writing and publishing articles concerning political issues up to the day
of the election. Consequently, they contend that there is no reason for ordinary voters to be
denied access to the results of election surveys, which are relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by law
bears a rational connection to the objective of the law, i.e., the prevention of the debasement
of the electoral process resulting from manipulated surveys, bandwagon effect, and absence
of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the
impairment of freedom of expression is minimal, the restriction being limited both in
duration, i.e., the last 15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results but only require
timeliness. Respondent claims that in National Press Club v. COMELEC,1 a total ban on
political advertisements, with candidates being merely allocated broadcast time during the so-
called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according
to respondent, it states that the prohibition in §5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press
prohibiting the publication of election survey results affecting candidates within the prescribed
periods of fifteen (15) days immediately preceding a national election seven (7) days before a
local election. Because of tile preferred status of tile constitutional rights of speech,
invalidity.2 Indeed, any system of prior restraints of expression comes to this Court bearing a
heavy Presumption against its constitutional validity. ...The Government thus carries a heavy
burden of showing justification for in enforcement of such restraint. "' 3 There, thus a reversal
of the normal presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a measure like
§5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the
grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity,
time, space, and the right to reply" as well as uniform and reasonable rates of charges for the
use of such media facilities "public information campaigns and forums among
candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the Purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may
result in some limitation of the rights of free speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v.
COMELEC,6 this test was originally formulated for the criminal law and only later appropriated
for free speech cases. Hence, while it may be useful for determining the validity of laws
dealing with inciting to sedition or incendiary speech, it may not be adequate for such
regulations as the one in question. For such a test is concerned with questions of the gravity
and imminence of the danger as basis for curtailing free speech, which is not the case of §5.4
and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and
balancing the circumstances to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the regulation of the free enjoyment of
the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-
minute pressure on voters, the creation of bandwagon effect to favor candidates,
misinformation, the junking" of weak and "losing" candidates by their parties, and the form of
election cheating called "dagdag-bawas" and invoking the State's power to supervise media
of information during the election period (pages 11-16), the dissenting opinion simply
concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, It may
be seen that its limitingimpact on the rights of free speech and of the press is not
unduly repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in duration; it applies
only during the period when the voters are presumably contemplating whom they
should elect and when they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh
the value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already
stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space and the
right of reply, including reasonable, equal rates therefor for public information campaigns and
forums among candidates. " Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows candidates to
advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the
publication of survey results would sanction the censorship of all speaking by candidates in
an election on the ground that the usual bombasts and hyperbolic claims made during the
campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves freedom of
speech, expression, and the press with little protection. For anyone who can bring a plausible
justification forward can easily show a rational connection between the statute and a
legitimate governmental purpose. In contrast, the balancing of interest undertaken by then
Justice Castro in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue,
was a strong one resulting in his conclusion that , §50-B of R.A. No. 4880, which limited the
period of election campaign and partisan political activity, was an unconstitutional abridgment
of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries -
78, according to the Solicitor General, while the dissent cites 28 - which similarly impose
restrictions on the publication of election surveys. At best this survey is inconclusive. It is note
worthy that in the United States no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United States is a mature democracy.
Neither are there laws imposing an embargo on survey results, even for a limited period, in
other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium,
Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of which are no older nor more mature than the
Philippines in political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of §5.4? The
United States Supreme Court, through Chief Justice Warren, held in United States
v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional
power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms
[of speech, expression and press] is no greater than is essential to the furtherance of
that interest.8
This is so far the most influential test for distinguishing content-based from content neutral
regulations and is said to have "become canonical in the review of such laws." 9 is noteworthy
that the O 'Brien test has been applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial governmental interest, it
should be invalidated if such governmental interest is "not unrelated to the Expression of free
expression." Moreover, even if the purpose is unrelated to the suppression of free speech,
the law should nevertheless be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of
expression to the asserted governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of election survey results
because of the possibility that such publication might undermine the integrity of the election,
§5.4 actually suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion takers. In effect, §5.4 shows a bias for a
particular subject matter, if not viewpoint, by referring personal opinion to statistical results.
The constitutional guarantee of freedom of expression means that "the government has no
power to restrict expression because of its message, its ideas, its subject matter, or its
content."11 The inhibition of speech should be upheld only if the expression falls within one of
the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or 'fighting' words - those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in
order and morality
Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v.
Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases…. No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be protected against
incitements to acts of violence and overthrow by force of orderly government…
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition
may be for a limited time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national election and
seven (7) days immediately before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be
valid in National Press Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the ban
imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional
provision,16 but it also provided an alternative so that, as this Court pointed out
in Osmeña, there was actually no ban but only a substitution of media advertisements by the
COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the
suppression of speech and the resulting restriction of free expression is only incidental, §5.4
nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not
greater than is necessary to further the governmental interest. As already stated, §5.4 aims at
the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking"
of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-
bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such aim can be more narrowly
pursued by punishing unlawful acts, rather than speech because of apprehension that such
speech creates the danger of such evils. Thus, under the Administrative Code of 1987, 17the
COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop
any unlawful, libelous, misleading or false election propaganda, after due notice and
hearing.
This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by
others. No principle of equality is involved. It is a free market to which each candidate brings
his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether
the Government can deal with this natural-enough tendency of some voters. Some voters
want to be identified with the "winners." Some are susceptible to the herd mentality. Can
these be legitimately prohibited by suppressing the publication of survey results, which are a
form of expression? It has been held that "[mere] legislative preferences or beliefs respecting
matters of public convenience may well support regulation directed at other personal
activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression
even though such suppression is only for a limited period, and (3) the governmental interest
sought to be promoted can be achieved by means other than suppression of freedom of
expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its
decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the Resolution does not
purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly
states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no
basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has
been fund appropriate for testing the constitutionality of various election laws, rules, and
regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16027 May 30, 1962
LUMEN POLICARPIO, plaintiff-appellant,
vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-
appellees.
Mario Bengzon for plaintiff-appellant.
Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.
CONCEPCION, J.:
Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint
and defendants' counterclaim, without special pronouncement as to costs. Originally certified
to the Court of Appeals, the record on appeal was subsequently forwarded to us in view of
the amount involved in the complaint (P300,000.00).
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as
moral damages, P60,000 as correctional and exemplary damages, and P20,000, as
attorney's fees, aside from the costs, by reason of the publication in the Saturday Mirror of
August 11, 1956, and in the Daily Mirror of August 13, 1956, of two (2) articles or news items
which are claimed to be per se defamatory, libelous and false, and to have exposed her to
ridicule, jeopardized her integrity, good name and business and official transactions, and
caused her grave embarrassment, untold and extreme moral, mental and physical anguish
and incalculable material, moral, professional and business damages. The defendants are
The Manila Times Publishing Co., Inc., as publisher of The Saturday Mirror and The Daily
Mirror, which are newspapers of general circulation in the Philippines, and Constante C.
Roldan, Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author
of the first article and the managing editor, the associate editor and the news editor,
respectively, of said newspapers.
After its motion to dismiss the complaint had been denied by the Court of First Instance of
Manila, in which the present action was initiated, the defendants filed a joint answer admitting
the formal allegations of the complaint, denying the other allegations thereof, alleging special
defenses and setting up a counterclaim for P10,000, as attorney's fees and expenses of
litigation. In due course, later on, said court rendered the aforementioned decision, upon the
ground that plaintiff had not proven that defendants had acted maliciously in publishing the
aforementioned articles, although portions thereof were inaccurate or false.
Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime
prior thereto, she was executive secretary of the local UNESCO National Commission. As
such officer, she had preferred charges against Herminia D. Reyes, one of her subordinates
in said Commission, and caused her to be separated from the service. Miss Reyes, in turn,
preferred counter-charges which were referred to Col. Crisanto V. Alba, a Special
Investigator in the Office of the President. Pending completion of the administrative
investigation, which began in June, 1956, Miss Reyes filed with the Office of the City Fiscal of
Manila, on August 8, 1956, a complaint against the plaintiff for alleged malversation of public
funds and another complaint for alleged estafa thru falsification of public documents, which
were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m. Meanwhile,
or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front page
of The Saturday Mirror:
WOMAN OFFICIAL SUED
PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague
By Constante C. Roldan
Lumen Policarpio, executive secretary of the Unesco national commission here, was charged
with malversation and estafa in complaints filed with the city fiscal's office by the Presidential
Complaints and Action Commission today.
The criminal action was initiated as a result of current administrative investigation against the
Unesco official being conducted by Col. Crisanto V. Alba, Malacañan technical assistant, on
charges filed by Herminia D. Reyes, a Unesco confidential assistant. The Unesco
commission functions under the Office of the President.
Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled
preliminary investigation of the charges on August 22 at 2 p.m. Colonel Alba, in turn,
indicated that the administrative phase of the inquiry will continue Monday and then resume
on August 21 at Malacañan Park. The Palace Investigator said there are other charges, but
would not specify these.
Alba said Miss Reyes had testified on circumstances supposedly substantiating the
malversation charge. Testimony had allegedly indicated that the accused had used Unesco
stencils for private and personal purposes. Specification reputedly said that Miss Policarpio
had taken stencils from the Unesco storeroom and used these for French lessons not at all
connected with Unesco work; for the preparation of contracts of sale of pianos in her
business establishment; for preparation of invitations sent to members of the League of
Women Voters of which she is one of the officers.
Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal,
Batangas, Federico Vergara and Pablo Armesto both of the Unesco.1äwphï1.ñët
Regarding the charge of estafa through falsification of public documents allegedly also
committed sometime in 1955, Miss Policarpio was accused of having collected expenses for
supposed trips. The accusation said the Unesco official had sought reimbursement of
expenses for a trip to Baler, Quezon, on Aug. 19, last year, representing expenses of her car
when in fact she supposedly rode in an army plane.
Testimony indicated that a newspaper woman who was a supposed co-passenger had even
written about the plane trip in her newspaper column. The same voucher also allegedly
collected expenses for going to a Unesco Bayambang (Pangasinan) project, although
records reputedly showed that she was absent in that conferences.
Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt.
Clemente Antonio and others, also of the PAF.
Miss Policarpio becomes the second high-ranking woman government official to face charges
involving financial disbursements in their office. The first was Sen. Pacita M. Gonzales who is
still under charge mis-spending funds of the Social Welfare Administration and the UNAC
while she had charge of these.
The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss
Policarpio on charges including conduct "unbecoming a lady", and as a result had not been
paid her salary. She appealed to Malacañan which dismissed her suit and later she sued
before Judge Rafael Amparo to compel payment of her salary. The court also rejected her
plea on the ground that she had not exhausted all administrative remedies, the Palace not
having made a clearcut decision on her case.
The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of
plaintiff and of Miss Reyes, taken during the administrative investigation being conducted by
Col. Alba — another news item, reading:
"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO
Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.
The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the
Unesco national commission here, opened in Malacañan before Col. Crisanto V. Alba.
The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the
Malacañan case before the Presidential Complaints and Action Commission, will be
conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property and of having
fraudulently sought reimbursement of supposed official expenses.
Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he
nor the PCAC had initiated the criminal action before the city fiscal's office. The complaint
before the fiscal was started by an information she naming Herminia D. Reyes as
complainant and citing other persons as witnesses. Fiscal Reyes set preliminary investigation
of these charges for Aug. 22.
Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955
Miss Policarpio allegedly used several sheets of government stencils for her private and
personal use, such as for French lessons, contracts of sale of pianos and for invitations of the
League of Women Voters of which she (Miss Policarpio) is an officer. The Unesco
commission here functions under the Office of the President.
The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for
investigation.
Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer
representing complainant Miss Reyes, petitioned for the suspension of Miss Policarpio,
executive secretary of the Unesco.
Alba did not act immediately on the petition. He said he was holding a hearing on the petition
on August 15.
During this morning's investigation three witness appeared. The first witness was Atty.
Antonio Lopez of the PCAC who brought with him 18 sheets of stencil which were allegedly
used by Miss Policarpio for her personal use. These sheets were admitted as temporary
exhibits.
The second witness was Federico Vergara of the Unesco who said that he received four of
the 18 sheets, but he could not identify which of the sheets he had received.
The third witness was Francisco Manalo who certified on the charge of oppression in office
against Miss Policarpio.
The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss
Policarpio for a trip to Quezon Province and to Pangasinan. On the first, Miss Reyes'
complaint alleged the Unesco official had asked for refund of expenses for use of her car
when, Miss Reyes claimed she had actually made the trip aboard an army plane.
Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which
she also sought allegedly refund of expenses.
The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio
and had later sued at the Palace and before the Court for payment of her salary.
The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given
prominence with a 6-column (about 11 inches) banner headline of one-inch types. Admittedly,
its sub-title — "PCAC RAPS L. POLICARPIO PIO ON FRAUD" — printed in bold one-
centimeter types, is not true. Similarly, the statement in the first paragraph of the article, to
the effect that plaintiff "was charged with malversation and estafa in complaints filed with the
city fiscal's office by the Presidential Complaint and Action Commission" — otherwise known
as PCAC — is untrue, the complaints for said offenses having been filed by Miss Reyes.
Neither is it true that said "criminal action was initiated as a result of current administrative,
investigation", as stated in the second paragraph of the same article.
Plaintiff maintains that the effect of these false statements was to give the general impression
that said investigation by Col. Alba had shown that plaintiff was guilty, or, at least, probably
guilty of the crimes aforementioned, and that, as a consequence, the PCAC had filed the
corresponding complaints with the city fiscal's office. She alleges, also, that although said
article indicates that the charges for malversation and for estafa through falsification against
her referred, respectively, to the use by her of Unesco stencils allegedly for private and
personal purposes, and to the collection of transportation expenses, it did not mention the
fact that the number of stencils involved in the charge was only 18 or 20, that the sum
allegedly misappropriated by her was only P54, and that the falsification imputed to her was
said to have been committed by claiming that certain expenses for which she had sought and
secured reimbursement were incurred in trips during the period from July 1, 1955 to
September 30, 1955, although the trips actually were made, according to Miss Reyes, from
July 8 to August 31, 1955. By omitting these details, plaintiff avers, the article of August 11,
1956, had the effect of conveying the idea that the offenses imputed to her were more
serious than they really were. Plaintiff, likewise, claims that there are other inaccuracies in the
news item of August 13, 1956, but, we do not deem it necessary to dwell upon the same for
the determination of this case.
Upon the other hand, defendants contend that, although the complaints in the city fiscal's
office were filed, not by the PCAC, but by Miss Reyes, this inaccuracy is insignificant and
immaterial to the case, for the fact is that said complaints were filed with said office. As
regards the number of sheets of stencil allegedly misused and the amount said to have been
misappropriated by plaintiff, as well as the nature of the falsification imputed to her,
defendants argue that these "details" do not affect the truthfulness of the article as a whole,
and that, in any event, the insignificant value of said sheets of stencil and the small amount
allegedly misappropriated, would have had, if set forth in said article, a greater derogatory
effect upon the plaintiff, aside from the circumstance that defendants had no means of
knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had
already taken the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as
witnesses for Miss Reyes. Hence, defendants could have ascertained the "details"
aforementioned, had they wanted to. Indeed, some of the defendants and/or their
representatives had made appropriate inquiries from Col. Alba before said date, and some
"details" — though not those adverted to above — appear in the article then published,
whereas the number of sheets of stencil allegedly misused was mentioned in the news item
of August 13, 1956.
Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement
depends partly upon the amount of the damage caused to the offended party (Articles 315 to
318, Revised Penal Code). Hence, the amount or value of the property embezzled is material
to said offense.
Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another
agency of the Government, like the PCAC, particularly after an investigation conducted by the
same, imparts the ideal that the probability of guilty on the part of the accused is greater than
when the complaints are filed by a private individual, specially when the latter is a former
subordinate of the alleged offender, who was responsible for the dismissal of the complainant
from her employment. It is only too apparent that the article published on August 11, 1956,
presented the plaintiff in a more unfavorable light than she actually was.
It goes without saying that newspapers must enjoy a certain degree of discretion in
determining the manner in which a given event should be presented to the public, and the
importance to be attached thereto, as a news item, and that its presentation in a sensational
manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative
or other official proceedings, which are not of confidential nature, because the public is
entitled to know the truth with respect to such proceedings, which, being official and non-
confidential, are open to public consumption. But, to enjoy immunity, a publication containing
derogatory information must be not only true, but, also, fair, and it must be made in good faith
and without any comments or remarks.
Defendants maintain that their alleged malice in publishing the news items in question had
not been established by the plaintiff. However, Article 354 of the Revised Penal Code,
provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of other functions.
In the case at bar, aside from containing information derogatory to the plaintiff, the article
published on August 11, 1956, presented her in a worse predicament than that in which she,
in fact, was. In other words, said article was not a fair and true report of the proceedings there
in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a
comment or remark, besides being false. Accordingly, the defamatory imputations contained
in said article are "presumed to be malicious".
Then too, how could defendants claim to have acted with good intentions or justifiable motive
in falsely stating that the complaints had been filed with the Office of the City Fiscal by the
PCAC as a result of the administrative investigation of Col. Alba? Either they knew the truth
about it or they did not know it. If they did, then the publication would be actually malicious. If
they did not or if they acted under a misapprehension of the facts, they were guilty of
negligence in making said statement, for the consequences of which they are liable solidarily
(Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the Philippines; 17 R.C.L. sec. 95, p.
349).

