Constitutional Law II Art.III Sec.

3 and 4 Page |1

Republic of the Philippines CHUCHI — Hindi m'am, pero ilan beses na nila
SUPREME COURT akong binalikan, sabing ganoon —
Manila
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw
FIRST DIVISION kung (sic) mag explain ka, kasi hanggang 10:00
p.m., kinabukasan hindi ka na pumasok. Ngayon
  ako ang babalik sa 'yo, nag-aaply ka sa States,
nag-aaply ka sa review mo, kung kakailanganin
ang certification mo, kalimutan mo na kasi hindi
G.R. No. 93833 September 28, 1995
ka sa akin makakahingi.

SOCORRO D. RAMIREZ, petitioner,  CHUCHI — Hindi M'am. Kasi ang ano ko talaga

vs.
noon i-cocontinue ko up to 10:00 p.m.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

ESG — Bastos ka,  nakalimutan mo na kung

KAPUNAN, J.:
paano ka pumasok dito sa hotel. Magsumbong ka
sa Union kung gusto mo. Nakalimutan mo na
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial kung paano ka nakapasok dito "Do you think that
Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a on your own makakapasok ka kung hindi ako.
confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a Panunumbyoyan na kita (Sinusumbatan na kita).
"hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy." 1 CHUCHI — Itutuloy ko na M'am sana ang duty
ko.
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 ESG — Kaso ilang beses na akong binabalikan
of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial
doon ng mga no (sic) ko.
court's discretion. The transcript on which the civil case was based was culled from a
tape recording of the confrontation made by petitioner. 2 The transcript reads as
follows: ESG — Nakalimutan mo na ba kung paano ka
pumasok sa hotel, kung on your own merit alam
ko naman kung gaano ka "ka bobo" mo. Marami
Plaintiff Soccoro D. Ramirez (Chuchi) — Good
ang nag-aaply alam kong hindi ka papasa.
Afternoon M'am.

CHUCHI — Kumuha kami ng exam noon.

Defendant Ester S. Garcia (ESG) — Ano ba ang
nangyari sa 'yo, nakalimot ka na kung paano ka
napunta rito, porke member ka na, magsumbong ESG — Oo, pero hindi ka papasa.
ka kung ano ang gagawin ko sa 'yo.
CHUCHI — Eh, bakit ako ang nakuha ni Dr.
CHUCHI — Kasi, naka duty ako noon. Tamayo

ESG — Tapos iniwan no. (Sic) ESG — Kukunin ka kasi ako.

 Constitutional Law II Art.III Sec. 3 and 4 Page |2
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka
kasi wala kang utak. Akala mo ba makukuha ka
dito kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa
'yo, makaalala ka kung paano ka puma-rito.
"Putang-ina" sasabi-sabihin mo kamag-anak ng
nanay at tatay mo ang mga magulang ko.
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.
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
 Constitutional Law II Art.III Sec. 3 and 4 Page |3
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?
 Constitutional Law II Art.III Sec. 3 and 4 Page |4
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 is the communication between one person and another
person — not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the
above-quoted deliberations from the Congressional Record, therefore plainly supports
the view held by the respondent court that the provision seeks to penalize even those
privy to the private communications. Where the law makes no distinctions, one does
not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute.
The substance of the same need not be specifically alleged in the information. What
R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or
recording  private communications by means of the devices enumerated therein. The
mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense
under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT
before the respondent court: "Nowhere (in the said law) is it required that before one
can be regarded as a violator, the nature of the conversation, as well as its
communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1
of R.A. 4200 does not include "private conversations" narrows the ordinary meaning
of the word "communication" to a point of absurdity. The word communicate comes
from the latin word communicare, meaning "to share or to impart." In its ordinary
signification, communication connotes the act of sharing or imparting signification,
communication connotes the act of sharing or imparting, as in a conversation, 15 or
signifies the "process by which meanings or thoughts are shared between individuals
through a common system of symbols (as language signs or gestures)" 16 These
definitions are broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the
emotionally-charged exchange, on February 22, 1988, between petitioner and private
respondent, in the privacy of the latter's office. Any doubts about the legislative
body's meaning of the phrase "private communication" are, furthermore, put to rest
by the fact that the terms "conversation" and "communication" were interchangeably
used by Senator Tañada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the
usual nature of conversations as well the undeniable fact that most,
if not all, civilized people have some aspects of their lives they do
not wish to expose. Free conversationsare often characterized by
exaggerations, obscenity, agreeable falsehoods, and the expression
 Constitutional Law II Art.III Sec. 3 and 4 Page |5

of anti-social desires of views not intended to be taken seriously.

The right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state here,
the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's
spiritual nature, of his feelings and of his intellect. They must have
known that part of the pleasures and satisfactions of life are to be
found in the unaudited, and free exchange
of communication between individuals — free from every
unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose
of overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that "penal statutes
must be construed strictly in favor of the accused." 20 The instant case turns on a
different note, because the applicable facts and circumstances pointing to a violation
of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the
unauthorized "recording" of private communications with the use of tape-recorders as
among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and
unambiguous and leaves us with no discretion, the instant petition is hereby DENIED.
The decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.
 Constitutional Law II Art.III Sec. 3 and 4 Page |6
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
 Constitutional Law II Art.III Sec. 3 and 4 Page |7
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
 Constitutional Law II Art.III Sec. 3 and 4 Page |8
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).
 Constitutional Law II Art.III Sec. 3 and 4 Page |9

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):
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).
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

Common experience tells us that a call to a particular telephone Senator Tañada. Another possible objection to
number may cause the bell to ring in more than one ordinarily used that is entrapment which is certainly
instrument. Each party to a telephone conversation takes the risk objectionable. It is made possible by special
that the other party may have an extension telephone and may amendment which Your Honor may introduce.
allow another to overhear the conversation. When such takes place
there has been no violation of any privacy of which the parties may
Senator Diokno.Your Honor, I would feel that
complain. Consequently, one element of 605, interception, has not
entrapment would be less possible with the
occurred.
amendment than without it, because with the
amendment the evidence of entrapment would
In the same case, the Court further ruled that the conduct of the party would differ in only consist of government testimony as against
no way if instead of repeating the message he held out his hand-set so that another the testimony of the defendant. With this
could hear out of it and that there is no distinction between that sort of action and amendment, they would have the right, and the
permitting an outsider to use an extension telephone for the same purpose. government officials and the person in fact would
have the right to tape record their conversation.
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 Senator Tañada. In case of entrapment, it would
an extension telephone is included in the phrase "device or arrangement", the penal be the government.
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:
Senator Diokno. In the same way, under this
provision, neither party could record and,
American jurisprudence sets down the reason for this rule to be the therefore, the court would be limited to saying:
tenderness of the law of the rights of individuals; the object is to "Okay, who is more credible, the police officers or
establish a certain rule by conformity to which mankind would be the defendant?" In these cases, as experienced
safe, and the discretion of the court limited. (United States v. lawyers, we know that the Court go with the
Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin peace offices.
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 10

(Congressional Record, Vol. 111, No. 33, p. 628, Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.
March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that

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

Senator Tañada. Your Honor, this bill is not

intended to prevent the presentation of false
testimony. If we could devise a way by which we
could prevent the presentation of false testimony,
it would be wonderful. But what this bill intends
to prohibit is the use of tape record and other
electronic devices to intercept private
conversations which later on will be used in
court.

(Congressional Record, Vol. III, No. 33, March

12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through

punishment, persons such as government authorities or representatives of organized
groups from installing devices in order to gather evidence for use in court or to
intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be 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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 11
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 respondents clinic without
the latters 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 respondents secretary,
forcibly opened the drawers and cabinet in her husbands clinic and took 157
documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins 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 plaintiffs Complaint or those further described in the Motion to
Return and Suppress and ordering Cecilia Zulueta and any person acting in her behalf
to immediately return the properties to Dr. Martin and to pay him P5,000.00, as
nominal damages; P5,000.00, as moral damages and attorneys 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
courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso Felix,
Jr.,1  this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of
respondents comment in that case) were admissible in evidence and, therefore, their
use by petitioners attorney, Alfonso Felix, Jr., 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 respondents
complaint.
Petitioners 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:
xxx xxx xxx
4. When respondent refiled Cecilias 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-I 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 Courts order, respondents 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
petitioners 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, petitioners 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 husbands 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. Martins admission as to their genuiness and authenticity did not
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 12

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
courts 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] inviolable3 is no less applicable simply because it is the wife (who thinks
herself aggrieved by her husbands 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. 6 Neither 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.

Regalado (Chairman), Romero,  and Puno, JJ.,  concur.

 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 13

 
DECISION
 
 
EN BANC CARPIO, J.:
   
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF  
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
The Case 
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN This petition for review[1] seeks to nullify the Decision [2] of the Court of
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-
HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO, G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed the
Petitioners,
Present: petition for habeas corpus  filed by lawyers Homobono Adaza and Roberto Rafael
Davide, Jr., C.J.,
Puno, Pulido (petitioners) on behalf of their detained clients Capt. Gary Alejano (PN-
Panganiban,
Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG
Quisumbing,
Ynares-Santiago, James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV
Sandoval-Gutierrez,
- versus - Carpio, (PN) (detainees).
Austria-Martinez,  
Corona,
Carpio Morales, Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of
Callejo, Sr.,
Azcuna, the Intelligence Service of the Armed Forces of the Philippines (ISAFP), who has
Tinga,
Chico-Nazario, and custody of the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya),
Garcia, JJ.
Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA, Armed Forces of the Philippines (AFP), Secretary of National Defense and National
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ, Security Adviser, because they have command responsibility over Gen. Cabuay.
Respondents. August 25, 2005
   
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
Antecedent Facts
 
   
 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 14
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 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 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.
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.
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 Center. The transfer took place while military and civilian authorities
were investigating the soldiers involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup detat with
the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the
27 July 2003 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. The case was docketed as Criminal Case No. 03-
2784. The trial court later issued the Commitment Orders giving custody of junior
officers Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service
Commanders to take into custody the military personnel under their command who
took part in the Oakwood incident except the detained junior officers who were to
remain under the custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require
respondents to make a RETURN of the writ on Monday, 18 August
2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case
to the Court of Appeals for RAFFLE among the Justices thereof for
hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from
promulgation of the decision.[3]
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003
directing respondents to make a return of the writ and to appear and produce the
persons of the detainees before the Court of Appeals on the scheduled date for
hearing and further proceedings.
 
On the same date, the detainees and their other co-accused filed with the
Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the
trial court granted.
 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 15
On 18 August 2003, pursuant to the directives of the Court, respondents
submitted their Return of the Writ and Answer to the petition and produced the
detainees before the Court of Appeals during the scheduled hearing. After the parties
filed their memoranda on 28 August 2003, the appellate court considered the petition
submitted for decision.
 
On 17 September 2003, the Court of Appeals rendered its decision
dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who
was in charge of implementing the regulations in the ISAFP Detention Center, to
uphold faithfully the rights of the detainees in accordance with Standing Operations
Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his
commitment made in court regarding visiting hours and the detainees right to
exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court
pointed out that the detainees are already charged of coup detat before the Regional
Trial Court of Makati. Habeas corpus  is unavailing in this case as the detainees
confinement is under a valid indictment, the legality of which the detainees and
petitioners do not even question.
The Court of Appeals recognized that habeas corpus  may  also be the
appropriate remedy to assail the legality of detention if there is a deprivation of a
constitutional right. However, the appellate court held that the constitutional rights
alleged to have been violated in this case do not directly affect the detainees liberty.
The appellate court ruled that the regulation of the detainees right to confer with
their counsels is reasonable under the circumstances.
The appellate court declared that while the opening and reading of Trillanes
letter is an abhorrent violation of his right to privacy of communication, this does not
justify the issuance of a writ of habeas corpus. The violation does not amount to
illegal restraint, which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay
to fulfill the promise he made in open court to uphold the visiting hours and the right
of the detainees to exercise for two hours a day. The dispositive portion of the
appellate courts decision reads:
WHEREFORE, the foregoing considered, the instant
petition is hereby DISMISSED. Respondent Cabuay is hereby
ORDERED to faithfully adhere to his commitment to uphold the
constitutional rights of the detainees in accordance with the
Standing Operations Procedure No. 0263-04 regarding visiting
hours and the right of the detainees to exercise for two (2) hours a
day.
 
SO ORDERED.[4]
 
The Issues
Petitioners raise the following issues for resolution:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 16

 
A.                                            THE COURT OF APPEALS ERRED In a habeas corpus petition, the order to present an individual before the
IN REVIEWING AND REVERSING A DECISION OF THE
SUPREME COURT; court is a preliminary step in the hearing of the petition. [6] The respondent must
 
produce the person and explain the cause of his detention. [7] However, this order is
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; not a ruling on the propriety of the remedy or on the substantive matters covered by
and
  the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual
 
  hearing was not an affirmation of the propriety of the remedy of habeas corpus.
 
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY For obvious reasons, the duty to hear the petition for habeas
OF THE CONDITIONS OF THE DETAINED JUNIOR
OFFICERS DETENTION.[5] corpus necessarily includes the determination of the propriety of the remedy. If a
  
court finds the alleged cause of the detention unlawful, then it should issue the writ
The Ruling of the Court and release the detainees. In the present case, after hearing the case, the Court of

Appeals found that habeas corpus is inapplicable. After actively participating in the

 The petition lacks merit.
  hearing before the Court of Appeals, petitioners are estopped from claiming that the

Petitioners claim that the Courts 12 August 2003 Order granted the petition appellate court had no jurisdiction to inquire into the merits of their petition.
 
and the Court remanded the case to the Court of Appeals only for a factual hearing.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not
Petitioners thus argue that the Courts Order had already foreclosed any question on
the proper remedy to address the detainees complaint against the regulations and
the propriety and merits of their petition.
  conditions in the ISAFP Detention Center. The remedy of habeas corpus has one

Petitioners claim is baseless. A plain reading of the 12 August 2003 Order objective: to inquire into the cause of detention of a person. [8] The purpose of the

shows that the Court referred to the Court of Appeals the duty to inquire into the writ is to determine whether a person is being illegally deprived of his liberty. [9] If the

cause of the junior officers detention. Had the Court ruled for the detainees release, inquiry reveals that the detention is illegal, the court orders the release of the person.

the Court would not have referred the hearing of the petition to the Court of Appeals. If, however, the detention is proven lawful, then the habeas corpus proceedings

The Court would have forthwith released the detainees had the Court upheld terminate. The use of habeas corpus is thus very limited. It is not a writ of error.

petitioners cause. [10]

 Neither can it substitute for an appeal.[11]
   
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 17
Nonetheless, case law has expanded the writs application to circumstances
where there is deprivation of a persons constitutional rights. The writ is available
where a person continues to be unlawfully denied of one or more of his constitutional
freedoms, where there is denial of due process, where the restraints are not merely
involuntary but are also unnecessary, and where a deprivation of freedom originally
valid has later become arbitrary.[12]
However, a mere allegation of a violation of ones constitutional right is not
sufficient. The courts will extend the scope of the writ only if any of the following
circumstances is present: (a) there is a deprivation of a constitutional right resulting
in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the
sentence; or (c) an excessive penalty is imposed and such sentence is void as to the
excess.[13] Whatever situation the petitioner invokes, the threshold remains high. The
violation of constitutional right must be sufficient to void the entire proceedings. [14]
 
Petitioners admit that they do not question the legality of the detention of
the detainees. Neither do they dispute the lawful indictment of the detainees for
criminal and military offenses. What petitioners bewail is the regulation adopted by
Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from
seeing the detainees their clients any time of the day or night. The regulation
allegedly curtails the detainees right to counsel and violates Republic Act No. 7438
(RA 7438).[15] Petitioners claim that the regulated visits made it difficult for them to
prepare for the important hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center
violated the detainees right to privacy of communication when the ISAFP officials
opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo
(Maestrecampo). Petitioners further claim that the ISAFP officials violated the
detainees right against cruel and unusual punishment when the ISAFP officials
prevented the detainees from having contact with their visitors. Moreover, the ISAFP
officials boarded up with iron bars and plywood slabs the iron grills of the detention
cells, limiting the already poor light and ventilation in the detainees cells.
 
Pre-trial detainees do not forfeit their constitutional rights upon confinement.
[16]
 However, the fact that the detainees are confined makes their rights more limited
than those of the public.[17] RA 7438, which specifies the rights of detainees and the
duties of detention officers, expressly recognizes the power of the detention officer to
adopt and implement reasonable measures to secure the safety of the detainee and
prevent his escape. Section 4(b) of RA 7438 provides:
 
Section 4. Penalty Clause. a) x x x
 
b) Any person who obstructs, prevents or prohibits any lawyer, any
member of the immediate family of a person arrested, detained or
under custodial investigation, or any medical doctor or priest or
religious minister or by his counsel, from visiting and conferring
privately chosen by him or by any member of his immediate family
with him, or from examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in urgent cases, of
the night shall suffer the penalty of imprisonment of not less than
four (4) years nor more than six (6) years, and a fine of four
thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security
officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be
necessary to secure his safety and prevent his escape.
(Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from
visiting a detainee client at any hour of the day or, in urgent cases, of the night.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 18
However, the last paragraph of the same Section 4(b) makes the express qualification
that notwithstanding the provisions of Section 4(b), the detention officer has the
power to undertake such reasonable measures as may be necessary to secure the
safety of the detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard.
The regulations governing a detainees confinement must be reasonable measures x x
x to secure his safety and prevent his escape. Thus, the regulations must be
reasonably connected to the governments objective of securing the safety and
preventing the escape of the detainee. The law grants the detention officer the
authority to undertake such reasonable measures or regulations
Petitioners contend that there was an actual prohibition of the detainees
right to effective representation when petitioners visits were limited by the schedule
of visiting hours. Petitioners assert that the violation of the detainees rights entitle
them to be released from detention.
Petitioners contention does not persuade us. The schedule of visiting hours
does not render void the detainees indictment for criminal and military offenses to
warrant the detainees release from detention. The ISAFP officials did not deny, but
merely regulated, the detainees right to counsel. The purpose of the regulation is not
to render ineffective the right to counsel, but to secure the safety and security of all
detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that
regulations must be reasonably related to maintaining security and must not be
excessive in achieving that purpose. Courts will strike down a restriction that is
arbitrary and purposeless.[19] However, Bell v. Wolfish expressly discouraged courts
from skeptically questioning challenged restrictions in detention and prison facilities.
[20]
 The U.S. Supreme Court commanded the courts to afford administrators wide-
ranging deference in implementing policies to maintain institutional security. [21]
 
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides
the standard to make regulations in detention centers allowable: such reasonable
measures as may be necessary to secure the detainees safety and prevent
his escape. In the present case, the visiting hours accorded to the lawyers of the
detainees are reasonably connected to the legitimate purpose of securing the safety
and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact
that the detainees still have face-to-face meetings with their lawyers on a daily
basisclearly shows that there is no impairment of detainees right to
counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00
p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours,
the same hours when lawyers normally entertain clients in their law offices. Clearly,
the visiting hours pass the standard of reasonableness. Moreover, in urgent cases,
petitioners could always seek permission from the ISAFP officials to confer with their
clients beyond the visiting hours.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 19
The scheduled visiting hours provide reasonable access to the detainees,
giving petitioners sufficient time to confer with the detainees. The detainees right to
counsel is not undermined by the scheduled visits. Even in the hearings before the
Senate and the Feliciano Commission,[22] petitioners were given time to confer with
the detainees, a fact that petitioners themselves admit. [23] Thus, at no point were the
detainees denied their right to counsel.
 
Petitioners further argue that the bars separating the detainees from their
visitors and the boarding of the iron grills in their cells with plywood amount to
unusual and excessive punishment. This argument fails to impress us. Bell v.
Wolfish pointed out that while a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law, detention inevitably
interferes with a detainees desire to live comfortably. [24] The fact that the restrictions
inherent in detention intrude into the detainees desire to live comfortably does not
convert those restrictions into punishment. [25] It is when the restrictions are arbitrary
and purposeless that courts will infer intent to punish. [26] Courts will also infer intent
to punish even if the restriction seems to be related rationally to the alternative
purpose if the restriction appears excessive in relation to that purpose. [27] Jail officials
are thus not required to use the least restrictive security measure. [28]
 They must only
refrain from implementing a restriction that appears excessive to the purpose it
serves.[29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners
assert, and respondents concede, that the essential objective of
pretrial confinement is to insure the detainees presence at trial.
While this interest undoubtedly justifies the original decision to
confine an individual in some manner, we do not
accept respondents argument that the Governments interest in
ensuring a detainees presence at trial is the only objective that may
justify restraints and conditions once the decision is lawfully made
to confine a person. If the government could confine or otherwise
infringe the liberty of detainees only to the extent necessary to
ensure their presence at trial, house arrest would in the end be the
only constitutionally justified form of detention. The Government
also has legitimate interests that stem from its need to manage the
facility in which the individual is detained. These legitimate
operational concerns may require administrative measures that go
beyond those that are, strictly speaking, necessary to ensure that
the detainee shows up at trial. For example, the Government must
be able to take steps to maintain security and order at the
institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institutions
interest in maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are discomforting and are
restrictions that the detainee would not have experienced had he
been released while awaiting trial. We need not here attempt to
detail the precise extent of the legitimate governmental interests
that may justify conditions or restrictions of pretrial detention. It is
enough simply to recognize that in addition to ensuring the
detainees presence at trial, the effective management of the
detention facility once the individual is confined is a valid objective
that may justify imposition of conditions and restrictions of pretrial
detention and dispel any inference that such restrictions are
intended as punishment.[30]
An action constitutes a punishment when (1) that action causes the inmate
to suffer some harm or disability, and (2) the purpose of the action is to punish the
inmate.[31] Punishment also requires that the harm or disability be significantly greater
than, or be independent of, the inherent discomforts of confinement. [32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the
blanket restriction on contact visits as this practice was reasonably related to
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 20
maintaining security. The safety of innocent individuals will be jeopardized if they are
exposed to detainees who while not yet convicted are awaiting trial for serious,
violent offenses and may have prior criminal conviction. [34] Contact visits make it
possible for the detainees to hold visitors and jail staff hostage to effect escapes.
[35]
Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs,
and other contraband.[36] The restriction on contact visits was imposed even on low-
risk detainees as they could also potentially be enlisted to help obtain contraband and
weapons.[37] The security consideration in the imposition of blanket restriction on
contact visits was ruled to outweigh the sentiments of the detainees. [38]
Block v. Rutherford held that the prohibition of contact visits bore a
rational connection to the legitimate goal of internal security. [39] This case reaffirmed
the hands-off doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint,
based on the premise that courts should decline jurisdiction over prison matters in
deference to administrative expertise.[40]
 
In the present case, we cannot infer punishment from the separation of the
detainees from their visitors by iron bars, which is merely a limitation on contact
visits. The iron bars separating the detainees from their visitors prevent direct
physical contact but still allow the detainees to have visual, verbal, non-verbal and
limited physical contact with their visitors. The arrangement is not unduly restrictive.
In fact, it is not even a strict non-contact visitation regulation like in Block v.
Rutherford. The limitation on the detainees physical contacts with visitors is a
reasonable, non-punitive response to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the
ISAFP Detention Center. This measure intends to fortify the individual cells and to
prevent the detainees from passing on contraband and weapons from one cell to
another. The boarded grills ensure security and prevent disorder and crime within the
facility. The diminished illumination and ventilation are but discomforts inherent in the
fact of detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions
in the ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee,
except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate
cells, unlike ordinary cramped detention cells. The detainees are treated well and
given regular meals. The Court of Appeals noted that the cells are relatively clean and
livable compared to the conditions now prevailing in the city and provincial jails,
which are congested with detainees. The Court of Appeals found the assailed
measures to be reasonable considering that the ISAFP Detention Center is a high-risk
detention facility. Apart from the soldiers, a suspected New Peoples Army (NPA)
member and two suspected Abu Sayyaf members are detained in the ISAFP
Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP
Detention Center violated the detainees right to privacy when the ISAFP officials
opened and read the letters handed by detainees Trillanes and Maestrecampo to one
of the petitioners for mailing. Petitioners point out that the letters were not in a
sealed envelope but simply folded because there were no envelopes in the ISAFP
Detention Center. Petitioners contend that the Constitution prohibits the infringement
of a citizens privacy rights unless authorized by law. The Solicitor General does not
deny that the ISAFP officials opened the letters.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 21
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 22

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]
 
that [l]oss of freedom of choice and privacy are inherent incidents
of confinement.
 
The distinction between the limited privacy rights of a pre-trial detainee and

 In Hudson v. Palmer,[52]  the U.S. Supreme Court ruled that an inmate has a convicted inmate has been blurred as courts in the U.S. ruled that pre-trial

no reasonable expectation of privacy inside his cell. The U.S. Supreme Court detainees might occasionally pose an even greater security risk than convicted

explained that prisoners necessarily lose many protections of the Constitution, thus: inmates. Bell v. Wolfish reasoned that those who are detained prior to trial may in
 
However, while persons imprisoned for crime enjoy many protections many cases be individuals who are charged with serious crimes or who have prior
of the Constitution, it is also clear that imprisonment carries with it the
records and may therefore pose a greater risk of escape than convicted inmates.
circumscription or loss of many significant rights. These constraints on
inmates, and in some cases the complete withdrawal of certain rights, [55]
Valencia v. Wiggins[56] further held that it is impractical to draw a line between
are justified by the considerations underlying our penal system. The
curtailment of certain rights is necessary, as a practical matter, to convicted prisoners and pre-trial detainees for the purpose of maintaining jail
accommodate a myriad of institutional needs and objectives of prison
facilities, chief among which is internal security. Of course, these security.
restrictions or retractions also serve, incidentally, as reminders that,  
under our system of justice, deterrence and retribution are factors in
addition to correction.[53] American cases recognize that the unmonitored use of pre-trial
 
detainees non-privileged mail poses a genuine threat to jail security. [57] Hence, when
The later case of State v. Dunn, [54]
 citing Hudson v. Palmer,
a detainee places his letter in an envelope for non-privileged mail, the detainee
abandoned Palmigiano v. Travisono and made no distinction as to the detainees
knowingly exposes his letter to possible inspection by jail officials. [58] A pre-trial
limited right to privacy. State v. Dunn noted the considerable jurisprudence in the
detainee has no reasonable expectation of privacy for his incoming mail. [59] However,
United States holding that inmate mail may be censored for the furtherance of a
incoming mail from lawyers of inmates enjoys limited protection such that prison
substantial government interest such as security or discipline. State v.
officials can open and inspect the mail for contraband but could not read the contents
Dunn declared that if complete censorship is permissible, then the lesser act of
without violating the inmates right to correspond with his lawyer. [60] The inspection of
opening the mail and reading it is also permissible. We quote State v. Dunn:
  privileged mail is limited to physical contraband and not to verbal contraband. [61]
[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 Thus, we do not agree with the Court of Appeals that the opening and
institutional security and internal order. We are satisfied that
reading of the detainees letters in the present case violated the detainees right to
society would insist that the prisoners expectation of privacy always
yield to what must be considered a paramount interest in privacy of communication. The letters were not in a sealed envelope. The inspection
institutional security. We believe that it is accepted by our society
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 23

of the folded letters is a valid measure as it serves the same purpose as the opening prison administrators. [63] The deferential review of such regulations stems from the

of sealed letters for the inspection of contraband. principle that:

   
[s]ubjecting the day-to-day judgments of prison officials to an
The letters alleged to have been read by the ISAFP authorities were not inflexible strict scrutiny analysis would seriously hamper their ability
to anticipate security problems and to adopt innovative solutions to
confidential letters between the detainees and their lawyers. The petitioner who the intractable problems of prison administration. [64]
 
received the letters from detainees Trillanes and Maestrecampo was merely acting as
The detainees in the present case are junior officers accused of leading 300
the detainees personal courier and not as their counsel when he received the letters
soldiers in committing coup detat, a crime punishable with reclusion perpetua.[65]The
for mailing. In the present case, since the letters were not confidential
junior officers are not ordinary detainees but visible leaders of the Oakwood incident
communication between the detainees and their lawyers, the officials of
involving an armed takeover of a civilian building in the heart of the financial district
the ISAFP Detention Center could read the letters. If the letters are marked
of the country. As members of the military armed forces, the detainees are subject to
confidential communication between the detainees and their lawyers, the detention
the Articles of War.[66]
officials should not read the letters but only open the envelopes for inspection in the
 
presence of the detainees.
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
That a law is required before an executive officer could intrude on a citizens
of deference in implementing the regulations in the ISAFP Detention Center. The
privacy rights[62] is a guarantee that is available only to the public at large but not to
military custodian is in a better position to know the security risks involved in
persons who are detained or imprisoned. The right to privacy of those detained is
detaining the junior officers, together with the suspected Abu Sayyaf and NPA
subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful
members. Since the appropriate regulations depend largely on the security risks
detention or imprisonment. By the very fact of their detention, pre-trial detainees and
involved, we should defer to the regulations adopted by the military custodian in the
convicted prisoners have a diminished expectation of privacy rights.
  absence of patent arbitrariness.
 
In assessing the regulations imposed in detention and prison facilities that are alleged
The ruling in this case, however, does not foreclose the right of detainees
to infringe on the constitutional rights of the detainees and convicted prisoners, U.S.
and convicted prisoners from petitioning the courts for the redress of grievances.
courts balance the guarantees of the Constitution with the legitimate concerns of
Regulations and conditions in detention and prison facilities that violate the
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 24

REYES and ANTONIO REYES,  

Constitutional rights of the detainees and prisoners will be reviewed by the courts on Petitioners,
   
a case-by-case basis. The courts could afford injunctive relief or damages to the  
-versus-  
detainees and prisoners subjected to arbitrary and inhumane conditions.
 
 
However, habeas corpus is not the proper mode to question conditions of  
THE NATIONAL HOUSING AUTHORITY, JOSE B.  
confinement.[67] The writ of habeas corpus  will only lie if what is challenged is the fact H. PEDROSA, ROMEO G. ROXAS
and SANTIAGO N. PASTOR,  
or duration of confinement.[68] Respondents.
   

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the  

Court of Appeals in CA-G.R. SP No. 78545. G.R. No. 152104

 
 
No pronouncement as to costs.
Present:
 
PUNO, C.J.,
SO ORDERED.
QUISUMBING,
 
ANTONIO T. CARPIO YNARES-SANTIAGO,
Associate Justice
SANDOVAL-GUTIERREZ,*
EN BANC
  CARPIO,

ROMEO G. ROXAS and SANTIAGO N. PASTOR,   G.R. No. 152072 AUSTRIA-MARTINEZ,

Petitioners,
- versus -   CORONA,
 
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE   CARPIO MORALES,
ZUZUARREGUI, PACITA JAVIER, ELIZABETH R. AZCUNA,
 
GONZALES, JOSEFINA R. DAZA, ELIAS REYES,
NATIVIDAD REYES, TERESITA REYES, JOSE   TINGA,
REYES and ANTONIO REYES,
Respondents.   CHICO-NAZARIO,
x---------------------x
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE   GARCIA,
ZUZUARREGUI, PACITA JAVIER, ELIZABETH R.
GONZALES, JOSEFINA R. DAZA, ELIAS REYES,   VELASCO, JR. and
NATIVIDAD REYES, TERESITA REYES, JOSE
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 25

NACHURA, JJ.
Justice Nazario decided G.R. No. 152072 and No. 152104 on considerations other
 
than the pure merits of the case, and called the Supreme Court a dispenser of
Promulgated: injustice.
 