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

WHEREFORE, the decision appealed from is hereby reversed and another one shall be
entered sentencing the defendants herein to pay jointly and severally to the plaintiff the
aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees,
in addition to the costs. It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 126466 January 14, 1999
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression be stirs and presents
itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey
its ever shifting terrain, explore and furrow its heretofore uncharted moors and valleys and
finally redefine the metes and bounds of its controversial domain. This, prominently, is one
such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal
metamorphoses than his right to freely and openly express his views. Blackstone's pontifical
comment that "where blasphemous, immoral, treasonable, schismatical, seditious, or
scandalous libels are punished by English law ... the liberty of the press, properly understood,
is by no means infringed or violated," found kindred expression in the landmark opinion of
England's Star Chamber in the Libelis Famosis case in 1603. 1 That case established two
major propositions in the prosecution of defamatory remarks: first, that libel against a public
person is a greater offense than one directed against an ordinary man, and second, that it is
immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less
dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the
concept of criminal libel liability under the clear and present danger rule, to the other end of
the spectrum in defense of the constitutionally protected status of unpopular opinion in free
society.
Viewed in modern times and the current revolution in information and communication
technology, libel principles formulated at one time or another have waxed and waned through
the years in the constant ebb and flow of judicial review. At the very least, these principles
have lost much of their flavor, drowned and swamped as they have been by the ceaseless
cacophony and din of thought and discourse emanating from just about every source and
direction, aided no less by an increasingly powerful and irrepressible mass media. Public
discourse, laments Knight, has been devalued by its utter commonality; and we agree, for its
logical effect is to benumb thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to enjoy a good, honorable and reputable
name. This may explain the imperceptible demise of criminal prosecutions for libel and the
trend to rely instead on indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco
Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March
1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for
writing and publishing certain articles claimed to be derogatory and offensive to private
respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines
Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper.
At the time the complaint was filed, petitioner Borjal was its President while Soliven was (and
still is) Publisher and Chairman of its Editorial Board. Among the regular writers of The
Philippine Star is Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer,
businessman, business consultant and journalist by profession. In 1988 he served as a
technical adviser of Congressman Fabian Sison, then Chairman of the House of
Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988
undertaken by the House Sub-Committee on Industrial Policy, those who attended agreed to
organize the First National Conference on Land Transportation (FNCLT) to be participated in
by the private sector in the transport industry and government agencies concerned in order to
find ways and means to solve the transportation crisis. More importantly, the objective of the
FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy
for presentation to Congress. The conference which, according to private respondent, was
estimated to cost around P1,815,000.00 would be funded through solicitations from various
sponsors such as government agencies, private organizations, transport firms, and individual
delegates or participants.2
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive Director. As such, he wrote numerous
solicitation letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with the alleged anomalous
activities of an "organizer of a conference" without naming or identifying private respondent.
Neither did it refer to the FNCLT as the conference therein mentioned. Quoted hereunder are
excerpts from the articles of petitioner together with the dates they were published. 3
31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around
organizing "seminars and conferences" for a huge fee. This is a simple ploy
coated in jazzy letterheads and slick prose. The "hero" has the gall to solicit
fees from anybody with bucks to spare. Recently, in his usual straightforward
style, Transportation Secretary Rainerio "Ray" Reyes, asked that his name,
be stricken off from the letterheads the "hero" has been using to implement
one of his pet "seminars." Reyes said: "I would like to reiterate my request
that you delete my name." Note that Ray Reyes is an honest man who would
confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized
use of the names of President Aquino and Secretary Ray Reyes. The
conference program being circulated claims that President Aquino and
Reyes will be main speakers in the conference. Yet, the word is that Cory
and Reyes have not accepted the invitation to appear in this confab. Ray
Reyes even says that the conference should be unmasked as a
moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every
Tom, Dick and Harry and to almost all government agencies. And the
letterheads carried the names of Reyes and Periquet. Agrarian Reform
Secretary on leave Philip Juico received one, but he decided to find out front
Reyes himself what the project was all about. Ray Reyes, in effect, advised
Juico to put the fund solicitation letter in the waste basket. Now, if the 3,000
persons and agencies approached by the organizer shelled out 1,000 each,
that's easily P3 million to a project that seems so unsophisticated. But note
that one garment company gave P100,000, after which the Garments
Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment
license application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of
trash tucked inside his closet. The Jaywalker continues to receive information
about the man's dubious deals. His notoriety, in according to reliable
sources, has reached the Premier Guest House where his name is spoken
like dung.
xxx xxx xxx
The first information says that the "organizer" tried to mulct half a million
pesos from a garment producer and exporter who was being investigated for
violation of the rules of the Garments, Textile, Embroidery and Apparel
Board. The "organizer" told the garment exporter that the case could be fixed
for a sum of P500,000.00. The organizer got the shock of his life when the
exporter told him: "If I have that amount. I will hire the best lawyers, not you."
The organizer left in a huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker
more "dope" on the "organizer." It seems that he was not only indiscreet; he
even failed to cover his tracks. You will be hearing more of the "organizer's"
exploits from this corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been
spreading his wings too far. A congressional source has informed the
Jaywalker that the schemer once worked for a congressman from the North
as some sort of a consultant on economic affairs. The first thing the
"organizer" did was to initiate hearings and round-the-table discussions with
people from the business, export and — his favorite — the garments sector.
xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant"
had nothing but the good of these sectors in mind. It was only later that he
realized that the "consultant" was acting with a burst of energy "in aid of
extortion." The "consultant" was fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious
ways. He has tried to operate under a guise of a well-meaning, reformist. He
has intellectual pretensions — and sometimes he succeeds in getting his
thoughts in the inside pages of some newspapers, with the aid of some naive
newspaper people. He has been turning out a lot of funny-looking advice on
investments, export growth, and the like.
 xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban
crooks and influence-peddlers from entering the premises of his department.
But the Cabinet man might not get his wish. There is one "organizer" who,
even if physically banned, call still concoct ways of doing his thing. Without a
tinge of remorse, the "organizer" could fill up his letterheads with, names of
Cabinet members, congressmen, and reputable people from the private
sector to shore up his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance
was very poor and the few who participated in, the affair were mostly leaders
of jeepney drivers' groups. None of the government officials involved in
regulating public transportation was there. The big names in the industry also
did not participate. With such a poor attendance, one wonders why the
conference organizers went ahead with the affair and tried so hard to
convince 3,000 companies and individuals to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The
personalities who count in the field of transpiration refused to attend the affair
or withdrew their support after finding out the background of the organizer of
the conference. How could a conference on transportation succeed without
the participation of the big names in the industry and government policy-
makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that
he was the "organizer" alluded to in petitioner Borjal's columns.4 In a subsequent letter to The
Philippine Star, private respondent refuted the matters contained in petitioner Borjal's
columns and openly challenged him in this manner —
To test if Borjal has the guts to back up his holier than thou attitude, I am
prepared to relinquish this position in case it is found that I have
misappropriated even one peso of FNCLT money. On the other hand, if I can
prove that Borjal has used his column as a "hammer" to get clients for his PR
Firm, AA Borjal Associates, he should resign from the STAR and never again
write a column. Is it a deal?5
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a
form of leverage to obtain contracts for his public relations firm, AA Borjal Associates.6 In
turn, petitioner Borjal published a rejoinder to the challenge of private respondent not only to
protect his name and honor but also to refute the claim that he was using his column for
character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal
case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution
dated 7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for
insufficiency of evidence. The dismissal was sustained by the Department of Justice and later
by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for
damages based on libel subject of the instant case.8 In their answer, petitioners interposed
compulsory counterclaims for actual, moral and exemplary damages, plus attorney's fees and
costs. After due consideration, the trial court decided in favor of private respondent
Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent
P1,000,000.00 for actual and compensatory damages, in addition to P200,000.00 for moral
damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's fees, and to pay
the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and
P75,000.00 attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996,
the appellate court ruled inter alia that private respondent was sufficiently identifiable,
although not named, in the questioned articles; that private respondent was in fact defamed
by petitioner Borjal by describing him variously as a "self-proclaimed hero," "a conference
organizer associated with shady deals who has a lot of trash tucked inside his closet," "thick
face," and "a person with dubious ways;" that petitioner's claim of privilege communication
was unavailing since the privileged character of the articles was lost by their publication in a
newspaper of general circulation; that petitioner could have performed his officer as a
newspaperman without necessarily transgressing the rights of Wenceslao by calling the
attention of the government offices concerned to examine the authority by which Wenceslao
acted, warning the public against contributing to a conference that, according to his
perception, lacked the univocal indorsement of the responsible government officials, or
simply informing the public of the letters Wenceslao wrote and the favors he requested or
demanded; and, that when he imputed dishonesty, falsehood and misrepresentation,
shamelessness and intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin
but clear line that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate court's
decision which reduced the amount of damages awarded him by filing with this Court a
Petition for Extension of Time to File Petition and a Motion for Suspension of Time to File
Petition.9 However, in a Resolution dated 27 May 1996, the Second Division denied both
motions: the first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case
to the Second Division, there was no longer any case thereat with which to consolidate this
case since G.R. No. 124396 had already been disposed of by the Second Division almost six
(6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied
the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The
petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent
Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in
refusing to accord serious consideration to the findings of the Department of Justice and the
Office of the President that private respondent Wenceslao was not sufficiently identified in the
questioned articles, this notwithstanding that the degree of proof required in a preliminary
investigation is merely prima facie evidence which is significantly less than the
preponderance of evidence required in civil cases; (c) in ruling that the subject articles do not
constitute qualifiedly privileged communication; (d) in refusing to apply the "public official
doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles
lost their privileged character because of their publication in a newspaper of general
circulation; (f) in ruling that private respondent has a valid cause of action for libel against
petitioners although he failed to prove actual malice on their part, and that the prosecutors of
the City of Manila, the Department of Justice, and eventually, the Office of the President, had
already resolved that there was no sufficient evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily
liable with him. Thus, petitioners pray for the reversal of the appellate court's ruling, the
dismissal of the complaint against them for lack of merit, and the award of damages on their
counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the
victim be identifiable although it is not necessary that he be named. It is also not sufficient
that the offended party recognized himself as the person attacked or defamed, but it must be
shown that at least a third person could identify him as the object of the libelous
publication.10 Regrettably, these requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings
sufficiently identified Wenceslao as the "conference organizer." It cited the First National
Conference on Land Transportation, the letterheads used listing different telephone numbers,
the donation of P100,000.00 from Juliano Lim and the reference to the '"organizer of the
conference" — the very same appellation employed in all the column items — as having
sufficiently established the identity of private respondent Wenceslao for those who knew
about the FNCLT who were present at its inception, and who had pledged their assistance to
it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The
questioned articles written by Borjal do not identify private respondent Wenceslao as the
organizer of the conference. The first of the Jaywalkerarticles which appeared in the 31 May
1989 issue of The Philippine Star yielded nothing to indicate that private respondent was the
person referred to therein. Surely, as observed by petitioners, there were millions of "heroes"
of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of
seminars and conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal
wrote about the "so-called First National Conference on Land Transportation whose principal
organizers are not specified" (emphasis supplied). 11Neither did the FNCLT
letterheads12 disclose the identity of the conference organizer since these contained only an
enumeration of names where private respondent Francisco Wenceslao was described as
Executive Director and Spokesman and not as a conference organizer. 13 The printout 14 and
tentative program 15 of the conference were devoid of any indication of Wenceslao as
organizer. The printout which contained an article entitled "Who Organized the NCLT?" did
not even mention private respondent's name, while the tentative program only denominated
private respondent as "Vice Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and
that he was only a part of the organization, thus —
I would like to clarify for the record that I was only a part of the organization. I
was invited then because I was the head of the technical panel of the House
of Representatives Sub-Committee on Industrial Policy that took care of
congressional hearings.16
Significantly, private respondent himself entertained doubt that he was the person spoken of
in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao)
was the one referred to in the subject articles. 17 His letter to the editor published in the 4
June 1989 issue of The Philippine Star even showed private respondent Wenceslao's
uncertainty —
Although he used a subterfuge, I was almost certain that Art Borjal referred
to the First National Conference on Land Transportation (June 29-30) and
me in the second paragraph of his May 31 column . . . 18
Identification is grossly inadequate when even the alleged offended party is himself unsure
that he was the object of the verbal attack. It is well to note that the revelation of the identity
of the person alluded to came not from petitioner Borjal but from private respondent himself;
when he supplied the information through his 4 June 1989 letter to the editor. Had private
respondent not revealed that he was the "organizer" of the FNCLT referred to in the Borjal
articles, the public would have remained in blissful ignorance of his identity. It is therefore
clear that on the element of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private
respondent has been sufficiently identified as the subject of Borjal's disputed comments, we
now proceed to resolve the other issues and pass upon the pertinent findings of the courts a
quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of
whether the disputed articles constitute privileged communications as to exempt the author
from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles
are privileged in character under the provisions of Art. 354 of The Revised Penal Code which
state —
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or
remarks, of any judicial or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
Respondent court explained that the writings in question did not fall under any of the
exceptions described in the above-quoted article since these were neither "private
communications" nor "fair and true report . . . without any comments or remarks." But this is
incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged.
Absolutely privileged communications are those which are not actionable even if the author
has acted in bad faith. An example is found in Sec. 11, Art.VI, of the 1987 Constitution which
exempts a member of Congress from liability for any speech or debate in the Congress or in
any Committee thereof. Upon the other hand, qualifiedly privileged communications
containing defamatory imputations are not actionable unless found to have been made
without good intention justifiable motive. To this genre belong "private communications" and
"fair and true report without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of
The Revised Penal Code for, as correctly observed by the appellate court, they are neither
private communications nor fair and true report without any comments or remarks. However
this does not necessarily mean that they are not privileged. To be sure, the enumeration
under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. The rule on privileged
communications had its genesis not in the nation's penal code but in the Bill of Rights of the
Constitution guaranteeing freedom of speech and of the press. 19 As early as 1918, in United
States v. Cañete,20 this Court ruled that publications which are privileged for reasons of public
policy are protected by the constitutional guaranty of freedom of speech. This constitutional
right cannot be abolished by the mere failure of the legislature to give it express recognition in
the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held
in Elizalde v. Gutierrez21and reiterated in Santos v. Court of Appeals22 —
To be more specific, no culpability could be imputed to petitioners for the
alleged offending publication without doing violence to the concept of
privileged communications implicit in the freedom of the press. As was so
well put by Justice Malcolm in Bustos: "Public policy, the welfare of society,
and the orderly administration of government have demanded protection of
public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege."
The doctrine formulated in these two (2) cases resonates the rule that privileged
communications must, sui generis, be protective of public opinion. This closely adheres to the
democratic theory of free speech as essential to collective self-determination and eschews
the strictly libertarian view that it is protective solely of self-expression which, in the words of
Yale Sterling Professor Owen Fiss,23 makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that the restrictive
interpretation vested by the Court of Appeals on the penal provision exempting from liability
only private communications and fair and true report without comments or remarks defeats,
rather than promotes, the objective of the rule on privileged communications, sadly contriving
as it does, to suppress the healthy effloresence of public debate and opinion as shining
linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. The doctrine of fair comment means that while
in general every discreditable imputation publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against a public person
in his public capacity, it is not necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must either be a false allegation of fact or
a comment based on a false supposition. If the comment is an expression of opinion, based
on established facts, then it is immaterial that the opinion happens to be mistaken, as long as
it might reasonably be inferred from the facts.21
There is no denying that the questioned articles dealt with matters of public interest. In his
testimony, private respondent spelled out the objectives of the conference thus —
. . . The principal conference objective is to come up with a draft of an
Omnibus Bill that will embody a long term land transportation policy for
presentation to Congress in its next regular session in July. Since last
January, the National Conference on Land Transportation (NCLT), the
conference secretariat, has been enlisting support from all sectors to ensure
the success of the project.25
Private respondent likewise testified that the FNCLT was raising funds through solicitation
from the public -
Q: Now, in this first letter, you have attached a budget and it
says here that in this seminar of the First National
Conference on Land Transportation, you will need around
One million eight hundred fifteen thousand pesos, is that
right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund
of your seminar?
A: Well, from sponsors such as government agencies and
private sectors or organizations as well as individual
transport firms and from individual delegates/participants.26
The declared objective of the conference, the composition of its members and participants,
and the manner by which it was intended to be funded no doubt lend to its activities as being
genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent
and reshape the transportation laws of the country and seeking to source its funds for the
project from the public at large cannot dissociate itself from the public character of its
mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public
of the legitimacy of the purpose of the activity and of the qualifications and integrity of the
personalities behind it.
This in effect is the strong message in New York Times v. Sullivan27 which the appellate court
failed to consider or, for that matter, to heed. It insisted that private respondent was not,
properly speaking, a "public official" nor a "public figure," which is why the defamatory
imputations against him had nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the
height of the bloody rioting in the American South over racial segregation. The then City
Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York Times for publishing a
paid political advertisement espousing racial equality and describing police atrocities
committed against students inside a college campus. As commissioner having charge over
police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the
outrage; consequently, he sued New York Times on the basis of what he believed were
libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against
Sullivan holding that honest criticisms on the conduct of public officials and public figures are
insulated from libel judgments. The guarantees of freedom of speech and press prohibit a
public official or public figure from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with actual malice, i.e.,
with knowledge that it was false or with reckless disregard of whether it was false or not.
The raison d' être for the New York Times doctrine was that to require critics of official
conduct to guarantee the truth of all their factual assertions on pain of libel judgments would
lead to self-censorship, since would be critics would be deterred from, voicing out their
criticisms even if such were believed to be true, or were in fact true, because of doubt
whether it could be proved or because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview of the
New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production
Pty., Ltd. v. Capulong29 as —
. . . . a person who, by his accomplishments, fame, mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in
his doings, his affairs and his character, has become a "public personage."
He is, in other words, a celebrity. Obviously to be included in this category
are those who have achieved some degree of reputation by appearing before
the public, as in the case of an actor, a professional baseball player, a
pugilist, or any other entertainer. The list is, however, broader than this. It
includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a personage than the
Great Exalted Ruler of the lodge. It includes, in short, anyone who has
arrived at a position where the public attention is focused upon him as a
person.
The FNCLT was air undertaking infused with public interest. It was promoted as a joint
project of the government and the private sector, and organized by top government officials
and prominent businessmen. For this reason, it attracted media mileage and drew public
attention not only to the conference itself but to the personalities behind as well. As its
Executive Director and spokesman, private respondent consequently assumed the status of a
public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he
occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that
he could not validly be the subject of a public comment even if he was not a public official or
at least a public figure, for he could be, as long as he was involved in a public issue. If a
matter is a subject of public or general interest, it cannot suddenly became less so merely
because a private individual is involved or because in some sense the individual did not
voluntarily choose to become involved. The public's primary interest is in the event; the public
focus is on the conduct of the participant and the content, effect and significance of the
conduct, not the participant's prior anonymity or notoriety.30
There is no denying that the questioned articles dealt with matters of public interest. A
reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all
these necessarily bore upon the latter's official conduct and his moral and mental fitness as
Executive Director of the FNCLT. The nature and functions of his position which included
solicitation of funds, dissemination of information about the FNCLT in order to generate
interest in the conference, and the management and coordination of the various activities of
the conference demanded from him utmost honesty, integrity and competence. These are
matters about which the public has the right to be informed, taking into account the very
public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing
the "organizer of the conference." One is tempted to wonder if it was by some mischievous
gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this
jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the
privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice
Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited,
robust and wide open, and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on the government and public officials. 31
The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is
immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words,
the privileged character of a communication destroys the presumption of
malice. 32 The onus of proving actual malice then lies on plaintiff, private respondent
Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the
existence of malice as the true motive of his conduct.33
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person defamed, and implies an intention to do ulterior and unjustifiable
harm.34 Malice is bad faith or bad motive.35 It is the essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles
in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner
was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles
were written and published without good motives or justifiable ends. On the other hand, we
find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded
by his responsibility as a newspaperman, he proceeded to expose and denounce what he
perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen
has the right to enjoy a good name and reputation, but we do not consider that petitioner
Borjal has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have
been written or published with the knowledge that they are false or in reckless disregard of
whether they are false or not. 37 "Reckless disregard of what is false or not" means that the
defendant entertains serious doubt as to the truth of the publication, 38 or that he possesses a
high degree of awareness of their probable falsity. 39
The articles subject of the instant case can hardly be said to have been written with
knowledge that these are false or in reckless disregard of what is false or not. This is not to
say however that the very serious allegations of petitioner Borjal assumed by private
respondent to be directed against him are true. But we nevertheless find these at least to
have been based on reasonable grounds formed after the columnist conducted several
personal interviews and after considering the varied documentary evidence provided him by
his sources. Thus, the following are supported by documentary evidence: (a) that private
respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile
Export Board (GTEB), to expedite the processing and release of the import approval and
certificate of availability of a garment firm in exchange for the monetary contribution of Juliano
Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the
procedure of the GTEB in processing applications and clarifying that all applicants were
treated
equally;40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of
the FNCLT notwithstanding that he had previously declined the offer;41 and, (c) that despite
the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes
declined the invitation to be guest speakers in the conference, their names were still included
in the, printout of the FNCLT. 42 Added to these are the admissions of private respondent
that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in
exchange for monetary contributions to the FNCLT; 43 (b) he included the name of then
Secretary of Transportation Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; 44 and,
(c) he used different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice. Errors or misstatements are inevitable in any
scheme of truly free expression and debate. Consistent with good faith and reasonable care,
the press should not be held to account, to a point of suppression, for honest mistakes or
imperfections in the choice of language. There must be some room for misstatement of fact
as well as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy. 46 In Bulletin
Publishing Corp. v. Noel47 we held -
A newspaper especially one national in reach and coverage, should be free
to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another
on criminal or civil charges for libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the
general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate
margin of error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public figure may not
be imposed in the absence of proof of "actual malice" on the part of the person making the
libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. v. Bustos, 48 that "the interest of society and the maintenance of
good government demand a full discussion of public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and
unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public
official must not be too thin-skinned with reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.
person must be clearly and preponderantly established to entitle the victim to damages. The
law could not have meant to impose a penalty on the right to litigate, nor should counsel's
fees be awarded every time a party wins a suit.51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co.52 —
Every man has a right to discuss matters of public interest. A clergyman with
his flock, an admiral with his fleet, a general with his army, a judge with his
jury; we are, all of us, the subject of public discussion. The view of our court
has been thus stated: "It is only in despotisms that one must speak sub rosa,
or in whispers, with bated breath, around the corner, or in the dark on a
subject touching the common welfare. It is the brightest jewel in the crown of
the law to speak and maintain the golden mean between defamation, on one
hand, and a healthy and robust right of free public discussion, on the other.