The letter of Atty. Roxas reads in part:
July 12, 2007

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

  As an officer of the court, I am shocked beyond my senses to

 
RESOLUTION
 
PER CURIAM:
Self-approbation, pride and self-esteem should not erode and dim the luster
and dignity of this Court. Against overweening bluster and superciliousness, nay,
lordly claim, this Court must stand steadfast, unmoved and uncompromising in
upholding what is right and proper. In such posture, the mandate of affording every
man the equal protection of the law cannot dwindle. Strict adherence to ethical
conduct and righteousness without veering away from responsibility will foster an
realize that such a wrongful and unjust decision has been rendered
with you no less as the  ponente. This terrible decision will go down
in the annals of jurisprudence as an egregious example of how the
Supreme Court, supposedly the last vanguard and bulwark of
justice is itself made, wittingly or unwittingly, as a party to the
wrongdoing by giving official and judicial sanction and conformity
to the unjust claims of the Zuzuarreguis. We cannot fathom how
such a decision could have been arrived at except through
considerations other than the pure merits of the case. Every
law student reading through the case can see clearly how a brother
lawyer in the profession had been so short-changed by, ironically,
the most sacred and highest institution in the administration and
dispensation of justice.
x x x x

impregnable respect, deference and even reverence to this Courts decisions and  

pronouncements. This is an unjust and unfair decision, to say the least. x x x We cry
out in disbelief that such an impossible decision could spring forth
from the Supreme Court, the ultimate administrator and last
 
bulwark of justice. As it stands, instead of being an
administrator of justice, the Supreme Court is ironically a
In a Resolution[1] dated 26 September 2006, the Court En Banc ordered Atty. dispenser of injustice.
Romeo G. Roxas to explain in writing why he should not be held in contempt of court
 
and subjected to disciplinary action when he, in a letter [2] dated 13 September 2006
Under the circumstances, we hope you will forgive us in expressing
addressed to Associate Justice Minita V. Chico-Nazario with copies thereof furnished our sentiment in this manner as we are utterly frustrated and
dismayed by the elementary injustice being foisted upon us by the
the Chief Justice and all the other Associate Justices, intimated that
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 26

Supreme Court, no less. Given the facts of the case, we will never

dated 22 March 2006, the Court noted the Executive Summary and deferred action on
understand what moved the Honorable Justice to decide as
she did and what forces and influences caused her to the Motion for Reconsideration.[6]
reason out her decision in such an unfair and unjust
manner as to compromise the reputation, integrity and On 27 March 2006, the Court denied with finality the Motion for
dignity itself of the Supreme Court, as a venerable
institution of justice. Reconsideration as the basic issues have already been passed upon and there being

  no substantial argument to warrant the modification of the Courts decision.[7]

As lawyers, we are officers of the Court so that, while we are
being underservedly pained by the seething injustice of the
decision, we will submit to the authority of Highest Court of the
Land, even as our reverence for it has been irreversibly eroded,
thanks to your Honors Judgment.
On 30 March 2006, Roxas and Pastor filed a Motion for Leave to File
Supplemental Motion for Reconsideration, together with the Supplemental Motion for
Reconsideration.[8]

  The following day, they filed a Motion for Leave to File Motion to Set the

x x x x Case for Oral Argument, together with the Motion to Set the Case for Oral Argument

  (on the Motion for Reconsideration and the Supplement thereto). [9] In a Manifestation

dated 3 April 2006, Roxas and Pastor asked that a typographical error appearing in

As for Your Honor, sleep well if you still can. In the end, those we
address as Honorable Justice in this earthly life will [be] judged by the affidavits of service attached to the motions be corrected and that the Motion to
the Supreme Dispenser of Justice where only the merits of Your
Set Case for Oral Argument be granted.[10]
Honors life will be relevant and material and where technicalities
can shield no one from his or her wrongdoings.
On 7 April 2006, Antonio de Zuzuarregui, Jr., et al., filed a Motion for Leave
 
to File Comment on/Opposition to Motion for Reconsideration. [11]
Good day to you, Madame Justice!
On 7 June 2006, Roxas and Pastor filed an Urgent and Compelling Motion
The decision referred to in the letter is the Courts decision [3] in these
for Reconsideration (with Motion to Refer the Case to the En Banc). [12]
consolidated cases where Attys. Roxas and Santiago N. Pastor were ordered to
On 7 June 2006, the Office of then Chief
return, among others, to Antonio de Zuzuarregui, Jr., et al. the amount
Justice Artemio V. Panganiban received from Roxas a letter (with enclosures)
of P17,073,224.84.
[13]
 dated 6 June 2006 which contained, inter alia, the following:
Roxas and Pastor filed their Motion for Reconsideration  on 8 March
[4]

 
2006 which they followed with an Executive Summary [5] the day after. In a resolution
This is an unjust and unfair decision, to say the least.
x x x We cry out in disbelief that such an impossible decision could
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 27
spring forth from the Supreme Court, the ultimate administrator
and last bulwark of justice. As it stands, instead of being an
administrative of justice, the Supreme Court will ironically be a
dispenser of injustice.
Under the circumstances, we cannot avoid to suspect the
bias and partiality of the ponente of the case who we surmise must
have been moved by considerations, other than noble.
 
In this regard, Mr. Chief Justice, we implore Your Honor,
as steward of the Highest Court of the land, to take appropriate
steps to forthwith correct this anomalous decision by first, referring
the case to the Supreme Court En Banc, and then, after allowing us
the opportunity to be heard orally En Banc and after judiciously
considering our Urgent and Compelling Motion for Reconsideration,
thereafter reversing the decision of this Honorable Courts First
Division.
 
Finally, in order to cleanse the Supreme Court of the blot
caused by this case, we most ardently implore upon Your Honor to
immediately direct the conduct of an investigation of how such an
impossible decision was rendered at all and to sanction the
perpetrators thereon.
As the Chief Justice, we have faith in you, Sir, to rectify a
grievous wrong inflicted upon a member of the Bar and to restore
the good image and reputation of the Court by causing the High
Court to reverse such an inconceivable decision that is unfair,
unjust and illegal, being an [impairment] of the obligation of
contracts and against the principle of estoppel.
Said letter was indorsed to the Clerk of Court of the First Division for its
inclusion in the agenda.[14]
On 12 July 2006, the Court resolved to (a) Note Without Action (1) the motion of
petitioners Roxas and Pastor for leave to file supplemental motion for reconsideration
of the decision dated January 31, 2006; (2) the aforesaid supplemental motion for
reconsideration; and (3) respondents Zuzuarreguis motion for leave of court to file
comment/opposition to motion for reconsideration, said motion for reconsideration
having been denied with finality in the resolution of 27 March 2006; (b) Deny for lack
of merit said petitioners (1) motion for leave to file motion to set case for oral
argument; and (2) motion to set the case for oral argument [on the motion for
reconsideration and the supplement thereto]; (c) Note petitioners manifestation
regarding the correction of typographical error in the affidavit of service of their
motion for leave to file motion to set case for oral argument and said motion to set
case for oral arguments; (d) Deny the urgent and compelling second motion for
reconsideration of petitioners Romeo G. Roxas and Santiago N. Pastor of the decision
dated 31 January 2006 [with motion to refer the case to the Court En Banc],
considering that a second motion for reconsideration is a prohibited pleading under
Sec. 2, Rule 52, in relation to Sec. 4, Rule 56 of the 1997 Rules of Civil Procedure, as
amended; (e) Deny said petitioners motion to refer the cases to the Court En Banc,
the latter not being an appellate court to which decisions or resolutions of the
Divisions may be appealed, pursuant to SC Circular 2-89 dated 7 February 1989, as
amended by the resolution of 18 November 1993; and (f) Note the
First Indorsement dated 9 June 2006 of the Hon. Chief
Justice Artemio V. Panganiban referring for inclusion in the agenda the thereto
attached letter [with enclosures] of Atty. Romeo G. Roxas, relative to these cases.[15]
On 13 September 2006, on motion by the Zuzuarreguis for the issuance of entry of
judgment, the Court ordered that entry of judgment in these cases be made in due
course.[16]
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On 14 September 2006, Roxas and Pastor filed an Urgent Motion for Clarification of
Judgment.[17] On even date, the letter subject of this contempt proceeding dated 13
September 2006 was received by Justice Nazario with copies thereof furnished the
Chief Justice and all the other Associate Justices.[18]
On 18 September 2006, Roxas and Pastor filed a Motion to Withdraw said
motion and instead prayed that their Urgent and Compelling Motion for Clarification
of Judgment dated 15 September 2006 be admitted.[19]
On 20 September 2006, the Court, treating petitioners Roxas and Pastors
Urgent Motion for Clarification of Judgment as a second motion for reconsideration,
denied the same for lack of merit. We also noted without action the motion to
withdraw said motion for clarification with intention to re-file the same with the
necessary corrections, and referred to the Court En Banc the letter dated 13
September 2006.[20]
In a resolution dated 26 September 2006, this Court ordered Atty. Roxas to
explain in writing why he should not be held in contempt of court and subjected to
disciplinary action on account of the letter he sent to Justice Nazario with copies
thereof furnished the Chief Justice and all the other Associate Justices.
On 22 November 2006, the Court noted without action petitioner Roxas and
Pastors Urgent and Compelling Motion for Clarification of Judgment in light of the
denial of their Urgent Motion for Clarification of Judgment on 20 September
2006 which the Court treated as a second motion for reconsideration. [21]
On 16 November 2006, by way of compliance with the 26 September
2006 resolution, Atty. Roxas submitted his written explanation. His letter stated:
With all due respect to this Honorable Court, and beyond my
personal grievances, I submit that the ruling in the subject
consolidated cases may not have met the standards or adhered to
the basic characteristics of fair and just decision, such as
objectivity, neutrality and conformity to the laws and the
constitution. x x x
x x x x
Aside from the fact that the aforesaid ruling appears to be seriously
flawed, it also casts grave aspersions on my personal and
professional integrity and honor as a lawyer, officer of the court
and advocate of justice.
x x x x
These implications, Your Honors, which I find hard to accept, have
caused me severe anxiety, distress and depredation and have
impelled me to exercise my right to express a legitimate grievance
or articulate a bona fide and fair criticism of this Honorable Courts
ruling.
While certain statements, averments and/or declarations in my 13
September 2006 letter may have been strongly-worded and
construed by this Honorable Court as tending to ascribe aspersions
on the person of the Honorable Associate Justice Minita V. Chico-
Nazario, may I assure Your Honors that no such ascription was ever
intended by the undersigned.
Quite notably, despite my aggrieved sentiments and exasperated
state, I chose to ventilate my criticisms of the assailed ruling in a
very discreet and private manner. Accordingly, instead of resorting
to public criticism through media exposure, I chose to write a
personal letter confined to the hallowed halls of the highest tribunal
of the land and within the bounds of decency and propriety. This
was done in good faith with no intention whatsoever to offend any
member, much less tarnish the image of this Honorable Court.
Nonetheless, it is with humble heart and a repentant soul that I
express my sincerest apologies not only to the individual members
of this Honorable Court but also to the Supreme Court as a revered
institution and ultimate dispenser of justice.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 29

As earlier explained, I was merely exercising my right to express a

It is to be noted that prior to his letter dated 13 September 2006,
legitimate grievance or articulate a bona fide and fair criticism of
this Honorable Courts ruling. If the nature of my criticism/comment Atty. Roxas wrote then Chief Justice Artemio V. Panganiban asking for an immediate
or the manner in which it was carried out was perceived to have
transgressed the permissible parameters of free speech and investigation of how such an impossible decision was rendered at all and to sanction
expression, I am willing to submit myself to the sound and the perpetrators thereon. It is to be stressed that then Chief Justice Panganibanwas a
judicious discretion of this Honorable Court. x x x
member of the Division who concurred in the ponencia written by
After reviewing the records of these cases, We firmly stand by our decision which Justice Nazario. The former and the other three members [23]
 of the Division did not
Atty. Roxas described to be unjust, unfair and impossible, and arrived at through find anything illegal, unjust or unfair about the decision; otherwise, they would have
considerations other than the pure merits of the case. Atty. Roxass insistence that registered their dissents. There was none. The decision was arrived at after a
said decision did not meet the standards or adhered to the basic characteristics of fair thorough deliberation of the members of the Court.
and just decision, such as objectivity, neutrality and conformity to the laws and the
Atty. Roxas faulted the Supreme Court when (o)ur two Motions for
Constitution, is simply without basis. The fact that the decision was not in his favor
Reconsiderations were unceremoniously denied via Minute Resolutions without
does not mean that the same was contrary to our laws and was not rendered in a fair
addressing at all the merits of our very solid arguments. We cannot help but observe
and impartial manner
the High Courts resort to technicalities (that a second motion for reconsideration is a
In one case, [22]
 we had this to say when a lawyer challenged the integrity not only of prohibited pleading) if only for it to avoid meeting the merits and arguments directly.
the Court of Appeals but also of this Court by claiming that the courts knowingly
It is settled that the Court is not duty-bound to render signed Decisions all the
rendered an unjust judgment:
time. It has ample discretion to formulate Decisions and/or minute Resolutions,
We note with wonder and amazement the brazen
provided a legal basis is given, depending on its evaluation of a case. [24] In the case
effrontery of respondent in assuming that his personal knowledge
of the law and his concept of justice are superior to that of both before us, after going over the motion for reconsideration filed by Roxas and Pastor,
the Supreme Court and the Court of Appeals. His pretense cannot
but tend to erode the people's faith in the integrity of the courts of we did not find any substantial argument that would merit the modification of our
justice and in the administration of justice. He repeatedly invoked decision and that would require an extended resolution since the basic issues had
his supposed quest for law and justice as justification for his
contemptuous statements without realizing that, in seeking both already been passed upon.
abstract elusive terms, he is merely pursuing his own personal
concept of law and justice. He seems not to comprehend that what In his letter subject of this contempt proceeding, Atty. Roxas accused
to him may be lawful or just may not be so in the minds of others.
Justice Nazario of deciding the case through considerations other than the pure
He could not accept that what to him may appear to be right or
correct may be wrong or erroneous from the viewpoint of merits of the case. He averred that we will never understand what moved the
another. x x x.
Honorable Justice to decide as she did and what forces and influences caused her to
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 30
reason out her decision in such an unfair and unjust manner as to compromise the
reputation, integrity and dignity itself of the Supreme Court, as a venerable institution
of justice.He then ended by mocking her when he said sleep well if you still can and
that her earthly life will [be] judged by the Supreme Dispenser of Justice where only
the merits of Your Honors life will be relevant and material and where technicalities
can shield no one from his or her wrongdoings.
As to the Court, supposedly the last vanguard and bulwark of justice, he
likewise accuses it of making itself, wittingly or unwittingly, a party to the wrongdoing
by giving official and judicial sanction and conformity to the unjust claims of the
adverse party. He added: This is an unjust and unfair decision, to say the
least. x x xWe cry out in disbelief that such an impossible decision could spring forth
from the Supreme Court, the ultimate administrator and last bulwark of justice. As it
stands, instead of being an administrator of justice, the Supreme Court is ironically a
dispenser of injustice.
In his letter of explanation, Atty. Roxas extended apologies to Justice Nazario, to the
other members of the High Court and to the High Court itself as a revered institution
and ultimate dispenser of justice. He said he was merely exercising his right to
express a legitimate grievance or articulate a bona fide and fair criticism of the
Honorable Courts ruling. He explained that his criticism of the assailed ruling was
done in good faith with no intention whatsoever to offend any member, much less
tarnish the image of the Court. Instead of resorting to public criticism through media
exposure, he chose to ventilate his criticism in a very discreet and private manner by
writing a personal letter confined to the hallowed halls of the Court and within
bounds of decency and propriety.
We find the explanations of Atty. Roxas unsatisfactory. The accusation
against Justice Nazario is clearly without basis. The attack on the person of
Justice Nazario has caused her pain and embarrassment. His letter is full of
contemptuous remarks tending to degrade the dignity of the Court and erode public
confidence that should be accorded it.
To prevent liability from attaching on account of his letter, he invokes his
rights to free speech and privacy of communication. The invocation of these rights
will not, however, free him from liability. As already stated, his letter contained
defamatory statements that impaired public confidence in the integrity of the
judiciary.The making of contemptuous statements directed against the Court is not an
exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on
the dignity of the courts cannot be disguised as free speech, for the exercise of said
right cannot be used to impair the independence and efficiency of courts or public
respect therefor and confidence therein.[25] Free expression must not be used as a
vehicle to satisfy ones irrational obsession to demean, ridicule, degrade and even
destroy this Court and its magistrates.[26]
This Court does not curtail the right of a lawyer, or any person for that
matter, to be critical of courts and judges as long as they are made in properly
respectful terms and through legitimate channels. This Court
in In re: Almacen [27]
 said:
Moreover, every citizen has the right to comment upon
and criticize the actuations of public officers. This right is not
diminished by the fact that the criticism is aimed at a judicial
authority, or that is it articulated by a lawyer. Such right is
especially recognized where the criticism concerns a concluded
litigation, because then the courts actuation are thrown open to
public consumption. x x x
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 31
x x x x
Courts and judges are not sacrosanct. They should and expect
critical evaluation of their performance. For like the executive and
the legislative branches, the judiciary is rooted in the soil of
democratic society, nourished by the periodic appraisal of the
citizen whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer
of the court and as a citizen, to criticize in properly respectful terms
and through legitimate channels the acts of courts and judges.
x x x
x x x x
Hence, as a citizen and as officer of the court, a lawyer is expected
not only to exercise the right, but also to consider it his duty to
avail of such right. No law may abridge this right. Nor is he
professionally answerable for a scrutiny into the official conduct of
the judges, which would not expose him to legal animadversion as
a citizen.  portions thereof; in the language of the charges she filed before
x x x x
But it is the cardinal condition of all such criticism that it shall be
bona fide and shall not spill over the walls of decency and
propriety. A wide chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the judges thereof, on
the other. Intemperate and unfair criticism is a gross violation of
the duty of respect to courts. It is such a misconduct that subjects
a lawyer to disciplinary action.
In the case at bar, we find the statements made by Atty. Roxas to have been
made mala fides and exceeded the boundaries of decency and propriety. By his
unfair and unfounded accusation against Justice Nazario, and his mocking of the
Court for allegedly being part of a wrongdoing and being a dispenser of injustice, he
abused his liberty of speech.
In In re: Wenceslao Laureta,[28] cited in United BF Homeowners v. Sandoval-
Gutierrez,
[29]
 we ruled:
To allow litigants to go beyond the Courts resolution and
claim that the members acted with deliberate bad faith and
rendered an unjust resolution in disregard or violation of the duty
of their high office to act upon their own independent consideration
and judgment of the matter at hand would be to destroy the
authenticity, integrity and conclusiveness  of such collegiate acts
and resolutions and to disregard utterly the presumption of regular
performance of official duty. To allow such collateral attack would
destroy the separation of powers and undermine the role of the
Supreme Court as the final arbiter of all justiciable disputes.
x x x x
In resume, we find that respondent Ilustre has
transcended the permissible bounds of fair comment and criticism
to the detriment of the orderly administration of justice in her
letters addressed to the individual Justices quoted in the show-
cause Resolution of this court en banc, particularly the under lined
the Tanodbayan quoted and underscored in the same Resolution;
in her statements, conduct, acts and charges against the Supreme
Court and/or the official actions of the justices concerned and her
ascription of improper motives to them; and in her unjustified
outburst that she can no longer expect justice from this Court. The
fact that said letters are not technically considered pleadings, nor
the fact that they were submitted after the main petition had been
finally resolved does not detract from the gravity of the contempt
committed. The constitutional right of freedom of speech or right to
privacy cannot be used as a shield for contemptuous acts against
the Court.
Atty. Roxas likewise cannot hide under the mantle of the right to privacy. It must be
disclosed that prior to his letter addressed to Justice Nazario, Atty. Roxas first wrote
then Chief Justice Panganiban asking for an investigation as to how the assailed
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 32