We must however take this opportunity to likewise remind media practitioners of the high WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March
ethical standards attached to and demanded by their noble profession. The danger of an 1996 and its Resolution of 12 September 1996 denying reconsideration are, REVERSED and
unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of SET ASIDE, and the complaint for damages against petitioners is DISMISSED. Petitioners'
the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is counterclaim for damages is likewise DISMISSED for lack of merit. No costs.1âwphi1.nêt
the eventual self-destruction of the right and the regression of human society into a veritable
Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that SO ORDERED.
there can be no absolute "unrestraint" in speech is to truly comprehend the quintessence of
freedom in the marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the press, ought there not also be
freedom from the press? It is in this sense that self-regulation as distinguished from self-
censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a powerful instrument of
injustice." 49

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

On petitioners' counterclaim for damages, we find the evidence too meager to sustain any
award. Indeed, private respondent cannot be said to have instituted the present suit in abuse
of the legal processes and with hostility to the press; or that he acted maliciously, wantonly,
oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling
the latter to damages. On the contrary, private respondent acted within his rights to protect
his honor from what he perceived to be malicious imputations against him. Proof and motive
that the institution of the action was prompted by a sinister design to vex and humiliate a
 Republic of the Philippines City, Branch 104.3 The Information filed by Assistant City Prosecutor Augustine A. Vestil
SUPREME COURT reads:4
Manila
That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
THIRD DIVISION Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral,
Director of Philippine Heart Center, East Avenue, this city, and furnished the
same to other officers of the said hospital, said letter containing slanderous
G.R. No. 113216 September 5, 1997 and defamatory remarks against DR. JUAN F. TORRES, JR., which states in
part, to wit:
RHODORA M. LEDESMA, petitioner,
vs. 27 June 1991
COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as
Presiding Judge of RTC, Quezon City, respondents. Dr. Esperanza I. Cabral
Director

Subject: Return of all

PANGANIBAN, J.: professional fees due Dr.
Rhodora M. Ledesma,
Nuclear Medicine
When confronted with a motion to withdraw an information on the ground of lack of probable Specialist/Consultant,
cause based on a resolution of the secretary of justice, the bounden duty of the trial court is Philippine Heart
to make an independent assessment of the merits of such motion. Having acquired Center, from January 31,
jurisdiction over the case, the trial court is not bound by such resolution but is required to 1989 to January 31,
evaluate it before proceeding further with the trial. While the secretary's ruling is persuasive, it 1991.
is not binding on courts. A trial court, however, commits reversible error or even grave abuse
of discretion if it refuses/neglects to evaluate such recommendation and simply insists on
proceeding with the trial on the mere pretext of having already acquired jurisdiction over the Respondents: Dr. Juan F.
Torres, Jr., Chief, Nuclear
criminal action.
Medicine Section
This principle is explained in this Decision resolving a petition for review on certiorari of the
Decision1 of the Court of Appeals,2 promulgated on September 14, 1993 in CA-G.R SP No. Dr. Orestes P. Monzon,
30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying Staff Consultant
the prosecution's withdrawal of a criminal information against petitioner.
Dear Dr. Cabral,
The Antecedent Facts
This is to demand the return of all professional fees due me
as a consultant in Nuclear Medicine, this Center, since
From the pleadings submitted in this case, the undisputed facts are as follows:
January 31, 1989 until my resignation effective January 31,
1991, amounting to at least P100,000.00 for the year 1990
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. alone. Records in the Nuclear Medicine Section will show
Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutor's Office, that from January 1989 to January 1991, a total of 2,308
docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint. patients were seen. Of these, I had officially supervised,
processed, and interpreted approximately a total of 1,551
Finding "sufficient legal and factual basis," the Quezon City Prosecutor's Office filed on July cases as against approximately 684 and 73 cases done by
6, 1992 an Information for libel against petitioner with the Regional Trial Court of Quezon Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of
professional fees averaging P1,116.90/month supposedly
representing 20% of the total monthly professional fees. The
rest were divided equally between Dr. Monzon and Dr.
Torres. There was never any agreement between us three
consultants that this should be the arrangement and I am
certain that this was not with your approval. The burden of
unfairness would have been lesser if there was an equal
distribution of labor and the schedule of duties were strictly
followed. As it was, the schedule of duties submitted monthly
to the office of the Asst. Director for Medical Services was
simply a dummy to comply with administrative requirements
rather than a guideline for strict compliance. Both
consultants have complete daily time records even if they did
not come regularly. Dr. Torres came for an hour every week,
Dr. Monzon came sporadically during the week while I was
left with everything from training the residents and
supervising the Techs to processing and interpreting the
results on a regular basis. I had a part time appointment just
like Dr. Monzon and Dr. Torres.
In the interest of fairness and to set a precedent for the
protection of future PHC Nuclear Medicine Alumni I am
calling your attention to the unfair and inhuman conditions I
went through as a Consultant in that Section. I trust that your
sense of professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the
distribution of professional fees in this Section. At this point,
let me stress that since professional fees vary according to
the type of procedure done and since there was no equity of
labor between us I am not settling for an equal percentage
share. I demand that I be indemnified of all professional fees
due me on a case to case basis.
Let me make clear my intention of pursuing this matter
legally should there be no favorable action in my behalf. Let
me state at this point 6 that the actions of Dr. Torres and Dr.
Monzon are both unprofessional and unbecoming and are
clearly violating the code of ethics of the medical profession
and the Philippine Civil Service Rules and Regulations
related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused
very well knew, the same are entirely false and untrue but were publicly
made for no other purpose than to expose said DR. JUAN F. TORRES, JR.
to public ridicule, thereby casting dishonor, discredit and contempt upon the
person of the said offended party, to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner
before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City
prosecutor to move for deferment of further proceedings and to elevate the entire records of
the case. 5 Accordingly, a "Motion to Defer, Arraignment" dated September 7, 1992 was filed
by Prosecutor Tirso M. Gavero before the court a quo.6 On September 9, 1992, the trial court
granted the motion and deferred petitioner's arraignment until the final termination of the
petition for review.7
Without the consent or approval of the trial prosecutor, private complainant, through counsel,
filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for
Arraignment/Trial.8
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of
September 9, 1992 and scheduling petitioner's arraignment on January 18, 1993 at two
o'clock in the afternoon. 9
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed
the Quezon City investigating prosecutor. Pertinent portions of Drilon's ruling read: 10
From the circumstances obtaining, the subject letter was written to bring to
the attention of the Director of the Philippine Heart Center for Asia and other
responsible authorities the unjust and unfair treatment that Dr. Ledesma was
getting from complainants. Since complainants and respondent are
government employees, and the subject letter is a complaint to higher
authorities of the PHCA on a subject matter in which respondent has an
interest and in reference to which she has a duty to question the same is
definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang
vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48
Phil. 922, ruled that "A communication made in good faith upon any subject
matter in which the party making the communication has an interest or
concerning which he has a duty is privileged. . . although it contains
incriminatory or derogatory matter which, without the privilege, would be
libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a
direct evidence of respondent's righteous disposition of following the rule of
 law and is a clear indication that her purpose was to seek relief from the
proper higher authority who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative
complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-
will in sending the subject communication to the Director of the PHCA, she
would not have sent the second letter and filed the administrative and civil
cases against complainants.
Moreover, it is unbelievable that it took complainants one year to realize that
the questioned letter subjected them to public and malicious imputation of a
vice or omission. It is beyond the ordinary course of human conduct for
complainants to start feeling the effects of the alleged libelous letter — that of
experiencing sleepless nights, wounded feelings, serious anxiety, moral
shock and besmirched reputation — one year after they read the
communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to
the instant case is unfounded. In the first place, the instant cases are not
being reinvestigated. It is the resolutions of the investigating prosecutor that
are under review. Further, the record shows that the court has issued an
order suspending the proceedings pending the resolutions of the petitions for
review by this Office. In the issuance of its order, the court recognizes that
the Secretary of Justice has the power and authority to review the resolutions
of prosecutors who are under his control and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You
are directed to withdraw the Informations which you filed in Court. Inform this
Office of the action taken within ten (10) days from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a
Motion to Withdraw Information dated February 17, 1993, 11 attaching thereto the resolution
of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993,
as follows: 12
The motion of the trial prosecutor to withdraw the information in the above-
entitled case is denied. Instead, the trial prosecutor of this court is hereby
directed to prosecute the case following the guidelines and doctrine laid
down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA
462.
Petitioner's motion for reconsideration 13 was denied by the trial judge in the Order dated
March 5, 1993, as follows: 14
Finding no cogent reason to justify the reconsideration of the ruling of this
Court dated February 22, 1993, the Motion for Reconsideration dated March
1, 1993 filed by the accused through counsel is hereby denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a
Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for
proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129. 15
Respondent Court dismissed the petition "for lack of merit," holding that it had no jurisdiction
to overturn the doctrine laid down in Crespo vs. Mogul — once a complaint or information has
been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the
accused, rests on the sound discretion of the trial court. 16
Hence, this recourse to this Court.
The Issues
For unexplained reasons, petitioner failed to make an assignment of errors against the
appellate court. Her counsel merely repeated the alleged errors of the trial court: 17
I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent
Judge Asuncion relied solely on the "Crespo vs. Mogul" (151 SCRA 462)
decision. It is respectfully submitted that said case is not applicable because:
1. It infringes on the constitutional separation of powers between the
executive and judicial branches of the government;
2. It constitutes or it may lead to misuse or misapplication of "judicial power"
as defined in the Constitution;
3. It goes against the constitutional proscription that rules of procedure
should not diminish substantive rights;
4. It goes against the principle of non-delegation of powers;
5. It sets aside or disregards substantive and procedural rules;
6. It deprives a person of his constitutional right to procedural due process;
7. Its application may constitute or lead to denial of equal protection of laws;
8. It deprives the secretary of justice or the president of the power to control
or review the acts of a subordinate official;
 9. It will lead to, encourage, abet or promote abuse or even corruption among
the ranks of investigating fiscals;
10. It does not subserve the purposes of a preliminary investigation because
— committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the
(10.a) It subjects a person to the burdens of an unnecessary trial, specially in
cases where the investigating fiscal recommends no bail for the accused;
(10.b) It subjects the government, both the executive and the judiciary, to
unnecessary time and expenses attendant to an unnecessary trial;
(10.c) It contributes to the clogging of judicial dockets; and
11. It has no statutory or procedural basis or precedent.
II. On the assumption that "Crespo vs. Mogul" is applicable, it is submitted
that —
1. Respondent Judge Asuncion committed grave abuse of discretion,
amounting to lack of jurisdiction, when he denied the Motion to Withdraw
Information since he had already deferred to, if not recognized, the authority
of the Secretary of Justice; and
2. The facts in "Crespo vs. Mogul" are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting
to lack of jurisdiction, when he relied solely on said case in denying the
Motion to Withdraw Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in
affirming the trial court's denial of the prosecution's Motion to Withdraw Information?
The Court's Ruling
The petition is impressed with merit. We answer the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural
matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2
of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court,
provided:
Sec. 2. Contents of petition. — The petition shall contain a concise statement
of . . . the assignment of errors made in the court below . . . .
A petition for review on certiorari under Rule 45 requires a concise statement of the errors
petition could have been dismissed by this Court motu proprio, considering that under
Section 4 of the same Rule, "review is not a matter of right but of sound discretion."
We take this occasion to stress the need for precision and clarity in the assignment of errors.
Review under this rule is unlike an appeal in a criminal case where the death
penalty, reclusion perpetua or life imprisonment is imposed and where the whole case is
opened for review. Under Rule 45, only the issues raised therein by the petitioner will be
passed upon by the Court, such that an erroneous specification of the issues may cause the
dismissal of the petition. We stressed this in Circular No. 2-90, entitled "Guidelines to be
Observed in Appeals to the Court of Appeals and to the Supreme Court," as follows:
4. Erroneous Appeals. . . . .
e) Duty of counsel. — It is therefore incumbent upon every attorney who
would seek review of a judgment or order promulgated against his client to
make sure of the nature of the errors he proposes to assign, whether these
be of fact or of law; then upon such basis to ascertain carefully which Court
has appellate jurisdiction; and finally, to follow scrupulously the requisites for
appeal prescribed by law, ever aware that any error or imprecision in
compliance may well be fatal to his client's cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court — noting the importance of the substantial matters raised —
decided to overlook petitioner's lapse and granted due course to the petition per Resolution
dated July 15, 1996, with a warning that henceforth petitions which fail to specify an
assignment of errors of the proper lower court may be denied due course motu proprio by this
Court.
Determination of Probable Cause
Is an Executive Function
The determination of probable cause during a preliminary investigation is judicially
recognized as an executive function and is made by the prosecutor. The primary objective of
a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy
and stress of defending himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary proceeding by
a competent officer designated by law for that purpose. Secondarily, such summary
proceeding also protects the state from the burden of unnecessary expense and effort in
prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless
charges. 18
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties'
evidence is not required, but only such as may engender a well-grounded belief that an
offense has been committed and that the accused is probably guilty thereof. 19 By reason of
the abbreviated nature of preliminary investigations, a dismissal of the charges as a result
thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy
attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the
determination of probable cause for the issuance of a warrant of arrest or a search warrant
from a preliminary investigation proper, in this wise: 20
. . . Judges and prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from
a preliminary investigation proper which ascertains whether the offender
should be held for trial or released. . . . The determination of probable cause
for the warrant of arrest is made by the Judge. The preliminary investigation
proper — whether . . . there is reasonable ground to believe that the accused
is guilty of the offense charged and, therefore, whether . . . he should be
subjected to the expense, rigors and embarrassment of trial — is the function
of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecutor's
job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the
judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief
Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the
determination of the existence of probable cause properly pertains to the public prosecutor in
the "established scheme of things," and that the proceedings therein are "essentially
preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the
guilt or innocence of the persons charged with a felony or a crime." 21
In Crespo vs. Mogul, 22 the Court emphasized the cardinal principle that the public prosecutor
controls and directs the prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. The institution of a criminal action depends upon the
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not follow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. The reason for
placing the criminal prosecution under the direction and control of the fiscal is
to prevent malicious or unfounded prosecution by private persons. It cannot
be controlled by the complainant. Prosecuting officers under the power
vested in them by law, not only have the authority but also the duty of
prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the
jurisdiction of their office. They have equally the legal duty not to prosecute
when after an investigation they become convinced that the evidence
adduced is not sufficient to establish a prima facie case.
In the same case, the Court added that where there is a clash of views between a judge who
did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor
should normally prevail: 23
. . . . The Courts cannot interfere with the fiscal's discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to
compel the fiscal to prosecute a proceeding originally initiated by him on an
information, if he finds that the evidence relied upon by him is insufficient for
conviction. Neither has the Court any power to order the fiscal to prosecute
or file an information within a certain period of time, since this would interfere
with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal
who asks for the dismissal of the case for insufficiency of evidence has
authority to do so, and Courts that grant the same commit no error. The fiscal
may re-investigate a case and subsequently move for the dismissal should
the re-investigation show either that the defendant is innocent or that his guilt
may not be established beyond reasonable doubt. In a clash of views
between the judge who did not investigate and the fiscal who did, or between
the fiscal and the offended party or the defendant, those of the fiscal's should
normally prevail. . . . . .
Appeal as an Exercise of the Justice
Secretary's Power of Control Over Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the
Code gives the secretary of justice supervision and control over the Office of the Chief
Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of
supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the
Code:
(1) Supervision and Control. — Supervision and control shall include
authority to act directly whenever a specific function is entrusted by law or
regulation to a subordinate; direct the performance of duty; restrain the
commission of acts; review, approve, reverse or modify acts and decisions of
subordinate officials or units; . . . . .
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act
4007, which read:
Sec. 3. . . . .
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the
Senior State Prosecutors, and the State Prosecutors shall . . . perform such
other duties as may be assigned to them by the Secretary of Justice in the
interest of public service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to
a chief of bureau, office, division or service, the same shall be understood as
also conferred upon the proper Department Head who shall have authority to
act directly in pursuance thereof, or to review, modify, or revoke any decision
or action of said chief of bureau, office, division or service.
"Supervision" and "control" of a department head over his subordinates have been defined in
administrative law as follows: 24
In administrative law supervision means overseeing or the power or authority
of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform such duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial steps of an administrative activity
or by an administrative agency should be corrected by higher administrative authorities, and
not directly by courts. As a rule, only after administrative remedies are exhausted may judicial
recourse be allowed.
Appeal to the Secretary of Justice Is Not
Foreclosed by the Ruling in Crespo
In Marcelo vs. Court of Appeals, 25 the Court clarified that Crespo 26 did not foreclose the
power or authority of the secretary of justice to review resolutions of his subordinates in
criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or
prosecutor in the preliminary investigation is subject to the approval of the provincial or city
fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice.
The justice secretary's power of review may still be availed of despite the filing of an
information in court. In his discretion, the secretary may affirm, modify or reverse resolutions
of his subordinates pursuant to Republic Act No. 5180, as amended, 27 specifically in Section
1 (d):
(d) . . . Provided, finally, That where the resolution of the Provincial or City
Fiscal or the Chief State Prosecutor is, upon review, reversed by the
Secretary of Justice, the latter may, where he finds that noprima facie case
exists, authorize and direct the investigating fiscal concerned or any other
fiscal or state prosecutor to cause or move for the dismissal of the case, or,
where he finds a prima facie case, to cause the filing of an information in
court against the respondent, based on the same sworn statements or
evidence submitted without the necessity of conducting another preliminary
investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25,
1990 governing appeals in preliminary investigation. Appeals under Section 2 are limited to
resolutions dismissing a criminal complaint. However, Section 4 provides an exception:
appeals from resolutions finding probable cause upon a showing of manifest error or grave
abuse of discretion are allowed, provided the accused has not been arraigned. In the present
case, petitioner's appeal to the secretary of justice was given due course on August 26, 1992
pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order. No. 223; however,
the scope of appealable cases remained unchanged:
Sec. 1. What May Be Appealed. — Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.
 Appeals from the resolutions of provincial/city prosecutors where the penalty
prescribed for the offense charged does not exceed prision correccional,
regardless of the imposable fine, shall be made to the Regional State
Prosecutors who shall resolve the appeals with finality, pursuant to
Department Order No. 318 dated August 28, 1991 as amended by D.O. No.
34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O.
No. 45 dated February 2, 1993. Such appeals shall also be governed by
these rules.
Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from
a resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable cause except upon
showing of manifest error or grave abuse of discretion. Notwithstanding the
showing of manifest error or grave abuse of discretion, no appeal shall be
entertained where the appellant had already been arraigned. If the appellant
(is) arraigned during the pendency of the
appeal, . . . appeal shall be dismissed motu proprio by the Secretary of
Justice.
An appeal/motion for reinvestigation from a resolution finding probable
cause, however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the
secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court:
Sec. 4. Duty of investigating fiscal.— . . . .
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the
resolution of the provincial or city fiscal or chief state prosecutor, he shall
direct the fiscal concerned to file the corresponding information without
conducting another preliminary investigation or to dismiss or move for
dismissal of the complaint or information.
This appeal rests upon the sound discretion of the secretary of justice arising from his power
of supervision and control over the prosecuting arm of the government, not on a substantial
right on the part of the accused as claimed by petitioner.
Appeal Did Not Divest the
Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an information has
been filed, trial courts should defer or suspend arraignment and further proceedings until the
appeal is resolved. Such deferment or suspension, however, does not signify that the trial
court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution by the secretary of justice to
withdraw the information or to dismiss the case.
Judicial Review of the Resolution
of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual
controversies involving rights which are legally demandable and enforceable. Such power
includes the determination of whether there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. 28 Under this definition, a court is without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive branch of
the government. It is not empowered to substitute its judgment for that of Congress or of the
President. It may, however, look into the question of whether such exercise has been made
in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or
a derogation of their functions. In the words of Justice Laurel in Angara vs. Elertoral
Commission: 29
. . . [W]hen the judiciary mediates to allocate constitutional boundaries, it
does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument sources and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power
of the judicial review under the Constitution. . . . .
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice
to review the decisions of the government prosecutors under him. In Crespo, the secretary
was merely advised to restrict such review to exceptionally meritorious cases. Rule 112,
Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the
trial court to automatically dismiss the case or grant the withdrawal of the information upon
the resolution of the secretary of justice. This is precisely the import
of Crespo, Marcelo, Martinez vs. Court of Appeals30 and the recent case
of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own
evaluation of the merits of the case, because granting the motion to dismiss or to withdraw
the information is equivalent to effecting a disposition of the case itself.
The Marcelo and Martinez
Cases Are Consistent
In Marcelo vs. Court of Appeals, 31 this Court ruled that, although it is more prudent to wait for
a final resolution of a motion for review or reinvestigation from the secretary of justice before
acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless
should make its own study and evaluation of said motion and not rely merely on the awaited
action of the secretary. The trial court has the option to grant or deny the motion to dismiss
the case filed by the fiscal, whether before or after the arraignment of the accused, and
whether after a reinvestigation or upon instructions of the secretary who reviewed the records
of the investigation; provided that such grant or denial is made from its own assessment and
evaluation of the merits of the motion.
In Martinez vs. Court of Appeals, 32 this Court overruled the grant of the motion to dismiss
filed by the prosecuting fiscal upon the recommendation of the secretary of justice because,
such grant was based upon considerations other than the judge's own assessment of the
matter. Relying solely on the conclusion of the prosecution to the effect that there was no
sufficient evidence against the accused to sustain the allegation in the information, the trial
judge did not perform his function of making an independent evaluation or assessment of the
merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department
of Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a
complaint or information is filed in court, any disposition of the case such as its dismissal or
its continuation rests on the sound discretion of the court. Trial judges are thus required to
make their own assessment of whether the secretary of justice committed grave abuse of
discretion in granting or denying the appeal, separately and independently of the
prosecution's or the secretary's evaluation that such evidence is insufficient or that no
probable cause to hold the accused for trial exists. They should embody such assessment in
their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo,
the dismissal of the criminal action upon the favorable recommendation of the Review
Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private
complainant's appeal to the secretary of justice. In effect, the secretary's opinion was totally
disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was
an "erroneous exercise of judicial discretion" as the trial court relied hook, line and sinker on
the resolution of the secretary, without making its own independent determination of the
merits of the said resolution.
No Grave Abuse of Discretion in the
Resolution of the Secretary of Justice
In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the
correctness of the justice secretary's resolution has been amply threshed out in petitioner's
letter, the information, the resolution of the secretary of justice, the motion to dismiss, and
even the exhaustive discussion in the motion for reconsideration — all of which were
submitted to the court — the trial judge committed grave abuse of discretion when it denied
the motion to withdraw the information, based solely on his bare and ambiguous reliance
on Crespo. The trial court's order is inconsistent with our repetitive calls for an independent
and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge
was tasked to evaluate the secretary's recommendation finding the absence of probable
cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to
proceed with the trial without stating his reasons for disregarding the secretary's
recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact,
sufficient ground to grant the motion to withdraw the information. The documents before the
trial court judge clearly showed that there was no probable cause to warrant a criminal
prosecution for libel.
Under the "established scheme of things" in criminal prosecutions, this Court would normally
remand the case to the trial judge for his or her independent assessment of the motion to
withdraw the information. However, in order not to delay the disposition of this case and to
afford the parties complete relief, we have decided to make directly the independent
assessment the trial court should have done. The petitioner has attached as annexes to the
present petition for review the information, which contains a complete and faithful
reproduction of the subject letter, the resolution of the secretary of justice, the prosecution's
motion for reconsideration of the trial court's Order of February 22, 1993, and even the
private complainant's opposition to said motion. The records below have been reproduced
and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no
purpose and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of justice. The
secretary reversed the finding of probable cause on the grounds that (1) the subject letter
was privileged in nature and (2) the complaint was merely a countercharge.
In every case for libel, the following requisites must concur:
(a) it must be defamatory;
(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable.
At the preliminary investigation stage, these requisites must show prima facie a well-
founded belief that a crime has been committed and that the accused probably
committed it. A cursory reading of the information immediately demonstrates a failure
on the part of the complainant to establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or
justifiable motive for making it is shown. There is malice when the author of the imputation is
prompted by personal ill will or spite and speaks not in response to duty but merely to injure
the reputation of the person who claims to have been defamed. 33 In this case, however,
petitioner's letter was written to seek redress of proper grievance against the inaccurate
distribution and payment of professional fees and against unfair treatment in the Nuclear
Medicine Department of the Philippine Heart Center. It is a qualified privileged
communication under Article 354(1) of the Revised Penal Code which provides:
Art. 354. Requirement of publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
xxx xxx xxx
The rule on privileged communication is that a communication made in good faith on any
subject matter in which the communicator has an interest, or concerning which he has a duty,
is privileged if made to a person having a corresponding interest or duty, although it contains
incriminatory matter which, without the privilege, would be libelous and actionable.
Petitioner's letter was a private communication made in the performance of a moral duty on
her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but
to present her grievance to her superior. The privileged nature of her letter overcomes the
presumption of malice. There is no malice when justifiable motive exists; and in the absence
of malice, there is no libel. We note that the information itself failed to allege the existence of
malice.
Thus, we agree with the ruling of the secretary of justice: 34
. . . (T)he subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the
unjust and unfair treatment that Dr. Ledesma was getting from government
employees, and the subject letter is a complaint . . . on a subject matter in
which respondent has an interest and in reference to which she has a duty to
question the same is definitely privileged (US vs. Bustos, 37 Phil. 131).
Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court,
citing Santiago vs. Calvo, 48 Phil. 922, ruled that "a communication made in
good faith upon any subject matter in which the party making the
communication has an interest or concerning which he has a duty is
privileged although it contains incriminatory or derogatory matter which,
without the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a
direct evidence of respondent's righteous disposition of following the rule of
law and is a clear indication that her purpose was to seek relief from the
proper higher authority . . . .
The same interpretation should be accorded the civil and administrative
complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-
will in sending the subject communication to the Director of the PHCA, she
would not have sent the second letter and filed the administrative and civil
cases against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official
duties, sends a communication to another officer or to a body of officers, who have a duty to
perform with respect to the subject matter of the communication, such communication does
not amount to publication within the meaning of the law on defamation. 35 Publication in libel
means making the defamatory matter, after it has been written, known to someone other than
the person to whom it has been written. 36 The reason for such rule is that "a communication
of the defamatory matter to the person defamed cannot injure his reputation though it may
wound his self-esteem. A man's reputation is not the good opinion he has of himself, but the
estimation in which others hold him." 37 In this case, petitioner submitted the letter to the
director of said hospital; she did not disseminate the letter and its contents to third persons.
Hence, there was no "publicity" and the matter is clearly covered by paragraph 1 of Article
354 of the Penal Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one
year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a
countercharge to give Complainant Torres a leverage against petitioner's administrative
action against him.
Ineluctably, Judge Asuncion's denial of the motion to withdraw the information and the
reconsideration thereof was not only precipitate but manifestly erroneous. This is further
compounded by the fact that he did not explain his grounds for his denial inasmuch as he did
not make an independent assessment of the motion or the arguments in the resolution of the
secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo
vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive
in Marcelo and Martinez where this Court required trial courts to make an independent
assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to
Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED.
No costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 139987. March 31, 2005
SALVADOR D. FLOR, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari seeking to reverse the Decision of the Court of
Appeals in CA-G.R. CR Nos. 11577 and 332041 which affirmed the joint decision of the
Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur, in Criminal Case No. P-1855
convicting the petitioner and Nick Ramos2 for libel and Civil Case No. P-1672 awarding
damages in favor of the private complainant, former Governor of Camarines Sur and Minister
of the Presidential Commission on Government Reorganization Luis R. Villafuerte.
The facts are not disputed.
An information for libel was filed before the RTC, Branch 20, Naga City, against the petitioner
and Ramos who were then the managing editor and correspondent, respectively, of the Bicol
Forum, a local weekly newspaper circulated in the Bicol Region. The information reads as
follows:
That on or about the 18th day up to the 24th day of August, 1986, in the Bicol Region
comprised by the Provinces of Albay, Catanduanes, Sorsogon, Masbate, Camarines Sur, and
Camarines Norte, and the Cities of Iriga and Naga, Philippines, and within the jurisdiction of
this Honorable Court under R.A. No. 4363, and B.P. Blg. 129, the above-named accused who
are the news correspondent and the managing editor, respectively, of the local weekly
newspaper Bicol Forum, did then and there willfully, unlawfully and feloniously, without
justifiable motive and with malicious intent of impeaching, discrediting and destroying the
honor, integrity, good name and reputation of the complainant as Minister of the Presidential
Commission on Government Reorganization and concurrently Governor of the Province of
Camarines Sur, and to expose him to public hatred, ridicule and contempt, write, edit, publish
and circulate an issue of the local weekly newspaper BICOL FORUM throughout the Bicol
Region, with banner headline and front page news item read by the public throughout the
Bicol Region, pertinent portions of which are quoted verbatim as follows:
"VILLAFUERTE’S DENIAL CONVINCES NO ONE"
NAGA CITY-Gov. Luis Villafuerte’s denial that he did not spend government money for his
trips to Japan and Israel two weeks ago has failed to convince people in Camarines Sur,
reliable sources said.
What the people know, the sources said, is that the two trips of the governor who is also the
minister of the Government Reorganization Commission was purely junket.
This was confirmed when capitol sources disclosed that about P700,000.00 collected by way
of cash advances by ranking provincial officials were allegedly used for the two trips.
The cash advances, the sources said, were made at the instance of Villafuerte.
It was learned that the amount was withdrawn without resolution approving its release.
Villarfuerte however said that he spent his own money for the two trips.
The governor was accompanied abroad by political supporters mostly municipal mayors in
Camarines Sur, the report said.
This was contested by several individuals who told Bicol Forum that the members of
Villafuerte’s entourage did not have official functions in the province.
Villafuerte and his companions reportedly attended the 1986 baseball games in Japan.
When in truth and in fact said allegations are false and utterly untrue as the complainant has
not done such acts, thus embarrassing, discrediting and ridiculing him before his friends,
followers and other people.3
The information was later amended to include Jose Burgos, Jr., who was at that time the
publisher-editor of the Bicol Forum.4 The trial court, however, never acquired jurisdiction over
his person as he did not surrender nor was he ever arrested by the authorities.
It appears from the records that prior to the filing of the criminal complaint, the private
complainant had already instituted a separate civil action for damages arising out of the
questioned news article before the RTC, Branch 23, Naga City. Due to this, the criminal suit
for libel was ordered consolidated with the civil case pursuant to Article 360 of the Revised
Penal Code, as amended.5 Subsequently, the consolidated actions were transferred to RTC,
Branch 33, Pili, Camarines Sur, in accordance with Republic Act No. 4363 which outlines the
venue of libel cases in the event that the offended party is a public official such as in this
case.6 Thereafter, a joint trial of the cases ensued with accused Burgos, Jr., being declared
as in default in the civil case due to his failure to attend its pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty. 7
During the trial, the private complainant himself took the witness stand to refute the
statements contained in the subject news article. According to him, there were previous news
reports and broadcasts regarding the cash advances allegedly made by some provincial
government officials of Camarines Sur and that it was also reported that he made a trip to
Japan which was branded as a mere "junket."8 The private complainant, however, explained
that after he clarified over the radio that he never went to Japan, the issue was never
discussed again until the matter was included in the questioned news item. 9 As for the cash
advances, the private complainant stated that the Provincial Auditor and the Budget Officer
had already made a statement "to the effect that he had no pending cash
advances."10 Further, the private complainant clarified that he made his trip to Israel in his
capacity as a cabinet member of former President Corazon C. Aquino and that he spent his
own money for the said official trip thereby debunking Bicol Forum’s report that his travel to
Israel was purely a junket.11 The private complainant also complained that no one from the
Bicol Forum made any attempt to get his side of the story nor was he aware of any effort
exerted by the representatives of said publication to confirm the veracity of the contents of
the subject news article from any source at the provincial capitol. 12 Finally, the private
complainant took exception to the banner headline which states "Villafuerte’s Denial
Convinces No One." According to him, the Bicol Forum seemed to be making a mockery of
his previous explanations regarding the cash advances and his trips abroad and such a
sweeping statement subjected him to public ridicule and humiliation.13
On the other hand, Ramos testified that he wrote the questioned news item on the basis of a
note given to him by a source whom he refused to identify.14 Said source was allegedly
connected with the Provincial Treasurer’s Office.15The note reads:
Media consultants of Villafuerte specially DWLV announcers had been announcing the
travels of Villafuerte to Israel and Japan without spending a single centavo. This is
unbelievable as lately the Gov. said he [spent] his own money for the trips.
No one will believe this. The governor and party went to Israel and Japan as there were some
P700,000.00 cash advances collected in form of advances by top provincial officials for the
trips. No [doubt] Villafuerte had a hand on this because he is the governor approving cash
advances. Among them were Panes and Maceda.
There were no resolution, please publish this that people concern will react and they be
forced to account for the money. Authenticated papers will follow. Bull’s eye ito.
capr16
Ramos likewise alleged that prior to writing the subject news article, he went to his source to
ask some clarificatory questions and was told that he would be given authenticated records of
the cash advances. Later, he was given a copy of the Schedule of Cash Advances of
Disbursing Officers and Other Officers (as of June 30 1987).17 Among the provincial
government officials listed therein were the private respondent who had a 1986 balance of
P25,000.00 incurred for cultural activities; Atty. Jose Maceda who also had a 1986 balance of
P130,084.00 for sports development, Operation Smile, NAMCYA Festival, and prisoners’
subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000
for the purpose of sports development. Ramos also claimed that when he went to the
Provincial Treasurer’s Office to conduct his investigation, he was shown some vouchers and
was told that many of the members of the baseball delegation to Japan were not elected
provincial officials and, in fact, some mayors and private individuals were sent as part of the
Philippine group.18
During his turn at the witness stand, the petitioner admitted that the headline was written by
him in his capacity as the managing editor19 in accordance with the policy of their paper to
print as headlines matters dealing with public concerns and public officials. 20 According to
him, the banner headline and the sub-headline truthfully reflect the substance of the story
prepared by Ramos.21
After the trial, the court a quo rendered a joint decision the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:
In Criminal Case No. P-1855
Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the
crime of Libel defined and punished under Article 353 in connection with Article 355 of the
Revised Penal Code and they are each sentenced to pay a fine of Two Thousand Pesos
(P2,000.00) with subsidiary imprisonment in case of insolvency; and to pay the costs of suit.
In Civil Case No. P-1672
Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly
and severally to the plaintiff the following:
1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages;
2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;
3. The amount of Five Thousand Pesos (P5,000.00) as attorney’s fees; and to pay the costs
of suit.22
Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with
the Court of Appeals which affirmed the judgment of the trial court through its decision dated
10 December 1996.23 They thereafter filed a motion for reconsideration24 which was denied
for lack of merit by the appellate court in its resolution of 19 August 1999.25
In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus:
The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who
made the trips abroad using government money as there were cash advances of
P700,000.00 made by top provincial officials, without first having verified the truth about the
matters contained in his report. The imputation became malicious when they are based on
mere conjectures. The alleged libelous article must be construed as a whole. The effect of
the news item upon the minds of the readers must be considered in the prosecution of libel
cases. The words used in the news report tends to impute a criminal act on the governor
which may cause the readers to hold him up to public ridicule and induce them to believe that
the governor was indeed guilty. The accused editor admitted that he did not make any
personal investigation as to the truth of the statements made in the report. When such
communication was sent for publication, the so-called privilege was destroyed when malice in
fact was present.26
In fine, the sole issue brought for the consideration of this Court is whether the questioned
news item is libelous. We reverse.
Libel is defined as "a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the
memory of one who is dead."27 Any of these imputations is defamatory and under the general
rule stated in Article 354 of the Revised Penal Code, every defamatory imputation is
presumed to be malicious.28 The presumption of malice, however, does not exist in the
following instances:
1. A private communication made by any person to another in the performance of any legal,
moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.29
The law recognizes two kinds of privileged matters. First are those which are classified
as absolutely privilegedwhich enjoy immunity from libel suits regardless of the existence of
malice in fact. Included herein are statements made in official proceedings of the legislature
by the members thereof.30 Likewise, statements made in the course of judicial proceedings
are absolutely privileged but only if pertinent or relevant to the case involved. 31
The other kind of privileged matters are the qualifiedly or conditionally
privileged communications which, unlike the first classification, may be susceptible to a
finding of libel provided the prosecution establishes the presence of malice in fact. The
exceptions provided for in Article 354 of the Revised Penal Code fall into this category.
In the case, however, of Borjal v. Court of Appeals,32 this Court recognized that the
enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is rendered
more expansive by the constitutional guarantee of freedom of the press, thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest are likewise privileged.
The rule on privileged communications had its genesis not in the nation’s penal code but in
the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As
early as 1918, in United States v. Cañete [38 Phil. 253], this Court ruled that publications
which are privileged for reasons of public policy are protected by the constitutional guaranty
of freedom of speech. This constitutional right cannot be abolished by the mere failure of the
legislature to give it express recognition in the statute punishing libels. 33
Clearly, when confronted with libel cases involving publications which deal with public officials
and the discharge of their official functions, this Court is not confined within the wordings of
the libel statute; rather, the case should likewise be examined under the constitutional
precept of freedom of the press. As enunciated in the seminal case of United States v.
Bustos34 -
The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless,
as the individual is less than the State, so must expected criticism be born for the common
good. Rising superior to any official, or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary – to any or all the agencies of Government – public opinion
should be the constant source of liberty and democracy. 35
Of course, this does not mean that a public official is barred from recovering damages in
cases involving defamations. His entitlement, however, is limited to instances when the
defamatory statement was made with actual malice – that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.36 This is the test laid down in the
leading case of New York Times Co. v. Sullivan.37
In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous
news item was "designed to malign the integrity and reputation of the [private complainant]"
for it ascribed to the latter corruption and dishonesty in government service. 38 Moreover, the
OSG maintains that the questioned news article does not enjoy the mantle of protection
afforded a privileged matter as the petitioner and Ramos published the news item based on
mere speculation and conjecture.39 Their decision to publish the unverified information
furnished them by the unnamed source, who was never presented before the trial court, and
their failure to verify the truth of statements which appeared under the banner headline of the
18-24 August 1986 issue of the Bicol Forum indicates that the news item was published
"intemperately and maliciously."40 The OSG is therefore of the opinion that the subject news
item satisfied the test pronounced in the New York Times case. We do not agree.
As the US Supreme Court itself declared, "reckless disregard … cannot be fully
encompassed in one infallible definition. Inevitably its outer limits will be marked out through
case-by-case adjudication."41 The case of Garrison v. State of Louisiana42 stressed that "only
those false statements made with the high degree of awareness of their probable falsity
demanded by New York Times may be the subject of either civil or criminal sanctions"43 and
concluded by restating the "reckless disregard standard" in the following manner:
. . . The test which we laid down in New York Times is not keyed to ordinary care;
defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard
for the truth.44
Subsequently, in St. Amant v. Thompson45 it was stated that –
. . . These cases are clear that reckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated before publishing. There
must be sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication. Publishing with such doubts shows reckless
disregard for truth or falsity and demonstrates actual malice. 46
Applied to the case at bar, we hold that the prosecution failed to meet the criterion of
"reckless disregard." As the records reveal, the issue of cash advances against the coffers of
the provincial government of Camarines Sur was a major political topic in said locality at that
time. Even the private respondent himself admitted during his direct testimony that he went
on radio in order to address the matter. It was clearly a legitimate topic to be discussed not
only by the members of the media but by the public as what was involved was the
dispensation of taxpayers’ money.
Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession
information relating to the cash advances and the private respondent’s travels abroad. The
information was provided by one who worked in the provincial treasurer’s office and had
access to the pertinent financial records of the provincial government. Their informant was
familiar with the procedure with regard to the approval of cash advances. The inference they
drew from the note given by their source that the private respondent prodded some of the
provincial government officials to take out cash advances may have been false but the same
does not warrant a conviction for libel nor support a claim for damages. As discussed
by Newell –
Slight unintentional errors, however, will be excused. If a writer in the course of temperate
and legitimate criticism falls into error as to some detail, or draws an incorrect inference from
the facts before him, and thus goes beyond the limits of strict truth, such inaccuracies will not
cause judgment to go against him, if the jury are satisfied, after reading the whole publication,
that it was written honestly, fairly and with regard to what truth and justice require. "It is not to
be expected that a public journalist will always be infallible."47
During the hearing of these cases, the private complainant also refuted the material points
contained in the subject news article in an effort to prove the falsity of the allegations
contained therein. This Court finds such effort inadequate to adjudge the petitioner guilty of
the crime of libel or to entitle the private respondent to damages. Under the New York
Times test, false statements alone are not actionable; maliciousness may be shown only
through knowledge of falsity or reckless disregard of truth or falsity. 48
Further, both the prosecution and the OSG make capital of Ramos and the petitioner’s failure
to confirm the information supplied by the unidentified source which ultimately became the
basis for the news article under consideration in an obvious attempt to establish the element
of "reckless disregard for truth." The prosecution also painstakingly tried to establish malice in
fact on the part of the petitioner by harping on the fact that neither he nor Ramos took the
time to give the private respondent the chance to air his side before putting the alleged
libelous news story to print.
The contention fails to persuade.
While substantiation of the facts supplied is an important reporting standard, still, a reporter
may rely on information given by a lone source although it reflects only one side of the story
provided the reporter does not entertain a "high degree of awareness of [its] probable
falsity."49 The prosecution, in this case, utterly failed to prove that the petitioner and Ramos
entertained such awareness.
We also hold that the petitioner’s and Ramos’s failure to present their informant before the
court as well as other evidence that would prove Ramos’ claim that he had conducted an
investigation to verify the information passed on to him should not be taken against them. On
this point, we turn to our pronouncement in the case of Rodolfo R. Vasquez v. Court of
Appeals, et al.,50 to wit:
A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations would not
only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would deter citizens from
performing their duties as members of a self-governing community. Without free speech and
assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, "public discussion is a political duty" and "the greatest menace to freedom
is an inert people."51
Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of
the petitioner was readily apparent when, during his cross-examination, Ramos testified that
he was not allowed by the custodians of the material provincial financial records to photocopy
the latter particularly because said documents dealt with the matter of cash advances. 52
Further, as their informant was employed in the provincial treasurer’s office, it is
understandable why he opted not to expose himself and openly charge his superior, the
private complainant herein, lest he incur the latter’s wrath.