Sec. 7.  Punishment for indirect contempt. If the

decision was rendered and to sanction the perpetrators. The accusations contained respondent is adjudged guilty of indirect contempt committed
therein are similar to those in his letter to Justice Nazario. The fact that his letters against a Regional Trial Court or a court of equivalent or higher
rank, he may be punished by a fine not exceeding thirty thousand
were merely addressed to the Justices of this Court and were not disseminated to the pesos or imprisonment not exceeding six (6) months or both. x x x.
media is of no moment. Letters addressed to individual Justices, in connection with
The disrespect caused to the Court by Atty. Roxas merits a fine of P30,000.00 with a
the performance of their judicial functions, become part of the judicial record and are
warning that a repetition of a similar act will warrant a more severe penalty.
a matter of concern for the entire court. [30] As can be gathered from the records, the

letter to then Chief Justice Panganiban was merely noted and no show-cause order With his contemptuous and defamatory statements, Atty. Roxas likewise

was issued in the hope that Atty. Roxas would stop his assault on the violated Canon 11 of the Code of Professional Responsibility, particularly Canons

Court. However, since Atty. Roxas persisted in attacking the Court viahis second 11.03 and 11.04. These provisions read:

letter, it behooved the Court to order him to explain why he should not be held in CANON 11 -- A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
contempt of court and subjected to disciplinary action. SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS

Under the circumstances, we find Atty. Romeo G. Roxas guilty of indirect  

contempt of court under Section 3, Rule 71 of the 1997 Rules of Civil Procedure, as x x x x

amended. Said section reads:  

Rule 11.03. A lawyer shall abstain from scandalous,

Section 3. Indirect contempt to be punished after charge offensive and menacing language or behavior before the Courts.
and hearing.  After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon within  
such period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts may Rule 11.04. A lawyer shall not attribute to a Judge
be punished for indirect contempt: motives not supported by the record or have no materiality to the
case.
x x x x
It is the duty of a lawyer as an officer of the court to uphold the dignity and authority
d. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice; x x x. of the courts and to promote confidence in the fair administration of justice and in

 x x x x the Supreme Court as the last bulwark of justice and democracy.[31] Respect for the

courts guarantees the stability of the judicial institution. Without such guarantee, the
Section 7, Rule 71 of the 1997 Rules of Civil Procedure, as amended, provides the
institution would be resting on a very shaky foundation. [32] When confronted with
penalty for indirect contempt as follows:
actions and statements, from lawyers and non-lawyers alike, that tend to promote
 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 33
distrust and undermine public confidence in the judiciary, this Court will not hesitate
to wield its inherent power to cite any person in contempt. In so doing, it preserves
its honor and dignity and safeguards the morals and ethics of the legal profession. [33]
WHEREFORE, premises considered, Atty. Romeo G. Roxas is found GUILTY of
indirect contempt of court. He is hereby FINED the amount of P30,000.00 to be paid
within ten (10) days from receipt of this Resolution and WARNED that a repetition of
a similar act will warrant a more severe penalty.
Let a copy of this Resolution be attached to Atty. Roxas personal record in the Office
of the Bar Confidant and copies thereof be furnished the Integrated Bar of
the Philippines.
SO ORDERED.
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,  to trace the revolution from the death of Senator Aquino, to the
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
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 34
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:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 35
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 demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
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
constitutional and statutory, does include a right of privacy. 5 It is left to case law,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 36
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 37
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 38
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 39
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.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 90878               January 29, 1990
PABLITO V. SANIDAD, petitioner, 
vs.
THE COMMISSION ON ELECTIONS, respondent
MEDIALDEA, J.:
This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec
Resolution No. 2167 on the ground that it violates the constitutional guarantees of
the freedom of expression and of the press.
On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN
ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law.
Pursuant to said law, the City of Baguio and the Cordilleras which consist of the
provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all
comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the
ratification of said Organic Act originally scheduled last December 27, 1989 which
was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226
dated December 27, 1989.
The Commission on Elections, by virtue of the power vested by the 1987 Constitution,
the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election
laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on
the said Organic Act for the Cordillera Autonomous Region.
In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who
claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND
COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras,
assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which
provides:
Section 19. Prohibition on columnists, commentators or announcers . —
During the plebiscite campaign period, on the day before and on the
plebiscite day, no mass media columnist, commentator, announcer or
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 40
personality shall use his column or radio or television time to campaign for
or against the plebiscite issues.
It is alleged by petitioner that said provision is void and unconstitutional because it
violates the constitutional guarantees of the freedom of expression and of the press
enshrined in the Constitution.
Unlike a regular news reporter or news correspondent who merely reports the news,
petitioner maintains that as a columnist, his column obviously and necessarily
contains and reflects his opinions, views and beliefs on any issue or subject about
which he writes. Petitioner believes that said provision of COMELEC Resolution No.
2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the
press and further imposes subsequent punishment for those who may violate it
because it contains a penal provision, as follows:
Article XIII, Section 122, Election Offenses and Banned Acts or Activities. —
Except to the extent that the same may not be applicable plebiscite. the
banned acts/activities and offenses defined in and penalized by the Omnibus
Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and
the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite
governed by this Resolution.
Petitioner likewise maintains that if media practitioners were to express their views,
beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the
government drive and desire to disseminate information, and hear, as well as
ventilate, all sides of the issue.
On November 28, 1989, We issued a temporary restraining order enjoining
respondent Commission on Elections from enforcing and implementing Section 19 of
Resolution No. 2167. We also required the respondent to comment on the petition.
On January 9, 1990, respondent Commission on Elections, through the Office of the
Solicitor General filed its Comment.
Respondent Comelec maintains that the questioned provision of Comelec Resolution
No. 2167 is not violative of the constitutional guarantees of the freedom of
expression and of the press. Rather it is a valid implementation of the power of the
Comelec to supervise and regulate media during election or plebiscite periods as
enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the
Philippines.
It is stated further by respondent that Resolution 2167 does not absolutely bar
petitioner from expressing his views and/or from campaigning for or against the
Organic Act. He may still express his views or campaign for or against the act through
the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881:
Section 90. Comelec Space. — Commission shall procure space in at least
one newspaper of general circulation in every province or city: Provided,
however, That in the absence of said newspaper, publication shall be done
in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge equally and
impartially within the area in which the newspaper is circulated.
Section 92. Comelec Time. — The Commission shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide
radio or television time, free of charge, during the period of the campaign.
Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and
Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section
19 of Comelec Resolution 2167.
Article IX-C of the 1987 Constitution provides:
The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful and credible
elections.
Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987)
likewise provides:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 41
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: ...
(b) for any newspaper, radio, broadcasting or television station, or other
mass media, or any person making use of the mass media to sell or to give
free of charge print space or air time for campaign or other political
purposes except to the Commission as provided under Sections 90 and 92 of
Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcer, or personality who is a candidate for any elective office shall
take a leave of absence from his work as such during the campaign period.
(Emphasis ours)
However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to
the Comelec was the power to supervise and regulate the use and enjoyment
of franchises, permits or other grants issued for the operation of transportation or
other public utilities, media of communication or information to the end that equal
opportunity, time and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in terms of
advertising space or radio or television time. This is also the reason why a "columnist,
commentator, announcer or personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign period (2nd
par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator
who is also a candidate would be more exposed to the voters to the prejudice of
other candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A.
6646 can be construed to mean that the Comelec has also been granted the right to
supervise and regulate the exercise by media practitioners themselves of their right to
expression during plebiscite periods. Media practitioners exercising their freedom of
expression during plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in a plebiscite. Therefore,
Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the
constitutionality of the prohibition of certain forms of election propaganda was
assailed, We ruled therein that the prohibition is a valid exercise of the police power
of the state "to prevent the perversion and prostitution of the electoral apparatus and
of the denial of equal protection of the laws." The evil sought to be prevented in an
election which led to Our ruling in that case does not obtain in a plebiscite. In a
plebiscite, votes are taken in an area on some special political matter unlike in an
election where votes are cast in favor of specific persons for some office. In other
words, the electorate is asked to vote for or against issues, not candidates in a
plebiscite.
Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167
does not absolutely bar petitioner-columnist from expressing his views and/or from
campaigning for or against the organic act because he may do so through the
Comelec space and/or Comelec radio/television time, the same is not meritorious.
While the limitation does not absolutely bar petitioner's freedom of expression, it is
still a restriction on his choice of the forum where he may express his view. No
reason was advanced by respondent to justify such abridgement. We hold that this
form of regulation is tantamount to a restriction of petitioner's freedom of expression
for no justifiable reason.
Plebiscite issues are matters of public concern and importance. The people's right to
be informed and to be able to freely and intelligently make a decision would be better
served by access to an unabridged discussion of the issues, including the forum. The
people affected by the issues presented in a plebiscite should not be unduly burdened
by restrictions on the forum where the right to expression may be exercised. Comelec
spaces and Comelec radio time may provide a forum for expression but they do not
guarantee full dissemination of information to the public concerned because they are
limited to either specific portions in newspapers or to specific radio or television
times.
ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution
No. 2167 is declared null and void and unconstitutional. The restraining order herein
issued is hereby made permanent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and Regalado, JJ., concur.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 42

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, 

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections
(COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public
or private, and limit their location or publication to the authorized posting areas that
it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its
powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos.
6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful

election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or

printed letters, or other written or printed materials not more than
eight and one-half (8-1/2) inches in width and fourteen (14) inches
in length. Provided, That decals and stickers may be posted only in
any of the authorized posting areas  provided  in paragraph (f) of
Section 21 hereof.

Section 21 (f) of the same resolution provides:

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 43
Sec. 21(f). Prohibited forms of election propaganda. —
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any
election propaganda in any place, whether public or private, mobile
or stationary, except in the COMELEC common posted areas and/or
billboards, at the campaign headquarters of the candidate or
political party, organization or coalition, or at the candidate's own
residential house or one of his residential houses, if he has more
than one:Provided, that such posters or election propaganda shall
not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)
x x x           x x x          x x x
The statutory provisions sought to be enforced by COMELEC are Section 82 of the
Omnibus Election Code on lawful election propaganda which provides:
Lawful election propaganda. — Lawful election propaganda shall
include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written or
printed materials of a size not more than eight and one-half inches
in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or
against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted,
with an area not exceeding two feet by three feet, except that, at
the site and on the occasion of a public meeting or rally, or in
announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be
allowed: Provided, That said streamers may not be displayed
except one week before the date of the meeting or rally and that it
shall be removed within seventy-two hours after said meeting or
rally; or
(d) All other forms of election propaganda not prohibited by this
Code as the Commission may authorize after due notice to all
interested parties and hearing where all the interested parties were
given an equal opportunity to be heard: Provided, That the
Commission's authorization shall be published in two newspapers of
general circulation throughout the nation for at least twice within
one week after the authorization has been granted. (Section 37,
1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda. — In addition to the
forms of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or publicly exhibit any election
propaganda in any place, whether private, or public, except in the
common poster areas and/or billboards provided  in the
immediately preceding section, at the candidate's own residence, or
at the campaign headquarters of the candidate or political
party: Provided, That such posters or election propaganda shall in
no case exceed two (2) feet by three (3) feet in area: Provided,
Further, That at the site of and on the occasion of a public meeting
or rally, streamers, not more than two (2) and not exceeding three
(3) feet by eight (8) feet each may be displayed five (5) days
before the date of the meeting or rally, and shall be removed within
twenty-four (24) hours after said meeting or rally; . . . (Emphasis
supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections
now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and
stickers in "mobile" places like cars and other moving vehicles. According to him such
prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a)
of Republic Act No. 6646. In addition, the petitioner believes that with the ban on
radio, television and print political advertisements, he, being a neophyte in the field
of politics stands to suffer grave and irreparable injury with this prohibition. The
posting of decals and stickers on cars and other moving vehicles would be his last
medium to inform the electorate that he is a senatorial candidate in the May 11, 1992
elections. Finally, the petitioner states that as of February 22, 1992 (the date of the
petition) he has not received any notice from any of the Election Registrars in the
entire country as to the location of the supposed "Comelec Poster Areas."
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 44
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 45
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]).
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 46
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 47
The provisions allowing regulation are so loosely worded that they include the posting
of decals or stickers in the privacy of one's living room or bedroom. This is delegation
running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co.
v. Ryan  (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined
and vagrant . . . This is delegation running riot. No such plentitude of power is
susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate
equal opportunity to inform the electorate as regards their candidacies, mandated by
Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of
the Constitution, is not impaired by posting decals and stickers on cars and other
private vehicles. Compared to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations behind the regulation are of
marginal significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal
access to opportunities for public service, . . . while under section 1, Article XIII
thereof "The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social,
economic, andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles,
pedicabs and other moving vehicles needs the consent of the owner of the vehicle.
Hence, the preference of the citizen becomes crucial in this kind of election
propaganda not the financial resources of the candidate. Whether the candidate is
rich and, therefore, can afford to doleout more decals and stickers or poor and
without the means to spread out the same number of decals and stickers is not as
important as the right of the owner to freely express his choice and exercise his right
of free speech. The owner can even prepare his own decals or stickers for posting on
his personal property. To strike down this right and enjoin it is impermissible
encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places whether
public or private except in the authorized areas designated by the COMELEC becomes
censorship which cannot be justified by the Constitution:
. . . The concept of the Constitution as the fundamental law, setting
forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to manifest fealty to
the rule of law, with priority accorded to that which occupies the
topmost rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guard lest the restrictions
on its authority, either substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard
what it ordains. In its task of applying the law to the facts as found
in deciding cases, the judiciary is called upon to maintain inviolate
what is decreed by the fundamental law. Even its power of judicial
review to pass upon the validity of the acts of the coordinate
branches in the course of adjudication is a logical. corollary of this
basic principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates. Thereby
there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for a more
liberal interpretation of the freedom to speak and the right to know. It is not alone
the widest possible dissemination of information on platforms and programs which
concern us. Nor are we limiting ourselves to protecting the unfettered interchange of
ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big
number of candidates and elective positions involved has resulted in the peculiar
situation where almost all voters cannot name half or even two-thirds of the
candidates running for Senator. The public does not know who are aspiring to be
elected to public office.
There are many candidates whose names alone evoke qualifications, platforms,
programs and ideologies which the voter may accept or reject. When a person
attaches a sticker with such a candidate's name on his car bumper, he is expressing
more than the name; he is espousing ideas. Our review of the validity of the
challenged regulation includes its effects in today's particular circumstances. We are
constrained to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of
Resolution No. 2347 of the Commission on Elections providing that "decals and
stickers may be posted only in any of the authorized posting areas provided  in
paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea,
Regalado, Davide, Jr., Romero and Nocon, J.J., concur.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 48

Feliciano and Bellosillo, JJ., are on leave. EN BANC

[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.

DECISION

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. 98-1419[1] 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 x x x and to make [an] exit survey of
the x x x 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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 49
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 x x x 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 Petition[5] 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 Pano, 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 for 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 of 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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 50
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. x x x [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 matter 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. [20] They 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. Fernandez[22]  this Court had occasion to discuss two theoretical tests
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. x x x"[23]
"The 'dangerous tendency' rule, on the other hand, x x x 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]
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 51
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly
did in  its earlier decisions in Primicias v. Fugoso[25] 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. Comelec[30]  and, more recently, in Iglesia ni Cristo
v. MTRCB.[31] In setting the standard or test for the "clear and present danger"
doctrine, the Court echoed the words of justice Holmes: "The question in every case
is whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree."[32]
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but also present.
"Present" refers to the time element; the danger must not only be probable but very
likely to be inevitable.[33] The 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] x x x 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 x x x 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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 52
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' answers 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.
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 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 to be 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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 53

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, EN BANC
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 FRANCISCO CHAVEZ,
countermeasures may be prescribed by the Comelec, so as to minimize or
suppress incidental problems in the conduct of exit polls, without transgressing the
Petitioner,
fundamental rights of our people.

- versus -
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 RAUL M. GONZALES,
hereby NULLIFIED  and SET ASIDE.  No  costs.
in his capacity as the
SO ORDERED.
Secretary of the

Department of Justice;

and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),

Respondents. G.R. No. 168338

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 54

TINGA,
Indeed, we have not wavered in the duty to uphold this cherished freedom.
CHICO-NAZARIO, 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,

VELASCO, JR.,
[3]
 and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a
NACHURA,
governmental act is nothing more than a naked means to prevent the free exercise of

REYES, and speech, it must be nullified.

 
LEONARDO-DE CASTRO, JJ.
B. The Facts
 

1.     The case originates from events that occurred a year after the 2004
Promulgated:
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

February 15, 2008
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

DECISION
a Malacaang press briefing, Secretary Bunye produced two versions of the
 
  tape, one supposedly the complete version, and the other, a spliced,
PUNO, C.J.:
doctored or altered version, which would suggest that the President had
 
instructed the COMELEC official to manipulate the election results in the
A. Precis
Presidents favor. [6] It seems that Secretary Bunye admitted that the voice
 
was that of President Arroyo, but subsequently made a retraction.  [7]
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
2.     On June 7, 2005, former counsel of deposed President Joseph Estrada,
to restrict it must be met with an examination so critical that only a danger that is
Atty. Alan Paguia, subsequently released an alleged authentic tape recording
clear and present would be allowed to curtail it.
of the wiretap. Included in the tapes were purported conversations of the
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 55
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 countrys unusual situation,
and in order not to unnecessarily aggravate the same, the
NTC warns all radio stations and television network
owners/operators that the conditions of the authorization
and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use [their]
stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it
has come to the attention of the [NTC] that certain
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
information. Accordingly, NTC and KBP issued a Joint
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
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 56
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
right to
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against
Press
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:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 57
[F]or [the] nullification of acts, issuances, and orders of
respondents committed or made since June 6, 2005 until the
present that curtail the publics rights to freedom of expression and
of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial
taped conversion of President Arroyo and for prohibition of the
further commission of such acts, and making of such issuances,
and orders by respondents. [15]
 
Respondents[16] denied that the acts transgress the Constitution, and
questioned petitioners legal standing to file the petition. Among the arguments they
raised as to the validity of the fair warning issued by respondent NTC, is that
broadcast media enjoy lesser constitutional guarantees compared to print media, and
the warning was issued pursuant to the NTCs mandate to regulate the
telecommunications industry. [17] It was also stressed that most of the [television] and
radio stations continue, even to this date, to air the tapes, but of late within the
parameters agreed upon between the NTC and KBP. [18]
 
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
 
To be sure, the circumstances of this case make the constitutional challenge
peculiar. Petitioner, who is not a member of the broadcast media, prays that we
strike down the acts and statements made by respondents as violations of the right
to free speech, free expression and a free press. For another, the recipients of the
press statements have not come forwardneither intervening nor joining petitioner in
this action. Indeed, as a group, they issued a joint statement with respondent NTC
that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing,
having failed to allege such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the Court so largely depends for illumination of difficult constitutional
questions. 
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 58
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 59

and change.[34] As early as the 1920s, the trend as reflected in Philippine and political, economic, scientific, news, or informational ends, inasmuch as the

American decisions was to recognize the broadest scope and assure the widest Constitution's basic guarantee of freedom to advocate ideas is not confined to the

latitude for this constitutional guarantee. The trend represents a profound expression of ideas that are conventional or shared by a majority.

commitment to the principle that debate on public issue should be uninhibited,  

robust, and wide-open. [35] The constitutional protection is not limited to the exposition of ideas. The

  protection afforded free speech extends to speech or publications that are

Freedom of speech and of the press means something more than the right entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting

to approve existing political beliefs or economic arrangements, to lend support to Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether
official measures, and to take refuge in the existing climate of opinion on any matter print or broadcast, are entitled to the broad protection of the clause on freedom of

of public consequence. [36]

 When atrophied, the right becomes meaningless. [37]
The speech and of expression.

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 While all forms of communication are entitled to the broad protection of

to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of expression clause, the freedom of film, television and radio

freedom of speech and of the press should allow and even encourage the articulation broadcasting is somewhat lesser in scope than the freedom accorded to

of the unorthodox view, though it be hostile to or derided by others; or though such newspapers and other print media, as will be subsequently discussed.

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 E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
thought that we hate, no less than for the thought that agrees with us.  [40]
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

The scope of freedom of expression is so broad that it extends protection to nearly all realities of life in a complex society preclude a literal interpretation of the provision

forms of communication. It protects speech, print and assembly regarding secular as prohibiting the passage of a law that would abridge such freedom. For freedom of

well as political causes, and is not confined to any particular field of human interest. expression is not an absolute,  [42] nor is it an unbridled license that gives immunity for

The protection covers myriad matters of public interest or concern embracing all every possible use of language and prevents the punishment of those who abuse this

issues, about which information is needed or appropriate, so as to enable members of freedom.

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,
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Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power, in order
that it may not be injurious to the equal right of others or those of the community or
society. [43]
 The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of another, e.g.,
obscene speech. Distinctions have therefore been made in the treatment, analysis,
and evaluation of the permissible scope of restrictions on various categories of
speech.  [44]
 We have ruled, for example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as fighting words are not entitled to constitutional
protection and may be penalized. [45]
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each category,
either consciously or unconsciously. [46] A study of free speech jurisprudencewhether
here or abroadwill reveal that courts have developed different tests as to specific
types or categories of speech in concrete situations; i.e., subversive speech; obscene
speech; the speech of the broadcast media and of the traditional print media; libelous
speech; speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech associated
with rights of assembly and petition. [47]
 
Generally, restraints on freedom of speech and expression are evaluated by
either or a combination of three tests, i.e.,  (a) the dangerous tendency
doctrinewhich permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated;  [48] (b)
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
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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 actuallyconstituted 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
censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. [61] The cast of the restriction determines the test by which the challenged act
is assayed with.
 
When the speech restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity. [62]
 Because regulations of
this type are not designed to suppress any particular message, they are not subject
to the strictest form of judicial scrutiny but an intermediate approachsomewhere
between the mere rationality that is required of any other law and the compelling
interest standard applied to content-based restrictions. [63]
 The test is
called intermediate because the Court will not merely rubberstamp the validity of a
law but also require that the restrictions be narrowly-tailored to promote an important
or significant governmental interest that is unrelated to the suppression of
expression. The intermediate approach has been formulated in this manner:
 
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the
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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.
 
or 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]
 
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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 The regimes presently in place for each type of media differ from

more than what is required to satisfy the governmental interest will be one other. Contrasted with the regime in respect of books, newspapers, magazines

invalidated.  [71]
 The regulation, therefore, must be reasonable and narrowly drawn to and traditional printed matter, broadcasting, film and video have been subjected to

fit the regulatory purpose, with the least restrictive means undertaken.  [72] regulatory schemes.

   

Thus, when the prior restraint partakes of a content-neutral regulation, it is The dichotomy between print and broadcast media traces its origins in the

subjected to an intermediate review. A content-based regulation, United States. There, broadcast radio and television have been held to
[73]
 however, bears a heavy presumption of invalidity and is measured against have limitedFirst Amendment protection,[75] and U.S. Courts

the clear and present danger rule. The latter will pass constitutional muster only have excluded broadcast media from the application of the strict scrutiny standard

if justified by a compelling reason, and the restrictions imposed are neither overbroad that they would otherwise apply to content-based restrictions. [76] According to U.S.

nor vague. [74] 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.,

Applying the foregoing, it is clear that the challenged acts in the case at bar need to airwaves are physically limited while print medium may be limitless];  [77] (b) its

be subjected to the clear and present danger rule, as they are content- pervasiveness as a medium; and (c) its unique accessibility to children. [78] Because

basedrestrictions. The acts of respondents focused solely on but one objecta cases involving broadcast media need not follow precisely the same approach that

specific content fixed as these were on the alleged taped conversations between the [U.S. courts] have applied to other media, nor go so far as to demand that such

President and a COMELEC official. Undoubtedly these did not merely provide regulations serve compelling government interests, [79] they are decided on

regulations as to the time, place or manner of the dissemination of speech or whether the governmental restriction is narrowly tailored to further a

expression. substantial governmental interest,[80] or the intermediate test.

E.5.  Dichotomy of Free Press: Print v. Broadcast  Media  

  As pointed out by respondents, Philippine jurisprudence has also echoed a

Finally, comes respondents argument that the challenged act is valid on the differentiation in treatment between broadcast and print media. Nevertheless, a

ground that broadcast media enjoys free speech rights that are lesser in scope to that review of Philippine case law on broadcast media will show thatas we have

of print media. We next explore and test the validity of this argument, insofar as it deviated with the American conception of the Bill of Rights [81] we likewise

has been invoked to validate a content-based restriction on broadcast media. did not adopt en masse the U.S. conception of free speech as it relates to
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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
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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
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media. Thus, when this Court declared in Dans  that the freedom given to broadcast
media was somewhat lesser in scope than the freedom accorded to newspaper and
print media, it was not as to what test should be applied, but the context by which
requirements of licensing, allocation of airwaves, and application of norms to
unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v.
Katigbak,[86] that the test to determine free expression challenges was the clear and
present danger, again without distinguishing the media. [87] Katigbak,  strictly speaking,
does not treat of broadcast media but motion pictures. Although the issue involved
obscenity standards as applied to movies, [88]
 the Court concluded its decision with the
following obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the
concept of obscenity applicable to motion pictures. It is the
consensus of this Court that where television is concerned, a less
liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then
will likely be among the avid viewers of the programs therein
shown..It cannot be denied though that the State as parens
patriae is called upon to manifest an attitude of caring for the
welfare of the young.
 