Finally, the private respondent claims that the banner headline ridiculed him before the public
does not merit consideration as the rule in this jurisdiction is that "[t]he headline of a
newspaper story or publication claimed to be libelous must be read and construed in
connection with the language that follows."53 A perusal of the entire news story
accompanying the headline in this case readily establishes the fact that the questioned article
dealt with refutations by the private respondent’s critics of his explanation over the radio with
regard to the issues mentioned therein. The wording of the headline may have contained an
exaggeration but the same nevertheless represents a fair index of the contents of the news
story accompanying it.54

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10

December 1996 which affirmed the Joint Decision dated 18 March 1991 of the Regional Trial
Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19 August 1999 denying
reconsideration are REVERSED and SET ASIDE. No costs.

SO ORDERED.
 SECOND DIVISION
On 30 September 1990, the following news item appeared in the Peoples Journal, a tabloid of
PHILIPPINE JOURNALISTS, INC. G.R. No. 143372
general circulation:
(PEOPLES JOURNAL), ZACARIAS
NUGUID, JR. and CRISTINA LEE, P e t i t i Present:
o n e r s,
Swiss Shoots Neighbors Pets
PUNO,
Chairman,
- versus -
AUSTRIA-MARTINEZ,
RESIDENTS of a subdivision in Paraaque have asked the Bureau of
CALLEJO, SR., Immigration to deport a Swiss who allegedly shoots wayward neighbors pets
that he finds in his domain.
TINGA, and
FRANCIS THOENEN,
CHICO-NAZARIO, JJ.
R e s p o n d e n t. The BF Homes residents through lawyer Atty. Efren Angara complained that
the deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could
Promulgated: help prevent the recurrence of such incident in the future.

December 13, 2005 Angara explained that house owners could not control their dogs and cats
when they slip out of their dwellings unnoticed.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

An alleged confrontation between Thoenen and the owner of a pet he shot

recently threatens to exacerbate the problem, Angara said.

DECISION

Cristina Lee[1]

CHICO-NAZARIO, J.:

For almost a century, this Court has sought that elusive equilibrium between the law on The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this

country with his Filipina wife and their children. Claiming that the report was false and
defamation on one hand, and the constitutionally guaranteed freedoms of speech and press
defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same
on the other. This case revisits that search.
prior to publication, he filed a civil case for damages against herein petitioners Philippine

Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.

Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the
community, and that since it had been published, he and his wife received several queries and
angry calls from friends, neighbors and relatives. For the impairment of his reputation and
standing in the community, and his mental anguish, Thoenen sought P200,000.00 in moral
damages, P100,000.00 in exemplary damages, and P50,000.00 in attorneys fees.
The petitioners admitted publication of the news item, ostensibly out of a social and moral duty
to inform the public on matters of general interest, promote the public good and protect the
moral public (sic) of the people, and that the story was published in good faith and without
malice.[2]
The principal source of the article was a letter[3] by a certain Atty. Efren Angara addressed to
Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now
Bureau of Immigration), which states:
Dear Madame:
We would like to request your office to verify the true
status/authenticity of the residency in the Philippines of a foreign national
(a Swiss) by the name of Francis Thoenen who is presently residing at No.
10 Calcuta cor. Beirut Street, BF Homes (PH. III), Paraaque, Metro
Manila. I received (sic) complaint from my clients residing around his
vicinity that this foreigner had (sic) been causing troubles ever since he
showed up. He is too meticulous and had (sic) been shooting dogs and
cats passing his house wall everytime.
Such act which (sic) is unacceptable to the owners especially if inspite
(sic) of control their pets slips (sic) out unnoticed. A confrontation between
him and the owner of the dog he shoot, (sic) already occurred last time. In
some instances this guy had been always driving his car barbarously
inside the subdivision with children playing around (sic) the street. Before
my clients petitioned themselves with the endorsement of the
Homeowners Association and filed to your office for deportation were
respectfully seeking your assistance to investigate this alien to prevent
further incident occurrence (sic) in the future. He should not be allowed to
dominate the citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID,
acquired a copy of the above letter from a trusted source in the CIDs Intelligence Division. They
claimed to have reasonable grounds to believe in the truth and veracity of the information
derived (from their) sources.[4]
It was proven at trial that the news article contained several inaccuracies. The headline, which
categorically stated that the subject of the article engaged in the practice of shooting pets, was
untrue.[5] Moreover, it is immediately apparent from a comparison between the above letter and
the news item in question that while the letter is a mere request for verification of Thoenens
status, Lee wrote that residents of BF Homes had asked the Bureau of Immigration to deport a
Swiss who allegedly shoots neighbors pets. No complaints had in fact been lodged against him
by any of the BF Homeowners,[6] nor had any pending deportation proceedings been initiated
against him in the Bureau of Immigration.[7]
Thoenen also submitted a Certification[8] from the Office of the Bar Confidant that there was no
lawyer in its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the author of
the letter on which she based her article. Finally, the trial also showed that despite the fact that
respondents address was indicated in the letter, Cristina Lee made no efforts to contact either
him or the purported letter-writer, Atty. Angara.[9]
The petitioners claim that Lee sought confirmation of the story from the newspapers
correspondent in Paraaque, who told her that a woman who refused to identify herself
confirmed that there had indeed been an incident of pet-shooting in the neighborhood involving
the respondent.[10] However, the correspondent in question was never presented in court to
verify the truth of this allegation. Neither was the alleged CID source presented to verify that
the above letter had indeed come from the Department, nor even that the same was a certified
true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision [11] in
favor of the petitioners, which reads in part:
There is no malice on the part of the defendants in publishing the news
item done in the exercise of their profession as journalists reporting to the
people on matters of public interest. The news report was based on an official
communication filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No.
27086, September 30, 1991, which is similar to the present case:
While indeed, the news item subject of the present
case might have ruffled the sensitivities of plaintiff, this Court
however believes that the alleged defamatory articles falls
within the purview of a qualifiedly privileged matter, and that
therefore, it cannot be presumed to be malicious. The onus of
proving malice is accordingly shifted to the plaintiff, that is, that
he must prove that the defendants were actuated by ill-will in
what they caused to be printed and published, with a design
to carelessly or wantonly injure the plaintiff. (US vs. Bustos, et
al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by
the freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED
WITHOUT PRONOUNCEMENT AS TO COSTS.[12]
On appeal, the court a quo reversed[13] the trial court. It held that although freedom of
expression and the right of speech and of the press are among the most zealously guarded in
the Constitution, still, in the exercise of these rights, Article 19 of the Civil Code requires
everyone to act with justice, give everyone his due, and observe honesty and good faith. The
appellate court emphasized that Thoenen was neither a public official nor a public figure, and
3. The Court of Appeals erred in concluding that petitioners did not
thus, ascertain the truth of the subject news item.
. . . [E]ven without malice on the part of defendants-appellees, the news item
published in the 30 September 1990 edition of Peoples Journal had been done
in violation of the principle of abuse of right under Article 19 of the Civil Code, 4. The Court of Appeals erred in awarding damages notwithstanding that
in the absence of a bona fide effort to ascertain the truth thereof, i.e., to the same was excessive unconscionable and devoid of any basis.
observe honesty and good faith, which makes their act a wrongful omission.
Neither did they act with justice and give everyone his due, because without
ascertaining the veracity of the information given them by the Intelligence
Bureau of the Bureau of Immigration, they published a news article which they
were aware would bring the person specifically named therein, viz, Francis
Thoenen, the plaintiff-appellant in this case, into disrepute.

. The petitioners argue that this case is one for damages arising from libel, and not one

for abuse of rights under the New Civil Code. They further claim the constitutional protections

WHEREFORE, the foregoing considered, the Decision appealed from
is hereby REVERSED and SET ASIDE. In its stead, We find for the appellant
and award him moral damages of P200,000.00; exemplary damages
of P50,000.00, and legal fees to P30,000.00; all of which shall be borne jointly
and severally by appellees.[14]
extended by the freedom of speech and of the press clause of the 1987 Constitution against
liability for libel, claiming that the article was published in fulfillment of its social and moral duty
to inform the public on matters of general interest, promote the public good and protect the
moral [fabric] of the people.[16] They insist that the news article was based on a letter released

by the Bureau of Immigration, and is thus a qualifiedly privileged communication. To recover

damages, the respondent must prove its publication was attended by actual malice - that is,

with knowledge that it was false or with reckless disregard of whether it was false or not. [17]

Petitioners motion for reconsideration having been denied, [15] this

petition for certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on the
For the reasons stated below, we hold that the constitutional privilege granted under
following grounds:
the freedom of speech and the press against liability for damages does not extend to the

petitioners in this case.

1. The Court of Appeals erred in finding the petitioners Cristina Lee,
Nuguid and PJI liable under Article 19 of the Civil Code.

2. The Court of Appeals erred in finding the petitioners liable for libel even
if the article was based on a letter released by the Bureau of Immigration,
hence a qualified privilege communication.
The freedom of speech and of the press is not absolute. The freedom of speech and
press and assembly, first laid down by President McKinley in the Instruction to the Second
Philippine Commission of 07 April 1900, is an almost verbatim restatement of the first
amendment of the Constitution of the United States.[18]Enshrined in Section 4, Article III of the
Bill of Rights of the 1987 Constitution, it states, No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
But not all speech is protected. The right of free speech is not absolute at all times and
under all circumstances. There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which has never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the insulting or
fighting words - those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality. [19]
Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as a
public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
For an imputation to be libelous, the following requisites must be met: (a) theallegation
of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity
of the person defamed; and (d) existence of malice.[20] In Vasquez v. Court of Appeals,[21] we
had occasion to further explain. Thus:
An allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or imaginary,
or any act, omission, condition, status or circumstance which tends to dishonor
or discredit or put him in contempt, or which tends to blacken the memory of
one who is dead.
There is publication if the material is communicated to a third person. It is
not required that the person defamed has read or heard about the libelous
remark. What is material is that a third person has read or heard the libelous
statement, for a mans reputation is the estimate in which others hold him, not
the good opinion which he has of himself.
On the other hand, to satisfy the element of identifiability, it must be
shown that at least a third person or a stranger was able to identify him as the
object of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal
Code provides:
Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or
security duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or
other official proceedings which are not of
confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any
other act performed by public officers in the
exercise of their functions. (citations omitted,
emphasis supplied)

In this case, there is no controversy as to the existence of the three elements. The
respondents name and address were clearly indicated in the article ascribing to him the
questionable practice of shooting the wayward pets of his neighbors. The backlash caused by
the publication of the article was in fact such that stones had been thrown at their house,
breaking several flower pots, and daily and nightly calls compelled him to request a change of
their telephone number.[22] These facts are not contested by the petitioners. What the
petitioners claim is the absence of proof of the fourth element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. - Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions.
The article is not a privileged communication. We first discussed the freedom of speech
and press and assembly vis-a-vis the laws on libel and slander in the groundbreaking case
of US v. Bustos,[23] where we applied the prevailing English and American jurisprudence to the
effect that:
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as the individual is less than the State, so must
expected criticism be born for the common good? Rising superior to any
official, or set of officials, to the Chief Executive, to the Legislature, to the
Judiciary - to any or all the agencies of Government - public opinion should be
the constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly
administration of government inevitably lead to the adoption of the doctrine of privileged
communication. A privileged communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are not actionable even if the
author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution
which exempts a member of Congress from liability for any speech or debate in the Congress
or in any Committee thereof. Upon the other hand, qualifiedly privileged communications
containing defamatory imputations are not actionable unless found to have been made without
good intention or justifiable motive. To this genre belong private communications and fair and
true report without any comments or remarks.[24]
The appellate court correctly ruled that the petitioners story is not privileged in
character, for it is neither private communication nor a fair and true report without any
comments or remarks.
 Neither is the news item a fair and true report without any comments or remarks of any

judicial, legislative or other official proceedings; there is in fact no proceeding to speak of. Nor
US v. Bustos defined the concept of private communication thus: Acommunication
is the article related to any act performed by public officers in the exercise of their functions,
made bona fide upon any subject-matter in which the party communicating has an interest, or
for it concerns only false imputations against Thoenen, a private individual seeking a quiet life.
in reference to which he has a duty, is privileged, if made to a person having a corresponding

interest or duty, although it contained criminatory matter which without this privilege would be

slanderous and actionable. A pertinent illustration of the application of qualified privilege is a

The petitioners also claim to have made the report out of a social and moral duty to
complaint made in good faith and without malice in regard to the character or conduct of
inform the public on matters of general interest.
a public official when addressed to an officer or a board having some interest or duty in the

matter.[25]

In Borjal v. Court of Appeals, we stated that the enumeration under Art. 354 is not an

exclusive list of qualifiedly privileged communications since fair commentaries on matters of

This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:
public interest are likewise privileged. We stated that the doctrine of fair commentaries means
As a rule, it is the right and duty of a citizen to make a complaint of
any misconduct on the part of public officials, which comes to his notice, to that while in general every discreditable imputation publicly made is deemed false, because
those charged with supervision over them. Such a communication is qualifiedly every man is presumed innocent until his guilt is judicially proved, and every false imputation
privileged and the author is not guilty of libel. The rule on privilege, however,
imposes an additional requirement. Such complaints should be is deemed malicious, nevertheless, when the discreditable imputation is directed against a
addressed solely to some official having jurisdiction to inquire into the charges,
public person in his public capacity, it is not necessarily actionable. In order that such
or power to redress the grievance or has some duty to perform or interest in
connection therewith. (emphasis supplied) discreditable imputation to a public official may be actionable, it must either be a false allegation

of fact or a comment based on a false supposition. [28]

In the instant case, even if we assume that the letter written by the spurious Atty.

Angara is privileged communication, it lost its character as such when the matter was published
Again, this argument is unavailing to the petitioners. As we said, the respondent is a
in the newspaper and circulated among the general population. A written letter containing
private individual, and not a public official or public figure. We are persuaded by the reasoning
libelous matter cannot be classified as privileged when it is published and circulated in
of the United States Supreme Court in Gertz v. Robert Welch, Inc.,[29] that a newspaper or
public,[27] which was what the petitioners did in this case.
broadcaster publishing defamatory falsehoods about an individual who is neither a public

official nor a public figure may not claim a constitutional privilege against liability, for injury

inflicted, even if the falsehood arose in a discussion of public interest.[30]

 Although it has been stressed that a newspaper should not be held to account to a

point of suppression for honest mistakes, or imperfection in the choice of words,[32] even the
Having established that the article cannot be considered as privileged communication,
most liberal view of free speech has never countenanced the publication of falsehoods,
malice is therefore presumed, and the fourth requisite for the imputation of libel to attach to the
especially the persistent and unmitigated dissemination of patent lies. [33] There is no
petitioners in this case is met. The news article is therefore defamatory and is not within the
constitutional value in false statements of fact. Neither the intentional lie nor the careless error
realm of protected speech. There is no longer a need to discuss the other assignment of errors,
materially advances societys interest in uninhibited, robust, and wide-open debate.[34] The use
save for the amount of damages to which respondent is entitled.
of the known lie as a tool is at once at odds with the premises of democratic government and

with the orderly manner in which economic, social, or political change is to be effected.

In Policarpio v. Manila Times Publishing Co., Inc.,[31] we awarded damages where the Calculated falsehood falls into that class of utterances which are no essential part of any

defendants deliberately presented a private individual in a worse light that what she actually exposition of ideas, and are of such slight social value as a step to truth that any benefit that

was, and where other factual errors were not prevented although defendants had the means may be derived from them is clearly outweighed by the social interest in order and morality The

to ascertain the veracity of their report. Such are the facts obtaining here. knowingly false statement and the false statement made with reckless disregard of the truth,

do not enjoy constitutional protection (citations omitted).[35]

We must point out that Lees brief news item contained falsehoods on two levels. On

its face, her statement that residents of BF Homes had asked the Bureau of Immigration to The legitimate state interest underlying the law of libel is the compensation of the

deport a Swiss who allegedly shoots neighbors pets is patently untrue since the letter of the individuals for the harm inflicted upon them by defamatory falsehood. After all, the individuals

spurious Atty. Angara was a mere request for verification of Thoenens status as a foreign right to protection of his own good name reflects no more than our basic concept of the essential

resident. Lees article, moreover, is also untrue, in that the events she reported never happened. dignity and worth of every human being a concept at the root of any decent system of ordered

The respondent had never shot any of his neighbors pets, no complaints had been lodged liberty.[36]

against him by his neighbors, and no deportation proceedings had been initiated against him.

Worse, the author of Lees main source of information, Atty. Efren Angara, apparently either
The appellate court awarded Thoenen moral damages of P200,000.00, exemplary
does not exist, or is not a lawyer. Petitioner Lee would have been enlightened on substantially
damages of P50,000.00 and legal fees of P30,000.00, to be borne jointly and severally by the
all these matters had she but tried to contact either Angara or Thoenen.
herein petitioners. In Guevarra v. Almario,[37] we noted that the damages in a libel case must

depend upon the facts of the particular case and the sound discretion of the court, although
appellate courts were more likely to reduce damages for libel than to increase them.[38] So it is

in this case.

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the

Decision of the Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby

AFFIRMED, subject to the modification that petitioners are ordered to pay, jointly and severally,

moral damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees

of P20,000.00. No costs.

SO ORDERED.

THIRD DIVISION
G.R. No. 159751 December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796,
which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in
Criminal Case No. 99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article
2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and
sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision
correccional, and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the Philippine
National Police Criminal Investigation and Detection Group in the National Capital Region
(PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio
E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional
Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article
201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain
Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at
564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following
items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
d. Copies of VHS tapes containing pornographic shows.3
On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy
Estorninos, who, according to the prosecution, introduced himself as the store attendant of
Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes
and ten (10) different magazines, which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information
which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did
then and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or
immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner
Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene
copies of x-rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating (sic) positions
which acts serve no other purpose but to satisfy the market for lust or pornography to
public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged.
Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and presented the following
witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay
Chairperson Socorro Lipana, who were all present during the raid. After the prosecution
presented its evidence, the counsel for the accused moved for leave of court to file a
demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied
the demurrer to evidence and scheduled the reception of evidence for the accused. A motion
for reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and instead submitted the
case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein
petitioners as follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO
FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the
crime charged and are hereby sentenced to suffer the indeterminate penalty of
FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision
correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY
beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case are
hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the
decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the decision
appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was not
present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing anything
illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’
conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search, they
were selling pornographic materials. Fernando contends that since he was not charged as
the owner of an establishment selling obscene materials, the prosecution must prove that he
was present during the raid and that he was selling the said materials. Moreover, he
contends that the appellate court’s reason for convicting him, on a presumption of continuing
ownership shown by an expired mayor’s permit, has no sufficient basis since the prosecution
failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that
he was not an attendant in Music Fair, nor did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene publications
are expressly held liable under Article 201, and petitioner Fernando’s ownership was
sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally
a seller of the prohibited materials and liable under the Information. The Solicitor General
also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the
store attendant, thus he was likewise liable.10
At the outset, we note that the trial court gave petitionersthem the opportunity to adduce
present their evidence to disprove refute the prosecution’s evidence.11 . Instead, they waived
their right to present evidence and opted to submitted the case for decision.a1 12 The trial
court therefore resolved the case on the basis of prosecution’s evidence against the
petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the State in
pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and
indecent materials must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the
prosecution must prove that (a) the materials, publication, picture or literature are obscene;
and (b) the offender sold, exhibited, published or gave away such materials. 13 Necessarily,
that the confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity in People v.
Kottinger.14 There the Court defined obscenity as something which is offensive to chastity,
decency or delicacy. The test to determine the existence of obscenity is, whether the
tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are
open to such immoral influences and into whose hands a publication or other article charged
as being obscene may fall.15 Another test according to Kottinger is "that which shocks the
ordinary and common sense of men as an indecency."16 But, Kottinger hastened to say that
whether a picture is obscene or indecent must depend upon the circumstances of the case,
and that ultimately, the question is to be decided by the judgment of the aggregate sense of
the community reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to
clearly draw the fine lines of obscenity.
In People v. Go Pin, the Court said:
 If such pictures, sculptures and paintings are shown in art exhibits and art galleries
for the cause of art, to be viewed and appreciated by people interested in art, there
would be no offense committed. However, the pictures here in question were used
not exactly for art’s sake but rather for commercial purposes. In other words, the
supposed artistic qualities of said pictures were being commercialized so that the
cause of art was of secondary or minor importance. Gain and profit would appear to
have been the main, if not the exclusive consideration in their exhibition; and it would
not be surprising if the persons who went to see those pictures and paid entrance
fees for the privilege of doing so, were not exactly artists and persons interested in
art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste,
and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its
own test of "redeeming feature." The Court therein said that:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have
no redeeming feature. In it, there is no room for art. One can see nothing in it but
clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land.21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion
pictures, still applied the "contemporary community standards" of Kottinger but departed from
the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in
terms of the "dominant theme" of the material taken as a "whole" rather than in isolated
passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court
recognized that Kottinger failed to afford a conclusive definition of obscenity, and that
both Go Pin and Padan y Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or
that if they find inspiration in the exhibitions, whether such exhibitions cease to be
obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which
has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or
what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the
matter. Significantly, the dynamism of human civilization does not help at all. It is evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization.25 It seems futile at this point to formulate a perfect definition of
obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value. 26 But, it would be
a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive."27 No one will be subject to prosecution for the sale or
exposure of obscene materials unless these materials depict or describe patently offensive
"hard core" sexual conduct.28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently
offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judge’s sound
discretion.
In this case, the trial court found the confiscated materials obscene and the Court of Appeals
affirmed such findings. The trial court in ruling that the confiscated materials are obscene,
reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team obscene or
offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing in the nine
(9) confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave,
Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made
and shown not for the sake of art but rather for commercial purposes, that is gain and
profit as the exclusive consideration in their exhibition. The pictures in the magazine
exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in
their magazines is but a clear and unmitigated obscenity, indecency and an offense
to public morals, inspiring…lust and lewdness, exerting a corrupting influence
especially on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual intercourse.
The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows
the naked body of the actress. The tape exhibited indecent and immoral scenes and
acts. Her dancing movements excited the sexual instinct of her male audience. The
motive may be innocent, but the performance was revolting and shocking to good
minds...
In one (1) case the Supreme Court ruled:
 Since the persons who went to see those pictures and paid entrance fees
were usually not artists or persons interested in art to satisfy and inspire their
artistic tastes but persons who are desirous of satisfying their morbid
curiosity, taste and lust and for [love] of excitement, including the youth who
because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of the pictures, the display of
such pictures for commercial purposes is a violation of Art. 201. If those
pictures were shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no
offense committed (People vs. Go Pin, 97 Phil 418).
on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their
findings.38 In our view, no reversible error was committed by the appellate court as well as the
trial court in finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2,
2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila,
Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.