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the clear and
present danger rule is the test we unquestionably adhere to issues that involve
freedoms of speech and of the press.[89]
This is not to suggest, however, that the clear and present danger rule has
been applied to all cases that involve the broadcast media. The rule applies to
all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed,
in Osmena v. COMELEC,[90] which also involved broadcast media, the Court refused to
apply the clear and present danger rule to a COMELEC regulation of time and manner
of advertising of political advertisements because the challenged restriction was
content-neutral.[91] And in a case involving due process and equal protection issues,
the Court in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable
condition for the grant of the medias franchise, without going into which test would
apply.
That broadcast media is subject to a regulatory regime absent in print media is
observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative bodies,
and censorship. As explained by a British author:
 
 
The reasons behind treating broadcast and films differently from
the print media differ in a number of respects, but have a
common historical basis. The stricter system of controls seems to
have been adopted in answer to the view that owing to
their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is
now accepted that books and other printed media do not. These
media are viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of harm. [93]
Parenthetically, these justifications are now the subject of debate. Historically, the
scarcity of frequencies was thought to provide a rationale. However, cable and
satellite television have enormously increased the number of actual and potential
channels. Digital technology will further increase the number of channels available.
But still, the argument persists that broadcasting is the most influential means of
communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that
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the print media normally does not, that regulation is said to be necessary in order to This outlines the procedural map to follow in cases like the one at bar as it spells

preserve pluralism. It has been argued further that a significant main threat to free out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the

expressionin terms of diversitycomes not from government, but from private party to discharge the burden; and (e) the quantum of evidence necessary. On the

corporate bodies. These developments show a need for a reexamination of the basis of the records of the case at bar, respondents who have the burden to show

traditional notions of the scope and extent of broadcast media regulation.   [94] 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

The emergence of digital technology -- which has led to the convergence of wants to prevent is the airing of a tape recording in alleged violation of the anti-

broadcasting, telecommunications and the computer industry -- has likewise led to wiretapping law. The records of the case at bar, however, are confused and

the question of whether the regulatory model for broadcasting will continue to be confusing, and respondents evidence falls short of satisfying the clear and present
[95] 
appropriate in the converged environment. Internet, for example, remains largely danger test. Firstly, the various statements of the Press Secretary obfuscate the

unregulated, yet the Internet and the broadcast media share similarities, [96] and the identity of the voices in the tape recording. Secondly, the integrity of the taped

rationales used to support broadcast regulation apply equally to the Internet. [97]
Thus, conversation is also suspect. The Press Secretary showed to the public two versions,

it has been argued that courts, legislative bodies and the government agencies one supposed to be a complete version and the other, an altered version. Thirdly,

regulating media must agree to regulate both, regulate neither or develop a new the evidence of the respondents on the whos and the hows of the wiretapping act is

regulatory framework and rationale to justify the differential treatment.  [98] ambivalent, especially considering the tapes different versions. The identity of the

  wire-tappers, the manner of its commission and other related and relevant proofs are

F. The Case At Bar 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.

Having settled the applicable standard to content-based restrictions on broadcast  

media, let us go to its application to the case at bar. To We rule that not every violation of a law will justify straitjacketing the

recapitulate, a governmental action that restricts freedom of speech exercise of freedom of speech and of the press. Our laws are of different

or of the press based on content is given the strictest kinds and doubtless, some of them provide norms of conduct which even if violated

scrutiny, with the government having the burden of overcoming the have only an adverse effect on a persons private comfort but does not endanger

presumed unconstitutionality by the clear and present danger rule. This rule national security. There are laws of great significance but their violation, by itself

applies equally to all kinds of media, including broadcast media. 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

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 68

weighed in adjudging whether to restrain freedom of speech and of the press. official capacity is covered by the rule on prior restraint. The concept of an

The totality of the injurious effects of the violation to private and public interest act does not limit itself to acts already converted to a formal order or

must be calibrated in light of the preferred status accorded by the Constitution and by official circular. Otherwise, the non formalization of an act into an official

related international covenants protecting freedom of speech and of the press. In order or circular will result in the easy circumvention of the prohibition on

calling for a careful and calibrated measurement of the circumference of all these prior restraint. The press statements at bar are acts that should be struck down as

factors to determine compliance with the clear and present danger test, the Court they constitute impermissible forms of prior restraints on the right to free speech and

should not be misinterpreted as devaluing violations of law. By all press.

means, violations of law should be vigorously prosecuted by the State for they breed There is enough evidence of chilling effect of the complained acts on

their own evil consequence. But to repeat, the need to prevent their violation record. The warnings given to media came from no less the NTC, a regulatory

cannot per se  trump the exercise of free speech and free press, a preferred agency that can cancel the Certificate of Authority of the radio and broadcast media.

right whose breach can lead to greater evils. For this failure of the respondents They also came from the Secretary of Justice, the alter ego of the Executive, who

alone to offer proof to satisfy the clear and present danger test, the Court has no wields the awesome power to prosecute those perceived to be violating the laws of

option but to uphold the exercise of free speech and free press. There is no showing the land. After the warnings, the KBP inexplicably joined the NTC in issuing an

that the feared violation of the anti-wiretapping law clearly endangers the national ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left

security of the State. 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

This is not all the faultline in the stance of the respondents. We slide to the issue of misinterpretation. 

whether the mere press statements of the Secretary of Justice and of the NTC in The constitutional imperative for us to strike down unconstitutional acts should

question constitute a form of content-based prior restraint that has transgressed the always be exercised with care and in light of the distinct facts of each case.  For there

Constitution. In resolving this issue, we hold that it is not decisive that the press are no hard and fast rules when it comes to slippery constitutional questions, and the

statements made by respondents were not reduced in or followed up with limits and construct of relative freedoms are never set in stone. Issues revolving on

formal orders or circulars. It is sufficient that the press statements were their construct must be decided on a case to case basis, always based on the peculiar

made by respondents while in the exercise of their official functions. shapes and shadows of each case. But in cases where the challenged acts are patent

Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while invasions of a constitutionally protected right, we should be swift in striking them

the NTC issued its statement as the regulatory body of media. Any act done, such down as nullities per se. A blow too soon struck for freedom is preferred than

as a speech uttered, for and on behalf of the government in an a blow too late.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 69

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.

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.

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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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 71
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 72
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.
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.
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.
Panganiban, (Chairman), Corona, Carpio-Morales,  and Garcia, JJ.,  concur.
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EN BANC

[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.

DECISION

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 newsworthy items of information including election
surveys.

Petitioners brought this action for prohibition to enjoin the Commission on

Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 74
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 before 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 candidates 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).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC
enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before 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 the
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.
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 R.A. 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, 5.4 lays a prior restraint on freedom of speech, expression, and the
press by prohibiting the publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days immediately preceding a national
election and seven (7) days before a local election. Because of the preferred status of
the constitutional rights of speech, expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. [2] Indeed, any system of prior
restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity. . . . The Government thus carries a heavy burden of showing
justification for the enforcement of such restraint. [3] There is 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 the 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 for 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 Osmea v. COMELEC, [6] this test was originally formulated for the criminal law
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 75
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 States 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 limiting impact on the rights of free speech and of the press is not
unduly repressive or unreasonable. 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 noteworthy 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. OBrien:
[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] It is noteworthy that the OBrien 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
suppression 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 OBrien test because the causal
connection of expression to the asserted governmental interest makes such interest
not unrelated to the suppression of free expression. By prohibiting the publication of
election survey results because of the possibility that such publication might
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 76
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 makers. In effect, 5.4 shows a bias for a particular subject matter,
if not viewpoint, by preferring 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 5.4 lays on protected
speech. In 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 of 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 the 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 Osmea 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 Osmea, 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 OBrien  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,[17] the 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 the 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 resolutions may be reviewed by this Court only
by certiorari. The flaws in this argument is that it assumes that its Resolution 3636,
dated March 1, 2001 is a decision, order, or resolution within the meaning of Art. IX-
A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was rendered by
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 77

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 the COMELECs claim that this petition for prohibition is inappropriate. Prohibition
has been found appropriate for testing the constitutionality of various election laws,
rules, and regulations.[19]

WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006
and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared
unconstitutional.

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.:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 78
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 79
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  were allegedly used by Miss Policarpio for her personal use. These sheets were
Alba Probes Administrative Phase of  admitted as temporary exhibits.
Fraud Charges Against Unesco Woman 
Official; Fiscal Sets Prelim Quiz  The second witness was Federico Vergara of the Unesco who said that he received
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
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 80
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:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 81

1. A private communication made by any person to another in the Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
performance of any legal, moral or social duty; and Bengzon, C.J., is on leave.

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). SECOND DIVISION

[G.R. No. 126466. January 14, 1999]

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 ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs.
had filed the aforementioned complaints with the city fiscal's office. It, likewise, COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.
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 DECISION
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 "The question is not so much as who was aimed at as who was hit."  (Pound, J.,
sums of P3,000, by way of moral damages, and P2,000, as attorney's fees. in Corrigan v. Bobbs-Merill Co., 228 N.Y. 58  [1920]).