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

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

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

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

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

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and
exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the
PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom
the search warrant was served.37 Tababan had no motive for testifying falsely against
Estorninos and we uphold the presumption of regularity in the performance of his duties.
Lastly, this Court accords great respect to and treats with finality the findings of the trial court
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31687 February 26, 1970
NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.
RESOLUTION
GENTLEMEN:
Quoted hereunder, for your information, is a resolution of this Court of even date:
"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings
and arguments of the parties, issued the following Resolution:
Without prejudice to a more extended opinion and taking into account the following
considerations:
That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;
That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable
discretion to determine or specify the streets or public places to be used for the assembly in
order to secure convenient use thereof by others and provide adequate and proper policing to
minimize the risks of disorder and maintain public safety and order;
That respondent Mayor has expressly stated his willingness to grant permits for peaceful
assemblies at Plaza Miranda during Saturdays, Sundays and holidays when they would not
cause unnecessarily great disruption of the normal activities of the community and has further
offered Sunken Gardens as an alternative to Plaza Miranda as the site of the demonstration
sought to be held this afternoon;
That experiences in connection with present assemblies and demonstrations do not warrant
the Court's disbelieving respondent Mayor's appraisal that a public rally at Plaza Miranda, as
compared to one at the Sunken Gardens as he suggested, poses a clearer and more
imminent danger of public disorders, breaches of the peace, criminal acts, and even
bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no
means of preventing such disorders;
That, consequently, every time that such assemblies are announced, the community is
placed in such a state of fear and tension that offices are closed early and employees
dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the
general detriment of the public:
That civil rights and liberties can exist and be preserved only in an order society;
The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor
to grant their application for permit unconditionally;
The Court resolved to DENY the writ prayed for and to dismiss the petition.
Separate Opinions
VILLAMOR, J., concurring:
The right to freedom of assembly is not denied; but this right is neither unlimited nor absolute.
It is not correct to say that the Mayor has refused to grant the permit applied for; he offered
an alternative which, in my opinion, is not unreasonable. There being no arbitrary refusal to
grant permit, petitioner is not entitled to the writ.
CASTRO and FERNANDO, JJ., dissenting:
Two members of the Court, Castro and Fernando, find themselves unable to concur with their
brethren and would vote to grant the petition. The right to freedom of assembly while not
unlimited is entitled to be accorded the utmost deference and respect. If respondent Mayor
premised his refusal to grant the permit as sought by petitioner on a clear showing that he
was so empowered under the criteria supplied by Primicias W. Fugoso, then this petition
should not prosper as petitioner himself did invoke such authority. The grounds for his refusal
are however, set forth thus in his letter of February 24, 1970 addressed to petitioner: "In the
greater interest of the general public, and in order not to unduly disturb the life of the
community, this Office, guided by a lesson gained from the events of the past few weeks, has
temporarily adopted the policy of not issuing any permit for the use of Plaza Miranda for
rallies or demonstrations during week days."1 They do not, in the opinion of the above two
justices, meet the standard of the Primicias ruling. Under the circumstances, the effect is one
of prior restraint of a constitutional right. This is not allowable. An excerpt from a 1969
American Supreme Court decision is persuasive. Thus: "For in deciding whether or not to
withhold a permit, the members of the Commission were to be guided only by their own ideas
of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' This
ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of
this Court over the last 30 years, holding that a law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license, without narrow, objective, and
definite standards to guide the licensing authority, is unconstitutional."2 This is without
prejudice to a more extended opinion being written later.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to
delineate the boundaries of the protected area of the cognate rights to free speech and
peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing.
Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit
from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to
5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States
Embassy, hardly two blocks away. Once there, and in an open space of public property, a
short program would be held. 2 During the course of the oral argument, 3 it was stated that
after the delivery of two brief speeches, a petition based on the resolution adopted on the last
day by the International Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to a representative
of the Embassy or any of its personnel who may be there so that it may be delivered to the
United States Ambassador. The march would be attended by the local and foreign
participants of such conference. There was likewise an assurance in the petition that in the
exercise of the constitutional rights to free speech and assembly, all the necessary steps
would be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not
been informed of any action taken on his request on behalf of the organization to hold a rally.
On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant
Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was
denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The
reason for refusing a permit was due to police intelligence reports which strongly militate
against the advisability of issuing such permit at this time and at the place applied for." 6 To
be more specific, reference was made to persistent intelligence reports affirm[ing] the plans
of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations
where a large number of people is expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the police authorities, that "a permit may
be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed.
The Court then deliberated on the matter. That same afternoon, a minute resolution was
issued by the Court granting the mandatory injunction prayed for on the ground that there
was no showing of the existence of a clear and present danger of a substantive evil that
could justify the denial of a permit. On this point, the Court was unanimous, but there was a
dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such
minute resolution reads: "This resolution is without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or
punishment. 11 There is to be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the
right people to meet peaceably for consultation and discussion of matters Of public
concern.17 It is entitled to be accorded the utmost deference and respect. It is hot to be
limited, much less denied, except on a showing, as 's the case with freedom of expression, of
a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even
prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free speech. 19 To
paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme
Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of
speech and of the press were toupled in a single guarantee with the and to petition the rights
of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every case, therefo re
there is a limitation placed on the exercise of this right, the judiciary is called upon to examine
the effects of the challenged governmental actuation. The sole justification for a limitation on
the exercise of this right, so fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly
better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be
forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and explosions due to
restrictions upon rational modes of communication that the guaranty of free speech was
given a generous scope. But utterance in a context of violence can lose its significance as an
appeal to reason and become part of an instrument of force. Such utterance was not meant
to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of
reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For
if the peaceful means of communication cannot be availed of, resort to non-peaceful means
may be the only alternative. Nor is this the sole reason for the expression of dissent. It means
more than just the right to be heard of the person who feels aggrieved or who is dissatisfied
with things as they are. Its value may lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course,
well-defined limits. What is guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled
out and outbreaks of violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise, United States v.
Apurado: 23 "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." 24 It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a
1915 decision, where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a promenade for public
use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no
valid reason why a permit should not be granted for the or oposed march and rally starting
from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US
Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L.
chap. 145, section 2, providing that 'no parade or procession upon any ground abutting
thereon, shall 'De permitted unless a special license therefor shall first be explained 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, ... " 30 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." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as
noted, would have arisen. So, too, if the march would end at another park. As previously
mentioned though, there would be a short program upon reaching the public space between
the two gates of the United States Embassy at Roxas Boulevard. That would be followed by
the handing over of a petition based on the resolution adopted at the closing session of the
Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965
and the instrument of ratification was signed by the President on October 11, 1965, and was
thereafter deposited with the Secretary General of the United Nations on November 15. As of
that date then, it was binding on the Philippines. The second paragraph of the Article 22
reads: "2. The receiving State is under a special duty to take appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the
extent that the Vienna Convention is a restatement of the generally accepted principles of
international law, it should be a part of the law of the land. 34 That being the case, if there
were a clear and present danger of any intrusion or damage, or disturbance of the peace of
the mission, or impairment of its dignity, there would be a justification for the denial of the
permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor
relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies
or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its
invocation as a defense is understandable but not decisive, in view of the primacy accorded
the constitutional rights of free speech and peaceable assembly. Even if shown then to be
applicable, that question the confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the
judgment must be confined within the limits of previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the
afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting
the mandatory injunction allowing the proposed march and rally scheduled for the next day.
That conclusion was inevitable ill the absence of a clear and present danger of a substantive,
evil to a legitimate public interest. There was no justification then to deny the exercise of the
constitutional rights of tree speech and peaceable assembly. These rights are assured by our
Constitution and the Universal Declaration of Human Rights. 35 The participants to such
assembly, composed primarily of those in attendance at the International Conference for
General Disbarmament, World Peace and the Removal of All Foreign Military Bases would
start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether an individual or a group. If it were, then the
freedom of access becomes discriminatory access, giving rise to an equal protection
question. The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices under which the meeting is held but as to its
purpose; not as to The relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects." 36 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." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v.
Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for
application. While the General rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of their choice, another place may be
designated by the licensing authority if it be shown that there is a clear and present danger of
a substantive evil if no such change were made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the clear and present danger test was satisfied. The
present situation is quite different. Hence the decision reached by the Court. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not
that it should be overlooked. There was in this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the
police force is in a position to cope with such emergency should it arise That is to comply with
its duty to extend protection to the participants of such peaceable assembly. Also from him
came the commendable admission that there were the least five previous demonstrations at
the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no
untoward event occurred. It was made clear by petitioner, through counsel, that no act
offensive to the dignity of the United States Mission in the Philippines would take place and
that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it
'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed
the view that the presence of policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever ready and alert to cope with any
contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in
Cox that precisely, it is the duty of the city authorities to provide the proper police protection
to those exercising their right to peaceable assembly and freedom of expression.
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, then, 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.
Clearly then, to the extent that there may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original
resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be
admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a
condition is satisfied. it does not follow that respondent Mayor could legally act the way he
did. The validity of his denial of the permit sought could still be challenged. It could be argued
that a case of unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that the distance is
less than 500 feet, the need to pass on that issue was obviated, Should it come, then the
qualification and observation of Justices Makasiar and Plana certainly cannot be summarily
brushed aside. The high estate accorded the rights to free speech and peaceable assembly
demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the
modification of the permit sought and order the respondent official, to grant it. Nonetheless,
as there was urgency in this case, the proposed march and rally being scheduled for the next
day after the hearing, this Court. in the exercise of its conceded authority, granted the
mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful
character of the peace march and rally on October 26 was not marred by any untoward
incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that
both on the part of the national government and the citizens, reason and moderation have
prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-62270 May 21, 1984
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO,
and JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the
National Capital Region of the Ministry of Education, Culture and Sports, THE
GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity
as the President of the Gregorio Araneta University Foundation, GONZALO DEL
ROSARIO, in his capacity as the Director for Academic Affairs of the Gregorio Araneta
University Foundation; TOMAS B. MESINA, in his capacity as the Dean of Student
Affairs of the Gregorio Araneta University Foundation; ATTY. LEONARDO PADILLA, in
his capacity as Chief Legal Counsel & Security Supervisor of the Gregorio Araneta
University Foundation; ATTY. FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA
TAYAO, in their capacities as members of the Ad Hoc Committee of the Gregorio
Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom of peaceable assembly
and free speech is the grievance alleged by petitioners, students of the Gregorio Araneta
University Foundation, in this certiorari, prohibition and mandamus proceeding. The principal
respondents are Anastacio D. Ramento, Director of the National Capital Region of the
Ministry of Education, Culture and Sports and the Gregorio Araneta University
Foundation. 1 The nullification of the decision of respondent Ramento affirming the action
taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of
illegal assembly and suspending them is sought in this petition.
The facts are not open to dispute. Petitioners were officers of the Supreme Student Council
of respondent University. They sought and were granted by tile school authorities a permit to
hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit,
along with other students, they held a general assembly at the Veterinary Medicine and
Animal Science basketball court (VMAS), the place indicated in such permit, not in the
basketball court as therein stated but at the second floor lobby. At such gathering they
manifested in vehement and vigorous language their opposition to the proposed merger of
the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day,
they marched toward the Life Science Building and continued their rally. It was outside the
area covered by their permit. They continued their demonstration, giving utterance to
language severely critical of the University authorities and using megaphones in the process.
There was, as a result, disturbance of the classes being held. Also, the non-academic
employees, within hearing distance, stopped their work because of the noise created. They
were asked to explain on the same day why they should not be held liable for holding an
illegal assembly. Then on September 9, 1982, they were formed through a memorandum that
they were under preventive suspension for their failure to explain the holding of an illegal
assembly in front of the Life Science Building. The validity thereof was challenged by
petitioners both before the Court of First Instance of Rizal in a petition for mandamus with
damages against private respondents 2 and before the Ministry of Education, Culture, and
Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital
Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for
Private Schools more specifically their holding of an illegal assembly which was characterized
by the violation of the permit granted resulting in the disturbance of classes and oral
defamation. The penalty was suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-
parte motion for the immediate issuance of a temporary mandatory order filed by counsel for
petitioners, dated November 12, 1982, the Court Resolved to ISSUE A TEMPORARY
RESTRAINING ORDER enjoining all respondents or any person or persons acting in their
place or stead from enforcing the order of the Ministry of' Education and Culture dated
October 20, 1982 finding the petitioners guilty of the charges against them and suspending
them for one (1) academic year with a stern warning that a commission of the same or
another offense will be dealt with utmost severity, effective as of this date and continuing until
otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private respondents prayed
for the dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the
lifting of the temporary restraining order dated November 16, 1982." 4 Public respondent
Ramento, on the other hand, through the Office of the Solicitor General, prayed for the
dismissal of the petition based on the following conclusion: "Consequently, it is respectfully
submitted that respondent Director of the MECS did not commit any error, much less abused
his discretion, when he affirmed the decision of respondent University finding petitioners
guilty of violations of the provisions of the Manual of Regulations for Private Schools and the
Revised Student's Code of Discipline .and ordering their suspension for one (1) academic
school year. However, since said suspension has not been enforced except only briefly,
thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and
allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this
proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private
respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely from the fact that by
virtue of the temporary restraining order issued by this Court petitioners were allowed to
enroll in the ensuing semester, with three of them doing so and with the other two equally
entitled to do so. Moreover, there is the added circumstance of more than a year having
passed since October 20, 1982 when respondent Ramento issued the challenged decision
suspending them for one year. Nonetheless, with its validity having been put in issue, for
being violative of the constitutional rights of freedom of peaceable assembly and free speech,
there is need to pass squarely on the question raised.
This Court accordingly rules that respect for the constitutional rights of peaceable assembly
and free speech calls for the setting aside of the decision of respondent Ramento, the penalty
imposed being unduly severe. It is true that petitioners held the rally at a place other than that
specified in the permit and continued it longer than the time allowed. Undeniably too, they did
disturb the classes and caused the work of the non-academic personnel to be left undone.
Such undesirable consequence could have been avoided by their holding the assembly in the
basketball court as indicated in the permit. Nonetheless, suspending them for one year is out
of proportion to their misdeed. The petition must be granted and the decision of respondent
Ramento nullified, a much lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to
freedom of peaceable assembly carries with it the implication that the right to free speech has
likewise been disregarded. Both are embraced in the concept of freedom of expression which
is Identified with the liberty to discuss publicly and truthfully, any matter of public interest
without censorship or punishment and which "is not to be limited, much less denied, except
on a showing ... of a clear and present danger of a substantive evil that the state has a right
to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta
public park to the gates of the united States Embassy, hardly two blocks away, where in an
open space of public property, a short program would be held. Necessarily then, the question
of the use of a public park and of the streets leading to the United States Embassy was
before this Court. We held that streets and parks have immemorially been held in trust for the
use of the public and have been used for purposes of assembly to communicate thoughts
between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a public place but in
private premises, property of respondent University. There is in the Reyes opinion as part of
the summary this relevant excerpt: "The applicants for a permit to hold an assembly should
inform the licensing authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one entitled to its legal
possession is required." 9 Petitioners did seek such consent. It was granted. According to the
petition: "On August 27, 1982, by virtue of a permit granted to them by the school
administration, the Supreme Student Council where your petitioners are among the officers,
held a General Assembly at the VMAS basketball court of the respondent
university." 10 There was an express admission in the Comment of private respondent
University as to a permit having been granted for petitioners to hold a student
assembly. 11 The specific question to be resolved then is whether on the facts as disclosed
resulting in the disciplinary action and the penalty imposed, there was an infringement of the
right to peaceable assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to
do so. They enjoy like the rest of the citizens the freedom to express their views and
communicate their thoughts to those disposed to listen in gatherings such as was held in this
case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines
Community School District, 12 "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." 13While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it cannot go so far as to be
violative of constitutional safeguards. On a more specific level there is persuasive force to
this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is
to accommodate students during prescribed hours for the purpose of certain types of
activities. Among those activities is personal intercommunication among the students. This is
not only an inevitable part of the process of attending school; it is also an important part of
the educational process. A student's rights, therefore, do not embrace merely the classroom
hours. When he is in the cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the
requirements of appropriate discipline in the operation of the school' and without colliding with
the rights of others. ... But conduct by the student, in class or out of it, which for any reason
— whether it stems from time, place, or type of behavior — materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course, not immunized
by the constitutional guarantee of freedom of speech." 14
5. As tested by such a standard, what is the verdict on the complaint of petitioners that there
was a disregard of their constitutional rights to peaceable assembly and free speech. It must
be in their favor, but subject to qualification in view of their continuing their demonstration in a
place other than that specified in the permit for a longer period and their making use of
megaphones therein, resulting in the disruption of classes and the stoppage of work by the
non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the speeches by the student
leaders. That there would be a vigorous presentation of views opposed to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture was to be expected.
There was no concealment of the fact that they were against such a move as it confronted
them with a serious problem (iisang malaking suliranin.") 15 They believed that such a
merger would result in the increase in tuition fees, an additional headache for their parents
("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such
demonstration, with an enthusiastic audience goading them on, utterances, extremely critical,
at times even vitriolic, were let loose, that is quite understandable. Student leaders are hardly
the timid, diffident types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious language of the academe.
At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery
exhortations. They take into account the excitement of the occasion, the propensity of
speakers to exaggerate, the exuberance of youth, They may give the speakers the benefit of
their applause, but with the activity taking place in the school premises and during the
daytime, no clear and present danger of public disorder is discernible. This is without
prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves substantial disorder or invasion of the rights of
others."
7. Nor is this a novel approach to the issue raised by petitioners that they were denied the
right to peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts
disclosed that shortly before the municipal council of San Carlos, Occidental Negros, started
its session, some five hundred residents of the municipality assembled near the municipal
building, and, upon the opening of the session, a substantial number of such persons barged
into the council chamber, demanding that the municipal treasurer, the municipal secretary,
and the chief of police be dismissed, submitting at the same time the proposed substitutes.
The municipal council gave its conformity. Such individuals were wholly unarmed except that
a few carried canes; the crowd was fairly orderly and well-behaved except in so far as their
pressing into the council chamber during a session of that body could be called disorder and
misbehavior. It turned out that the movement had its origin in religious differences. The
defendant Filomeno Apurado and many other participants were indicted and convicted of
sedition in that they allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion,
correctly pointed out that "if the prosecution be permitted to seize upon every instance of
such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the most peaceable manner
would expose all those who took part therein to the severest form of punishment, if the
purposes which they sought to attain did not happen to be pleasing to the prosecuting
authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly
conduct occur on such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line between disorderly
and seditious conduct and between an essentially peaceable assembly and a tumultuous
uprising." 19 A careful reading of this decision is in order before private respondents attach,
as they did in their comments, a subversive character to the rally held by the students under
the leadership of petitioners.
8. It does not follow, however, that petitioners can be totally absolved for the events that
transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a
place other than that specified, in the second floor lobby, rather than the basketball court, of
the VMAS building of the University. Moreover, it was continued longer than the period
allowed. According to the decision of respondent Ramento, the "concerted activity [referring
to such assembly] went on until 5:30 p. m. 20 Private respondents could thus, take disciplinary
action. On those facts, however, an admonition, even a censure-certainly not a suspension-
could be the appropriate penalty. Private respondents could and did take umbrage at the fact
that in view of such infraction considering the places where and the time when the
demonstration took place-there was a disruption of the classes and stoppage of work of the
non-academic personnel. They would not be unjustified then if they did take a much more
serious view of the matter. Even then a one-year period of suspension is much too severe.
While the discretion of both respondent University and respondent Ramento is recognized,
the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of
proportionality between the offense connoted and the sanction imposed is not followed, an
element of arbitrariness intrudes. That would give rise to a due process question. To avoid
this constitutional objection, it is the holding of this Court that a one-week suspension would
be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust administrative
remedies. That is true, but hardly decisive. Here, a purely legal question is presented. Such
being the case, especially so where a decision on a question of law is imperatively called for,
and time being of the essence, this Court has invariably viewed the issue as ripe for
adjudication. What cannot be too sufficiently stressed is that the constitutional rights to
peaceable assembly and free speech are invoked by petitioners. Moreover, there was, and
very likely there will continue to be in the future, militancy and assertiveness of students on
issues that they consider of great importance, whether concerning their welfare or the general
public. That they have a right to do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for
this Court to lay down the principles for the guidance of school authorities and students alike.
The rights to peaceable assembly and free speech are guaranteed students of educational
institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving
public interest is not to be subjected to previous restraint or subsequent punishment unless
there be a showing of a clear and present danger to a substantive evil that the state, has a
right to present. As a corollary, the utmost leeway and scope is accorded the content of the
placards displayed or utterances made. The peaceable character of an assembly could be
lost, however, by an advocacy of disorder under the name of dissent, whatever grievances
that may be aired being susceptible to correction through the ways of the law. If the assembly
is to be held in school premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit,
there may be conditions as to the time and place of the assembly to avoid disruption of
classes or stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to the offense.
WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent
Ramento imposing a one-year suspension is nullified and set aside. The temporary
restraining order issued by this Court in the resolution of November 18, 1982 is made
permanent. As of that date, petitioners had been suspended for more than a week. In that
sense, the one-week penalty had been served. No costs.

EN BANC
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United
Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY
DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and
SENATOR FRANCISCO TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of
Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO
B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and
RODOLFO G. BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose
Aguila Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the
Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign
Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA,
ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A.
AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION
IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed
attack on their territory, armed forces, public vessels, and aircraft. 1
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines.2 With the expiration of the RP-US Military
Bases Agreement, the periodic military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on "the complementing
strategic interests of the United States and the Philippines in the Asia-Pacific region." Both
sides discussed, among other things, the possible elements of the Visiting Forces Agreement
(VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text,
which in turn resulted to a final series of conferences and negotiations 3 that culminated in
Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the
VFA, which was respectively signed by public respondent Secretary Siazon and Unites
States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA.4
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification,
the letter of the President6 and the VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees.7
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
4438 recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a
two-thirds (2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.10
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military members of the United
States Army, Navy, Marine Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to individuals who are neither
nationals of, nor ordinary residents in the Philippines and who are employed
by the United States armed forces or who are accompanying the United
States armed forces, such as employees of the American Red Cross and the
United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and,
in particular, from any political activity in the Philippines. The Government of the United
States shall take all measures within its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
"2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
"3. The following documents only, which shall be presented on demand, shall
be required in respect of United States military personnel who enter the
Philippines:
"(a) personal identity card issued by the appropriate United States
authority showing full name, date of birth, rank or grade and service
number (if any), branch of service and photograph;
"(b) individual or collective document issued by the appropriate
United States authority, authorizing the travel or visit and identifying
the individual or group as United States military personnel; and
"(c) the commanding officer of a military aircraft or vessel shall
present a declaration of health, and when required by the cognizant
representative of the Government of the Philippines, shall conduct a
quarantine inspection and will certify that the aircraft or vessel is free
from quarantinable diseases. Any quarantine inspection of United
States aircraft or United States vessels or cargoes thereon shall be
conducted by the United States commanding officer in accordance
with the international health regulations as promulgated by the World
Health Organization, and mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa requirements
but shall present, upon demand, valid passports upon entry and departure of
the Philippines.
"5. If the Government of the Philippines has requested the removal of any
United States personnel from its territory, the United States authorities shall
be responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without test or fee, a driving
permit or license issued by the appropriate United States authority to United
States personnel for the operation of military or official vehicles.
"2. Vehicles owned by the Government of the United States need not be
registered, but shall have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel
with respect to offenses committed within the Philippines and punishable
under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the
Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the Philippines, punishable
under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United
States personnel with respect to offenses, including offenses relating to the
security of the United States, punishable under the laws of the United States,
but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an
offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national
defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction
over all offenses committed by United States personnel, except in cases
provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the
United States in relation to.
(1) offenses solely against the property or security of the United
States or offenses solely against the property or person of United
States personnel; and
(2) offenses arising out of any act or omission done in performance
of official duty.
(c) The authorities of either government may request the authorities
of the other government to waive their primary right to exercise
jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military
authorities to maintain good order and discipline among their forces,
Philippine authorities will, upon request by the United States, waive
their primary right to exercise jurisdiction except in cases of particular
importance to the Philippines. If the Government of the Philippines
determines that the case is of particular importance, it shall
communicate such determination to the United States authorities
within twenty (20) days after the Philippine authorities receive the
United States request.
(e) When the United States military commander determines that an
offense charged by authorities of the Philippines against United
states personnel arises out of an act or omission done in the
performance of official duty, the commander will issue a certificate
setting forth such determination. This certificate will be transmitted to
the appropriate authorities of the Philippines and will constitute
sufficient proof of performance of official duty for the purposes of
paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the
case require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities
shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action
against offenders in official duty cases, and notify the Government of
the Philippines of the actions taken.
(f) If the government having the primary right does not exercise
jurisdiction, it shall notify the authorities of the other government as
soon as possible.
(g) The authorities of the Philippines and the United States shall
notify each other of the disposition of all cases in which both the
authorities of the Philippines and the United States have the right to
exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the Philippines and United
States shall assist each other in the arrest of United States personnel in the Philippines and
in handling them over to authorities who are to exercise jurisdiction in accordance with the
provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United States military authorities of the
arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph. The one-year period
will not include the time necessary to appeal. Also, the one-year period will not include any
time during which scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the delivery of objects connected with an
offense.
"8. When United States personnel have been tried in accordance with the provisions of this
Article and have been acquitted or have been convicted and are serving, or have served their
sentence, or have had their sentence remitted or suspended, or have been pardoned, they
may not be tried again for the same offense in the Philippines. Nothing in this paragraph,
however, shall prevent United States military authorities from trying United States personnel
for any violation of rules of discipline arising from the act or omission which constituted an
offense for which they were tried by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the
law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
 (b) To be informed in advance of trial of the specific charge or charges made
against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United
States authorities, and to have such authorities present at all judicial
proceedings. These proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who have no role in the
proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines shall have the right to visits and
material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States foreign
military sales letters of offer and acceptance and leases of military
equipment, both governments waive any and all claims against each other
for damage, loss or destruction to property of each other’s armed forces or
for death or injury to their military and civilian personnel arising from activities
to which this agreement applies.
"2. For claims against the United States, other than contractual claims and
those to which paragraph 1 applies, the United States Government, in
accordance with United States law regarding foreign claims, will pay just and
reasonable compensation in settlement of meritorious claims for damage,
loss, personal injury or death, caused by acts or omissions of United States
personnel, or otherwise incident to the non-combat activities of the United
States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and other
property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States,
which may remove such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. The exemptions provided in
this paragraph shall also extend to any duty, tax, or other similar charges
which would otherwise be assessed upon such property after importation
into, or acquisition within, the Philippines. Such property may be removed
from the Philippines, or disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not entitled to exemption
from applicable taxes and duties shall be subject to payment of such taxes,
and duties and prior approval of the Philippine Government.
"2. Reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United States personnel may be imported
into and used in the Philippines free of all duties, taxes and other similar
charges during the period of their temporary stay in the Philippines. Transfers
to persons or entities in the Philippines not entitled to import privileges may
only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The exportation of such property
and of property acquired in the Philippines by United States personnel shall
be free of all Philippine duties, taxes, and other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in
accordance with procedures stipulated in implementing arrangements.
"2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The
movement of vessels shall be in accordance with international custom and
practice governing such vessels, and such agreed implementing
arrangements as necessary.
 "3. Vehicles, vessels, and aircraft operated by or for the United States armed
forces shall not be subject to the payment of landing or port fees, navigation
or over flight charges, or tolls or other use charges, including light and harbor
dues, while in the Philippines. Aircraft operated by or for the United States
armed forces shall observe local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their constitutional
requirements for entry into force. This agreement shall remain in force until the expiration of
180 days from the date on which either party gives the other party notice in writing that it
desires to terminate the agreement."
Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the
VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question
the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII
of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter
have not shown any interest in the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the operation of the
VFA.12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a
matter of transcendental importance which justifies their standing.13
A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not
only that the law is invalid, but also that he has sustained or in is in immediate, or imminent
danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way." He must show that he has been, or is about to be,
denied some right or privilege to which he is lawfully entitled, or that he is about to be
subjected to some burdens or penalties by reason of the statute complained of. 14
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the enforcement
of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise
by Congress of its taxing or spending powers.15 On this point, it bears stressing that a
taxpayer’s suit refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation.16 Thus, in Bugnay Const. &
Development Corp. vs. Laron17 , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real party in interest. Before
he can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is
not sufficient that he has merely a general interest common to all members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present suit.
While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,18 sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on an
item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’ standing
as members of Congress, in the absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its Board of Governors authorizing its
National President to commence the present action.19
Notwithstanding, in view of the paramount importance and the constitutional significance of
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases,20 where we had occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that ‘transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure.’ We have since then applied the exception in many
other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343)." (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza
vs. Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we
emphatically held:
"Considering however the importance to the public of the case at bar, and in keeping with the
Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the
right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others’ acts,25 this Court nevertheless resolves to take cognizance
of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as
the VFA is not a basing arrangement but an agreement which involves merely the temporary
visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State."
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required
to make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence of the Senate to be valid and
effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance
with the constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or
facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national referendum held for that purpose
if so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases
in the negative and thus, are deemed prohibitory in mandate and character. In particular,
Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall
not be allowed." Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in
a limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such cases within its
general language which are not within the provision of the particular enactment. 26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction mandates that general legislation
must give way to a special legislation on the same subject, and generally be so interpreted as
to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs.
de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical
application to a particular case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction between
"transient’ and "permanent". Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to "foreign military bases, troops, or facilities"
collectively but treats them as separate and independent subjects. The use of comma and
the disjunctive word "or" clearly signifies disassociation and independence of one thing from
the others included in the enumeration,28 such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places it under the coverage
of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations
of the 1986 Constitutional Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything."29 (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section
25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified
by a majority of the votes cast by the people in a national referendum; and (c) recognized as
a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
other things, that the treaty-the VFA, in the instant case-be "duly concurred in by the Senate,"
it is very true however that said provision must be related and viewed in light of the clear
mandate embodied in Section 21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to
section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA
in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.30Without a tinge of doubt, two-thirds (2/3) of this figure, or not less
than sixteen (16) members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators at the time the voting was
made,31 will not alter in any significant way the circumstance that more than two-thirds of the
members of the Senate concurred with the proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual members (23). In this regard, the fundamental
law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating
that the VFA is binding on the United States Government is conclusive, on the point that the
VFA is recognized as a treaty by the United States of America. According to respondents, the
VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a treaty.32 To require the
other contracting state, the United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution,33 is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance
thus attached to them prevails. Its language should be understood in the sense they have in
common use.34
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a
treaty.35 To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever
its particular designation."36 There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All
writers, from Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no legal significance.
Certain terms are useful, but they furnish little more than mere description.37
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding
the use of terms in the present Convention are without prejudice to the use of those terms, or
to the meanings which may be given to them in the internal law of the State."
Thus, in international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers.38 International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations. 39
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,40 we had occasion to pronounce:
"x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134;
U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law
Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on
International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V,
pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty."41
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the
terms of the VFA.42 For as long as the united States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence
of the Senate should be taken as a clear an unequivocal expression of our nation’s consent
to be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of
the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.43 A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was expressed
during the negotiation.44
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.45
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,46 declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member
of its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation.47 Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: "Every State has the duty to carry out in
good faith its obligations arising from treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws as an excuse for failure to perform this
duty."48
Equally important is Article 26 of the convention which provides that "Every treaty in force is
binding upon the parties to it and must be performed by them in good faith." This is known as
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been
one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State,
is the sole organ and authority in the external affairs of the country. In many ways, the
President is the chief architect of the nation’s foreign policy; his "dominance in the field of
foreign relations is (then) conceded."51 Wielding vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson describes, is "executive altogether."52
As regards the power to enter into treaties or international agreements, the Constitution vests
the same in the President, subject only to the concurrence of at least two-thirds vote of all the
members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the sphere
of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the VFA and in submitting the
same to the Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in the exercise of his
wide latitude of discretion and in the honest belief that the VFA falls within the ambit of
Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence
under the aforementioned provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to the President in his act of
ratifying the VFA and referring the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing so, the President merely
performed a constitutional task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence
under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the
Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty
of committing an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such as
those relating to national security, it has not altogether done away with political questions
such as those which arise in the field of foreign relations.54 The High Tribunal’s function, as
sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred
or has a different view. In the absence of a showing… (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective
power…It has no power to look into what it thinks is apparent error."55
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner,
be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within the limits of such power, may not be
similarly faulted for having simply performed a task conferred and sanctioned by no less than
the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; 57 the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever action it takes in the exercise
of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In
this sense, the Senate partakes a principal, yet delicate, role in keeping the principles
of separation of powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy
system of checks and balances indispensable toward our nation’s pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom
of a legislative act are beyond the ambit and province of the courts to inquire.

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

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

SO ORDERED.