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.
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic
yet oft hotly contested freedoms of man, the issue of the right of free expression
bestirs and presents itself time and again, in cyclic occurrence, to inveigle, nay,
challenge the courts to re-survey its ever shifting terrain, explore and furrow its
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 82
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 83
being circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be unmasked
as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom,
Dick and Harry and to almost all government agencies. And the letterheads carried
the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out from Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the
waste basket. Now, if the 3,000 persons and agencies approached by the organizer
shelled out 1,000 each, thats easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which the
Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment license
application of the P100,000 donor.
21  June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about the
mans dubious deals. His notoriety, according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.x x x
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.x x x
Friends in government and the private sector have promised the Jaywalker more
'dope' on the 'organizer.' It seems that he was not only indiscreet; he even failed to
cover his tracks. You will be hearing more of the 'organizers' exploits from this corner
soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading
his wings too far. A congressional source has informed the Jaywalker that the
schemer once worked for a congressman from the North as some sort of a consultant
on economic affairs. The first thing the organizer did was to initiate hearings and
round-the-table discussions with people from the business, export and -- his favorite
-- the garments sector. x x x
The 'organizers' principal gamely went along, thinking that his 'consultant' had
nothing but the good of these sectors in mind. It was only later that he realized that
the 'consultant' was acting with a burst of energy 'in aid of extortion.' The
'consultant' was fired. x x x
There seems to be no end to what a man could do to pursue his dubious ways. He
has tried to operate under a guise of a well-meaning reformist. He has intellectual
pretensions - and sometimes he succeeds in getting his thoughts in the inside pages
of some newspapers, with the aid of some naive newspaper people. He has been
turning out a lot of funny-looking advice on investments, export growth, and the like.
xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the
Cabinet man might not get his wish. There is one 'organizer' who, even if physically
banned, can still concoct ways of doing his thing. Without a tinge of remorse, the
'organizer' could fill up his letterheads with names of Cabinet members,
congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in the affair were mostly leaders of jeepney
drivers groups. None of the government officials involved in regulating public
transportation was there. The big names in the industry also did not participate. With
such a poor attendance, one wonders why the conference organizers went ahead
with the affair and tried so hard to convince 3,000 companies and individuals to
contribute to the affair. x x x
The conference was doomed from the start. It was bound to fail. The personalities
who count in the field of transportation refused to attend the affair or withdrew their
support after finding out the background of the organizer of the conference. How
could a conference on transportation succeed without the participation of the big
names in the industry and government policy-makers?
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 84
Private respondent reacted to the articles. He sent a letter to The Philippine
Star  insisting that he was the organizer alluded to in petitioner Borjals columns. [4] In a
subsequent letter to The Philippine Star, private respondent refuted the matters
contained in petitioner Borjals columns and openly challenged him in this manner -
To test if Borjal has the guts to back up his holier than thou attitude, I am
prepared to relinquish this position in case it is found that I have misappropriated
even one peso of FNCLT money. On the other hand, if I can prove that Borjal has
used his column as a hammer to get clients for his PR Firm, AA Borjal Associates, he
should resign from the STAR and never again write a column. Is it a deal?[5]
Thereafter, private respondent filed a complaint with the National Press Club
(NPC) against petitioner Borjal for unethical conduct. He accused petitioner Borjal of
using his column as a form of leverage to obtain contracts for his public relations
firm, AA Borjal Associates.[6] In turn, petitioner Borjal published a rejoinder to the
challenge of private respondent not only to protect his name and honor but also to
refute the claim that he was using his column for character assassination. [7]
Apparently not satisfied with his complaint with the NPC, private respondent
filed a criminal case for libel against petitioners Borjal and Soliven, among
others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor
handling the case dismissed the complaint for insufficiency of evidence. The dismissal
was sustained by the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil
action for damages based on libel subject of the instant case. [8] In their answer,
petitioners interposed compulsory counterclaims for actual, moral and exemplary
damages, plus attorneys fees and costs. After due consideration, the trial court
decided in favor of private respondent Wenceslao and ordered petitioners Borjal and
Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory
damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorneys fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo  but reduced the
amount of the monetary award to P110,000.00 actual damages, P200,000.00 moral
damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision
promulgated 25 March 1996, the appellate court ruled inter alia that private
respondent was sufficiently identifiable, although not named, in the questioned
articles; that private respondent was in fact defamed by petitioner Borjal by
describing him variously as a "self-proclaimed hero," "a conference organizer
associated with shady dealswho has a lot of trash tucked inside his closet," "thick
face," and "a person with dubious ways;" that petitioners claim of privilege
communication was unavailing since the privileged character of the articles was lost
by their publication in a newspaper of general circulation; that petitioner could have
performed his office as a newspaperman without necessarily transgressing the rights
of Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the univocal
indorsement of the responsible government officials, or simply informing the public of
the letters Wenceslao wrote and the favors he requested or demanded; and, that
when he imputed dishonesty, falsehood and misrepresentation, shamelessness and
intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line
that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate
courts decision which reduced the amount of damages awarded him by filing with this
Court a Petition for Extension of Time to File Petition  and a Motion for Suspension of
Time to File Petition.[9] However, in a Resolution dated 27 May 1996, the Second
Division denied both motions: the first, for being premature, and the second, for
being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the
present case to the Second Division, there was no longer any case thereat with which
to consolidate this case since G.R. No. 124396 had already been disposed of by the
Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of
Appeals denied the motion in its Resolution of 12 September 1996. Hence the instant
petition for review. The petitioners contend that the Court of Appeals erred: (a) in
ruling that private respondent Wenceslao was sufficiently identified by petitioner
Borjal in the questioned articles; (b) in refusing to accord serious consideration to the
findings of the Department of Justice and the Office of the President that private
respondent Wenceslao was not sufficiently identified in the questioned articles, this
notwithstanding that the degree of proof required in a preliminary investigation is
merely prima facie  evidence which is significantly less than the preponderance of
evidence required in civil cases; (c) in ruling that the subject articles do not constitute
qualifiedly privileged communication; (d) in refusing to apply the "public official
doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned
articles lost their privileged character because of their publication in a newspaper of
general circulation; (f) in ruling that private respondent has a valid cause of action for
libel against petitioners although he failed to prove actual malice on their part, and
that the prosecutors of the City of Manila, the Department of Justice, and eventually,
the Office of the President, had already resolved that there was no sufficient evidence
to prove the existence of libel; and, (g) assuming arguendo that Borjal should be held
liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray
for the reversal of the appellate courts ruling, the dismissal of the complaint against
them for lack of merit, and the award of damages on their counterclaim.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 85
The petition is impressed with merit. In order to maintain a libel suit, it is
essential that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person could
identify him as the object of the libelous publication.[10] Regrettably, these requisites
have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column
writings sufficiently identified Wenceslao as the "conference organizer." It cited the
First National Conference on Land Transportation, the letterheads used listing
different telephone numbers, the donation of P100,000.00 from Juliano Lim and the
reference to the "organizer of the conference" - the very same appellation employed
in all the column items - as having sufficiently established the identity of private
respondent Wenceslao for those who knew about the FNCLT who were present at its
inception, and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at
hand. The questioned articles written by Borjal do not identify private respondent
Wenceslao as the organizer of the conference. The first of the Jaywalker  articles
which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to
indicate that private respondent was the person referred to therein. Surely, as
observed by petitioners, there were millions of "heroes" of the EDSA Revolution and
anyone of them could be "self-proclaimed" or an "organizer of seminars and
conferences."As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote
about the "so-called First National Conference on Land Transportation whose principal
organizers are not specified" (italics supplied).[11] Neither did the FNCLT
letterheads[12] disclose the identity of the conference organizer since these contained
only an enumeration of names where private respondent Francisco Wenceslao was
described as Executive Director and Spokesman and not as a conference organizer.
[13] 
The printout[14] and tentative program[15] of the conference were devoid of any
indication of Wenceslao as organizer. The printout which contained an article
entitled "Who Organized the NCLT?" did not even mention private respondent's
name, while the tentative program only denominated private respondent as "Vice
Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT
had several organizers and that he was only a part of the organization, thus -
I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings.[16]
Significantly, private respondent himself entertained doubt that he was the
person spoken of in Borjal's columns. The former even called up columnist Borjal to
inquire if he (Wenceslao) was the one referred to in the subject articles. [17] His letter
to the editor published in the 4 June 1989 issue of The Philippine Star even showed
private respondent Wenceslao's uncertainty -
Although he used a subterfuge, I was almost certain that Art Borjal referred to the
First National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column x x x[18]
Identification is grossly inadequate when even the alleged offended party is
himself unsure that he was the object of the verbal attack. It is well to note that the
revelation of the identity of the person alluded to came not from petitioner Borjal but
from private respondent himself when he supplied the information through his 4 June
1989 letter to the editor. Had private respondent not revealed that he was the
"organizer" of the FNCLT referred to in the Borjal articles, the public would have
remained in blissful ignorance of his identity. It is therefore clear that on the element
of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that
private respondent has been sufficiently identified as the subject of Borjal's disputed
comments, we now proceed to resolve the other issues and pass upon the pertinent
findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary
question of whether the disputed articles constitute privileged communications as to
exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition
that his articles are privileged in character under the provisions of Art. 354 of The
Revised Penal Code which state -
Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it
is shown, except in the following cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 86
Respondent court explained that the writings in question did not fall under any
of the exceptions described in the above-quoted article since these were neither
"private communications" nor"fair and true report x x x without any comments or
remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are not actionable
even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of
the 1987 Constitution which exempts a member of Congress from liability for any
speech or debate in the Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention or justifiable
motive. To this genre belong "private communications" and "fair and true report
without any comments or remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions
of Art. 354 of The Revised Penal Code  for, as correctly observed by the appellate
court, they are neitherprivate communications nor fair and true report without any
comments or remarks. However this does not necessarily mean that they are not
privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis
not in the nation's penal code but in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the press. [19] As early as 1918, in United
States v. Caete,[20] this Court ruled that publications which are privileged for reasons
of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of the
legislature to give it express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the
press. As held in Elizalde v. Gutierrez [21] and reiterated in Santos v. Court of
Appeals[22] -
To be more specific, no culpability could be imputed to petitioners for the
alleged offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: Public policy, the welfare of society, and the orderly administration
of government have demanded protection of public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.
The doctrine formulated in these two (2) cases resonates the rule that
privileged communications must, sui generis,  be protective of public opinion. This
closely adheres to the democratic theory of free speech as essential to collective self-
determination and eschews the strictly libertarian view that it is protective solely of
self- expression which, in the words of Yale Sterling Professor Owen Fiss, [23] makes its
appeal to the individualistic ethos that so dominates our popular and political
culture. It is therefore clear that the restrictive interpretation vested by the Court of
Appeals on the penal provision exempting from liability only private communications
and fair and true report without comments or remarks defeats, rather than promotes,
the objective of the rule on privileged communications, sadly contriving as it does, to
suppress the healthy effloresence of public debate and opinion as shining linchpins of
truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and
constitute a valid defense in an action for libel or slander. The doctrine of fair
comment means that while in general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is
not necessarily actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of opinion, based on
established facts, then it is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts. [24]
There is no denying that the questioned articles dealt with matters of public
interest. In his testimony, private respondent spelled out the objectives of the
conference thus -
x x x x The principal conference objective is to come up with a draft of an Omnibus
Bill that will embody a long term land transportation policy for presentation to
Congress in its next regular session in July. Since last January, the National
Conference on Land Transportation (NCLT), the conference secretariat, has been
enlisting support from all sectors to ensure the success of the project. [25]
Private respondent likewise testified that the FNCLT was raising funds through
solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in
this seminar of the First National Conference
on Land Transportation, you will need around One million eight hundred
fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants.[26]
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 87
The declared objective of the conference, the composition of its members and
participants, and the manner by which it was intended to be funded no doubt lend to
its activities as being genuinely imbued with public interest. An organization such as
the FNCLT aiming to reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large cannot dissociate
itself from the public character of its mission. As such, it cannot but invite close
scrutiny by the media obliged to inform the public of the legitimacy of the purpose of
the activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan[27] which the
appellate court failed to consider or, for that matter, to heed. It insisted that private
respondent was not, properly speaking, a "public offical" nor a "public figure," which
is why the defamatory imputations against him had nothing to do with his task of
organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the
1960s at the height of the bloody rioting in the American South over racial
segregation. The then City Commissioner L. B. Sullivan of Montgomery, Alabama,
sued New York Times  for publishing a paid political advertisement espousing racial
equality and describing police atrocities committed against students inside a college
campus. As commissioner having charge over police actions Sullivan felt that he was
sufficiently identified in the ad as the perpetrator of the outrage; consequently, he
sued New York Times on the basis of what he believed were libelous utterances
against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr.
ruled against Sullivan holding that honest criticisms on the conduct of public officials
and public figures are insulated from libel judgments. The guarantees of freedom of
speech and press prohibit a public official or public figure from recovering damages
for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would-be critics would be deterred
from voicing out their criticisms even if such were believed to be true, or were in fact
true, because of doubt whether it could be proved or because of fear of the expense
of having to prove it.[28]
In the present case, we deem private respondent a public figure within the
purview of the New York Times ruling. At any rate, we have also defined "public
figure" in Ayers Production Pty., Ltd. v. Capulong[29] as -
x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his
affairs and his character, has become a public personage. He is, in other words, a
celebrity. Obviously, to be included in this category are those who have achieved
some degree of reputation by appearing before the public, as in the case of an actor,
a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a
personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone
who has arrived at a position where the public attention is focused upon him as a
person.
The FNCLT was an undertaking infused with public interest. It was promoted as
a joint project of the government and the private sector, and organized by top
government officials and prominent businessmen. For this reason, it attracted media
mileage and drew public attention not only to the conference itself but to the
personalities behind as well. As its Executive Director and spokesman, private
respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the
position he occupied in the FNCLT, would not qualify as a public figure, it does not
necessarily follow that he could not validly be the subject of a public comment even if
he was not a public official or at least a public figure, for he could be, as long as he
was involved in a public issue. If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose to become
involved. The publics primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect and significance of the conduct, not
the participant's prior anonymity or notoriety.[30]
There is no denying that the questioned articles dealt with matters of public
interest. A reading of the imputations of petitioner Borjal against respondent
Wenceslao shows that all these necessarily bore upon the latter's official conduct and
his moral and mental fitness as Executive Director of the FNCLT. The nature and
functions of his position which included solicitation of funds, dissemination of
information about the FNCLT in order to generate interest in the conference, and the
management and coordination of the various activities of the conference demanded
from him utmost honesty, integrity and competence. These are matters about which
the public has the right to be informed, taking into account the very public character
of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language
employed describing the "organizer of the conference." One is tempted to wonder if it
was by some mischievous gambit that he would also dare test the limits of the "wild
blue yonder" of free speech in this jurisdiction. But no matter how intemperate or
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 88
deprecatory the utterances appear to be, the privilege is not to be defeated nor
rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York
Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide
open, and that it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on the government and public officials.[31]
The Court of Appeals concluded that since malice is always presumed in the
publication of defamatory matters in the absence of proof to the contrary, the
question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from
defamatory words, the privileged character of a communication destroys the
presumption of malice. [32] The onus of proving actual malice then lies on plaintiff,
private respondent Wenceslao herein. He must bring home to the defendant,
petitioner Borjal herein, the existence of malice as the true motive of his conduct. [33]
Malice connotes ill will or spite and speaks not in response to duty but merely to
injure the reputation of the person defamed, and implies an intention to do ulterior
and unjustifiable harm.[34] Malice is bad faith or bad motive. [35] It is the essence of the
crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and
publishing the articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence
that petitioner was animated by a desire to inflict unjustifiable harm on his
reputation, or that the articles were written and published without good motives or
justifiable ends. On the other hand, we find petitioner Borjal to have acted in good
faith. Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he perceived to be a
public deception. Surely, we cannot begrudge him for that. Every citizen has the right
to enjoy a good name and reputation, but we do not consider that petitioner Borjal
has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be
shown to have been written or published with the knowledge that they are false or in
reckless disregard of whether they are false or not.[37] "Reckless disregard of what is
false or not" means that the defendant entertains serious doubt as to the truth of the
publication,[38] or that he possesses a high degree of awareness of their probable
falsity.[39]
The articles subject of the instant case can hardly be said to have been written
with knowledge that these are false or in reckless disregard of what is false or
not. This is not to say however that the very serious allegations of petitioner Borjal
assumed by private respondent to be directed against him are true. But we
nevertheless find these at least to have been based on reasonable grounds formed
after the columnist conducted several personal interviews and after considering the
varied documentary evidence provided him by his sources. Thus, the following are
supported by documentary evidence: (a) that private respondent requested Gloria
Macapagal-Arroyo, then head of the Garments and Textile Export Board (GTEB), to
expedite the processing and release of the import approval and certificate of
availability of a garment firm in exchange for the monetary contribution of Juliano
Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining
the procedure of the GTEB in processing applications and clarifying that all applicants
were treated equally;[40] (b) that Antonio Periquet was designated Chairman of the
Executive Committee of the FNCLT notwithstanding that he had previously declined
the offer;[41] and, (c) that despite the fact that then President Aquino and her
Secretary of Transportation Rainerio Reyes declined the invitation to be guest
speakers in the conference, their names were still included in the printout of the
FNCLT.[42] Added to these are the admissions of private respondent that: (a) he
assisted Juliano Lim in his application for a quota allocation with the GTEB in
exchange for monetary contributions to the FNCLT;[43] (b) he included the name of
then Secretary of Transportation Rainerio Reyes in the promotional materials of the
conference notwithstanding the latter's refusal to lend his name to and participate in
the FNCLT;[44] and, (c) he used different letterheads and telephone numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy
or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There
must be some room for misstatement of fact as well as for misjudgment.  Only by
giving them much leeway and tolerance can they courageously and effectively
function as critical agencies in our democracy. [46] In Bulletin Publishing Corp. v.
Noel[47] we held -
A newspaper especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with
minimum fear of being hauled to court by one group or another on criminal or civil
charges for libel, so long as the newspaper respects and keeps within the standards
of morality and civility prevailing within the general community.
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 89

At any rate, it may be salutary for private respondent to ponder upon the advice
of Mr. Justice Malcolm expressed in U.S. v. Bustos,[48]  that "the interest of society and
the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound may be assuaged by the balm of a clear conscience. A public official must not
be too thin-skinned with reference to comments upon his official acts.
The foregoing disposition renders the second and seventh assigned errors moot
and academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners
of the high ethical standards attached to and demanded by their noble
profession. The danger of an unbridled irrational exercise of the right of free speech
and press, that is, in utter contempt of the rights of others and in willful disregard of
the cumbrous responsibilities inherent in it, is the eventual self-destruction of the
right and the regression of human society into a veritable Hobbesian state of nature
where life is short, nasty and brutish. Therefore, to recognize that there can be no
absolute "unrestraint" in speech is to truly comprehend the quintessence of freedom
in the marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others.If there is freedom of the press, ought there not also
be freedom from the press? It is in this sense that self-regulation as distinguished
from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has
warned, "[W]ithout x x x a lively sense of responsibility, a free press may readily
become a powerful instrument of injustice."[49]
meant to impose a penalty on the right to litigate, nor should counsels fees be
awarded every time a party wins a suit.[51]
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] -
Every man has a right to discuss matters of public interest. A clergyman with his
flock, an admiral with his fleet, a general with his army, a judge with his jury, we are,
all of us, the subject of public discussion. The view of our court has been thus
stated: It is only in despotisms that one must speak sub rosa, or in whispers, with
bated breath, around the corner, or in the dark on asubject touching the common
welfare. It is the brightest jewel in the crown of the law to speak and maintain the
golden mean between defamation, on one hand, and a healthy and robust right of
free public discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
of 25 March 1996 and its Resolution of 12 September 1996 denying reconsideration
are REVERSED and SET ASIDE, and the complaint for damages against petitioners is
DISMISSED. Petitioners counterclaim for damages is likewise DISMISSED for lack of
merit. No costs.
SO ORDERED.
Puno, Martinez,  and Buena, JJ.,  concur.
Mendoza, J., in the result.

Lest we be misconstrued, this is not to diminish nor constrict that space in

which expression freely flourishes and operates. For we have always strongly
maintained, as we do now, that freedom of expression is man's birthright -
constitutionally protected and guaranteed, and that it has become the singular role of
the press to act as its "defensor fidei" in a democratic society such as ours. But it is
also worth keeping in mind that the press is the servant, not the master, of the
citizenry, and its freedom does not carry with it an unrestricted hunting license to
prey on the ordinary citizen.[50]
On petitioners counterclaim for damages, we find the evidence too meager to
sustain any award. Indeed, private respondent cannot be said to have instituted the THIRD DIVISION
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 [G.R. No. 113216. September 5, 1997]
harassing petitioners, thereby entitling the latter to damages. On the contrary, private
RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON.
respondent acted within his rights to protect his honor from what he perceived to be
MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of
malicious imputations against him. Proof and motive that the institution of the action
RTC, Quezon City, respondents.
was prompted by a sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could not have
DECISION
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 90
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of
lack of probable cause based on a resolution of the secretary of justice, the bounden
duty of the trial court is to make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial court is not bound by
such resolution but is required to evaluate it before proceeding further with the
trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court,
however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on proceeding
with the trial on the mere pretext of having already acquired jurisdiction over the
criminal action.
This principle is explained in this Decision resolving a petition for review
on certiorari of the Decision[1] of the Court of Appeals,[2] promulgated on September
14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional
Trial Court of Quezon City denying the prosecutions withdrawal of a criminal
information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr.
against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City
Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-
affidavit to the complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on
July 6, 1992 an Information for libel against petitioner with the Regional Trial Court of
Quezon City, Branch 104.[3] The Information filed by Assistant City Prosecutor
Augustine A. Vestil reads: [4]
That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director
of Philippine Heart Center, East Avenue, this city, and furnished the same to other
officers of the said hospital, said letter containing slanderous and defamatory remarks
against DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear
Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to
January 31, 1991.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in
Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective
January 31, 1991, amounting to at least P100,000.00 for the year 1990
alone. Records in the Nuclear Medicine Section will show that from January 1989 to
January 1991, a total of 2,308 patients were seen. Of these, I had officially
supervised, processed, and interpreted approximately a total of 1,551 cases as
against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres
respectively.
Until my resignation I had received a monthly share of professional fees averaging
P1,116.90/month supposedly representing 20% of the total monthly professional
fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was
never any agreement between us three consultants that this should be the
arrangement and I am certain that this was not with your approval. The burden of
unfairness would have been lesser if there was an equal distribution of labor and the
schedule of duties were strictly followed. As it was, the schedule of duties submitted
monthly to the office of the Asst. Director for Medical Services was simply a dummy
to comply with administrative requirements rather than a guideline for strict
compliance. Both consultants have complete daily time records even if they did not
come regularly. Dr. Torres came for an hour every week, Dr. Monzon came
sporadically during the week while I was left with everything from training the
residents and supervising the Techs to processing and interpreting the results on a
regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 91
In the interest of fairness and to set a precedent for the protection of future PHC
Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman
conditions I went through as a Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of
professional fees in this Section. At this point, let me stress that since professional
fees vary according to the type of procedure done and since there was no equity of
labor between us I am not settling for an equal percentage share. I demand that I be
indemnified of all professional fees due me on a case to case basis.
Let me make clear my intention of pursuing this matter legally should there be no
favorable action in my behalf. Let me state at this point6 that the actions of Dr.
Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly
violating the code of ethics of the medical profession and the Philippine Civil Service
Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well
knew, the same are entirely false and untrue but were publicly made for no other
purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby
casting dishonor, discredit and contempt upon the person of the said offended party,
to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was
filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as
amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the
Quezon City prosecutor to move for deferment of further proceedings and to elevate
the entire records of the case.[5] Accordingly, a Motion to Defer Arraignment dated
September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.
[6]
 On September 9, 1992, the trial court granted the motion and deferred petitioners
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 petitioners arraignment on January 18,
1993 at two oclock in the afternoon.[9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon
reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling
read:[10]
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 respondents righteous disposition of following the rule of law and is a
clear indication that her purpose was to seek relief from the proper higher authority
who is the 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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 92

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.
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;

Petitioners motion for reconsideration[13] was denied by the trial judge in the
Order dated March 5, 1993, as follows:[14]
6. It deprives a person of his constitutional right to procedural due process;
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 7. Its application may constitute or lead to denial of equal protection of laws;
by the accused through counsel is hereby denied.
8. It deprives the secretary of justice or the president of the power to control or
Aggrieved, petitioner filed a petition for certiorari and prohibition with the review the acts of a subordinate official;
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, 9. It will lead to, encourage, abet or promote abuse or even corruption among the
paragraph 1 of B.P. 129.[15] ranks of investigating fiscals;
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 10. It does not subserve the purposes of a preliminary investigation because -
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 (10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases
discretion of the trial court.[16] where the investigating fiscal recommends no bail for the accused;
Hence, this recourse to this Court.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 93
(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 courts denial of the prosecutions Motion to
Withdraw Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the
affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address
a procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on
July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals
to the Supreme Court, provided:
SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the
assignment of errors made in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement of
the errors committed by the Court of Appeals, not of the trial court. For failure to
follow this Rule, the petition could have been dismissed by this Court motu proprio,
considering that under Section 4 of the same Rule, review is not a matter of right but
of sound discretion.
We take this occasion to stress the need for precision and clarity in the
assignment of errors. Review under this rule is unlike an appeal in a criminal case
where the death penalty, reclusin perpetua or life imprisonment is imposed and
where the whole case is opened for review. Under Rule 45, only the issues raised
therein by the petitioner will be passed upon by the Court, such that an erroneous
specification of the issues may cause the dismissal of the petition. We stressed this in
Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of
Appeals and to the Supreme Court, as follows:
4. Erroneous Appeals. x x x x
e) Duty of counsel.It is therefore incumbent upon every attorney who would seek
review of a judgment or order promulgated against his client to make sure of the
nature of the errors he proposes to assign, whether these be of fact or of law; then
upon such basis to ascertain carefully which Court has appellate jurisdiction; and
finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware
that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters
raised decided to overlook petitioners lapse and granted due course to the petition
per Resolution dated July 15, 1996, with a warning that henceforth petitions which
fail to specify an assignment of errors of the proper lower court may be denied due
course motu proprio  by this Court.
Determination of Probable Cause Is an Executive Function
The determination of probable cause during a preliminary investigation is
judicially recognized as an executive function and is made by the prosecutor. The
primary objective of a preliminary investigation is to free a respondent from the
inconvenience, expense, ignominy and stress of defending himself/herself in the
course of a formal trial, until the reasonable probability of his or her guilt has been
passed upon in a more or less summary proceeding by a competent officer
designated by law for that purpose.Secondarily, such summary proceeding also
protects the state from the burden of unnecessary expense and effort in prosecuting
alleged offenses and in holding trials arising from false, frivolous or groundless
charges.[18]
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 94
Such investigation is not a part of the trial. A full and exhaustive presentation of
the parties evidence is not required, but only such as may engender a well-grounded
belief that an offense has been committed and that the accused is probably guilty
thereof.[19] By reason of the abbreviated nature of preliminary investigations, a
dismissal of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished
the determination of probable cause for the issuance of a warrant of arrest or a
search warrant from a preliminary investigation proper in this wise: [20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from a preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. xxx The determination of probable cause for the warrant of arrest is made
by the Judge. The preliminary investigation proper--whether xxx there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore,
whether xxx he should be subjected to the expense, rigors and embarrassment of
trial--is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecutors job.The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts. The Separate
Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of
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]
x x x x The Courts cannot interfere with the fiscals discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to compel the
fiscal to prosecute a proceeding originally initiated by him on an information, if he
finds that the evidence relied upon by him is insufficient for conviction. Neither has
the Court any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscals discretion and control
of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the same
commit no error. The fiscal may re-investigate a case and subsequently move for the
dismissal should the re-investigation show either that the defendant is innocent or
that his guilt may not be established beyond reasonable doubt. In a clash of views
between the judge who did not investigate and the fiscal who did, or between the
fiscal and the offended party or the defendant, those of the fiscals should normally
prevail. x x x x.
Appeal as an Exercise of the Justice Secretarys Power of Control Over
Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary of
justice who, under the Revised Administrative Code, exercises the power of direct
control and supervision over said prosecutors; and who may thus affirm, nullify,
reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title
III of the Code gives the secretary of justice supervision and control over the Office
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 95
of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of
his power of supervision and control is delineated in Section 38, paragraph 1, Chapter
7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and
Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may
be assigned to them by the Secretary of Justice in the interest of public service.
xxx xxx xxx
Section 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a chief
of bureau, office, division or service, the same shall be understood as also conferred
upon the proper Department Head who shall have authority to act directly in
pursuance thereof, or to review, modify, or revoke any decision or action of said chief
of bureau, office, division or service.
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 secretarys power of review may still be availed of despite the filing
of an information in court. In his discretion, the secretary may affirm, modify or
reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as
amended,[27] specifically in Section 1 (d):
(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or
the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the
latter may, where he finds that no prima facie case exists, authorize and direct the
investigating fiscal concerned or any other fiscal or state prosecutor to cause or move
for the dismissal of the case, or, where he finds a prima facie case, to cause the filing
of an information in court against the respondent, based on the same sworn
statements or evidence submitted without the necessity of conducting another
preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated
January 25, 1990 governing appeals in preliminary investigation. Appeals under
Section 2 are limited to resolutions dismissing a criminal complaint. However, Section
4 provides an exception: appeals from resolutions finding probable cause upon a
showing of manifest error or grave abuse of discretion are allowed, provided the
accused has not been arraigned. In the present case, petitioners appeal to the
secretary of justice was given due course on August 26, 1992 pursuant to this
Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No.
223; however, the scope of appealable cases remained unchanged:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 96
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty
prescribed for the offense charged does not exceed prisin correccional,  regardless of
the imposable fine, shall be made to the Regional State Prosecutors who shall resolve
the appeals with finality, pursuant to Department Order No. 318 dated August 28,
1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August
11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be
governed by these rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of manifest error or grave
abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x
appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of
review of the secretary of justice is recognized also by Section 4 of Rule 112 of the
Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.
This appeal rests upon the sound discretion of the secretary of justice arising
from his power of supervision and control over the prosecuting arm of the
government, not on a substantial right on the part of the accused as claimed by
petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment and
further proceedings until the appeal is resolved. Such deferment or suspension,
however, does not signify that the trial court is ipso facto  bound by the resolution of
the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost
despite a resolution by the secretary of justice to withdraw the information or to
dismiss the case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to
settle actual controversies involving rights which are legally demandable and
enforceable.Such power includes the determination of whether there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.[28] Under this definition, a court is
without power to directly decide matters over which full discretionary authority has
been delegated to the legislative or executive branch of the government. It is not
empowered to substitute its judgment for that of Congress or of the President.  It
may, however, look into the question of whether such exercise has been made in
grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority
over them or a derogation of their functions. In the words of Justice Laurel in Angara
vs. Electoral Commission:[29]
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not
in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument sources and guarantees to them. This is
in truth all that is involved in what is termed judicial supremacy which properly is the
power of the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the
secretary of justice to review the decisions of the government prosecutors under
him. In Crespo, the secretary was merely advised to restrict such review to
exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which
recognizes such power, does not, however, allow the trial court to automatically
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 97
dismiss the case or grant the withdrawal of the information upon the resolution of the
secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs.
Court of Appeals[30]  and the recent case of Roberts, Jr. vs. Court of Appeals,  which all
required the trial court to make its own evaluation of the merits of the case, because
granting the motion to dismiss or to withdraw the information is equivalent to
effecting a disposition of the case itself.
The Marcelo and Martinez Cases Are Consistent
In Marcelo vs. Court of Appeals,[31]  this Court ruled that, although it is more
prudent to wait for a final resolution of a motion for review or reinvestigation from
the secretary of justice before acting on a motion to dismiss or a motion to withdraw
an information, a trial court nonetheless should make its own study and evaluation of
said motion and not rely merely on the awaited action of the secretary. The trial court
has the option to grant or deny the motion to dismiss the case filed by the fiscal,
whether before or after the arraignment of the accused, and whether after a
reinvestigation or upon instructions of the secretary who reviewed the records of the
investigation; provided that such grant or denial is made from its own assessment
and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals, [32]  this Court overruled the grant of the motion
to dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of
justice because such grant was based upon considerations other than the judges own
assessment of the matter. Relying solely on the conclusion of the prosecution to the
effect that there was no sufficient evidence against the accused to sustain the
allegation in the information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo  that a final resolution of the appeal to
the Department of Justice is necessary, both decisions followed the rule in  Crespo vs.
Mogul:Once a complaint or information is filed in court, any disposition of the case
such as its dismissal or its continuation rests on the sound discretion of the
court. Trial judges are thus required to make their own assessment of whether the
secretary of justice committed grave abuse of discretion in granting or denying the
appeal, separately and independently of the prosecutions or the secretarys evaluation
that such evidence is insufficient or that no probable cause to hold the accused for
trial exists. They should embody such assessment in their written order disposing of
the motion.
The above-mentioned cases depict two extreme cases in complying with this
rule. In Marcelo, the dismissal of the criminal action upon the favorable
recommendation of the Review Committee, Office of the City Prosecutor, was
precipitate in view of the pendency of private complainants appeal to the secretary of
justice. In effect, the secretarys opinion was totally disregarded by the trial court. In
contrast, in Martinez  the dismissal of the criminal action was an erroneous exercise of
judicial discretion as the trial court relied hook, line and sinker on the resolution of
the secretary, without making its own independent determination of the merits of the
said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of Justice
In the light of recent holdings in Marcelo  and Martinez; and considering that the
issue of the correctness of the justice secretarys resolution has been amply threshed
out in petitioners letter, the information, the resolution of the secretary of justice, the
motion to dismiss, and even the exhaustive discussion in the motion for
reconsideration all of which were submitted to the court -- the trial judge committed
grave abuse of discretion when it denied the motion to withdraw the information,
based solely on his bare and ambiguous reliance on Crespo. The trial courts order is
inconsistent with our repetitive calls for an independent and competent assessment of
the issue(s) presented in the motion to dismiss. The trial judge was tasked to
evaluate the secretarys recommendation finding the absence of probable cause to
hold petitioner criminally liable for libel. He failed to do so. He merely ruled to
proceed with the trial without stating his reasons for disregarding the secretarys
recommendation.
Had he complied with his judicial obligation, he would have discovered that
there was, in fact, sufficient ground to grant the motion to withdraw the
information. The documents before the trial court judge clearly showed that there
was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court
would normally remand the case to the trial judge for his or her independent
assessment of the motion to withdraw the information. However, in order not to
delay the disposition of this case and to afford the parties complete relief, we have
decided to make directly the independent assessment the trial court should have
done. The petitioner has attached as annexes to the present petition for review the
information, which contains a complete and faithful reproduction of the subject letter,
the resolution of the secretary of justice, the prosecutions motion for reconsideration
of the trial courts Order of February 22, 1993, and even the private complainants
opposition to said motion. The records below have been reproduced and submitted to
this Court for its appreciation. Thus, a remand to the trial court serves no purpose
and will only clog the dockets.
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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, petitioners letter was written to seek redress of
proper grievance against the inaccurate distribution and payment of professional fees
and against unfair treatment in the Nuclear Medicine Department of the Philippine
Heart Center. It is a qualified privileged communication under Article 354(1) of the
Revised Penal Code which provides:
ART. 354. Requirement of publicity.  -- Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of
any legal, moral or social duty; and
xxx xxx xxx
The rule on privileged communication is that a communication made in good
faith on any subject matter in which the communicator has an interest, or concerning
which he has a duty, is privileged if made to a person having a corresponding interest
or duty, although it contains incriminatory matter which, without the privilege, would
be libelous and actionable. Petitioners letter was a private communication made in
the performance of a moral duty on her part. Her intention was not to inflict an
unjustifiable harm on the private complainant, but to present her grievance to her
superior. The privileged nature of her letter overcomes the presumption of
malice. There is no malice when justifiable motive exists; and in the absence of
malice, there is no libel. We note that the information itself failed to allege the
existence of malice.
Thus, we agree with the ruling of the secretary of justice:[34]
x x x (T)he subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the unjust and
unfair treatment that Dr. Ledesma was getting from government employees, and the
subject letter is a complaint x x x on a subject matter in which respondent has an
interest and in reference to which she has a duty to question the same is definitely
privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455,
the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a
communication made in good faith upon any subject matter in which the party
making the communication has an interest or concerning which he has a duty is
privileged although it contains incriminatory or derogatory matter which, without the
privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a
direct evidence of respondents righteous disposition of following the rule of law and is
a clear indication that her purpose was to seek relief from the proper higher authority
xxx.
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 mans reputation is not the good
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 99

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
petitioners administrative action against him.

Ineluctably, Judge Asuncions denial of the motion to withdraw the information

and the reconsideration thereof was not only precipitate but manifestly
erroneous. This is further compounded by the fact that he did not explain his grounds
for his denial inasmuch as he did not make an independent assessment of the motion
or the arguments in the resolution of the secretary of justice. All in all, such rash
action did not do justice to the sound ruling in Crespo vs. Mogul upon which,
ironically, he supposedly rested his action, or to the directive
in Marcelo  and Martinez  where this Court required trial courts to make an
independent assessment of the merits of the motion.

WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The

Motion to Withdraw the Information dated February 17, 1993 filed before the trial
court is GRANTED. No costs.

SO ORDERED.

Davide, Jr., Melo,  and Francisco, JJ.,  concur.

Narvasa C.J., no part: Close relation to a party:
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 100
SECOND DIVISION
[G.R. No. 139987. March 31, 2005]
SALVADOR D. FLOR, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari seeking to reverse the Decision of
the Court of Appeals in CA-G.R. CR Nos. 11577 and 33204 [1] which affirmed the joint
decision of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur, in
Criminal Case No. P-1855 convicting the petitioner and Nick Ramos [2] for libel and Civil
Case No. P-1672 awarding damages in favor of the private complainant, former
Governor of Camarines Sur and Minister of the Presidential Commission on
Government Reorganization Luis R. Villafuerte.
The facts are not disputed.
An information for libel was filed before the RTC, Branch 20, Naga City, against
the petitioner and Ramos who were then the managing editor and correspondent,
respectively, of the Bicol Forum, a local weekly newspaper circulated in the Bicol
Region. The information reads as follows:
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:
VILLAFUERTES DENIAL CONVINCES NO ONE
NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government
money for his trips to Japan and Israel two weeks ago has failed to
convince people in Camarines Sur, reliable sources said.
What the people know, the sources said, is that the two trips of the governor who is
also the minister of the Government Reorganization Commission was purely junket.
This was confirmed when capitol sources disclosed that about P700,000.00 collected
by way of cash advances by ranking provincial officials were allegedly used for the
two trips.
The cash advances, the sources said, were made at the instance of Villafuerte.
It was learned that the amount was withdrawn without resolution approving its
release.
Villarfuerte however said that he spent his own money for the two trips.
The governor was accompanied abroad by political supporters mostly municipal
mayors in Camarines Sur, the report said.
This was contested by several individuals who told Bicol Forum that the members of
Villafuertes entourage did not have official functions in the province.
Villafuerte and his companions reportedly attended the 1986 baseball games in
Japan.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 101
When in truth and in fact said allegations are false and utterly untrue as the
complainant has not done such acts, thus embarrassing, discrediting and ridiculing
him before his friends, followers and other people.[3]
The information was later amended to include Jose Burgos, Jr., who was at that
time the publisher-editor of the Bicol Forum. [4] The trial court, however, never
acquired jurisdiction over his person as he did not surrender nor was he ever arrested
by the authorities.
It appears from the records that prior to the filing of the criminal complaint, the
private complainant had already instituted a separate civil action for damages arising
out of the questioned news article before the RTC, Branch 23, Naga City. Due to this,
the criminal suit for libel was ordered consolidated with the civil case pursuant to
Article 360 of the Revised Penal Code, as amended. [5] Subsequently, the consolidated
actions were transferred to RTC, Branch 33, Pili, Camarines Sur, in accordance with
Republic Act No. 4363 which outlines the venue of libel cases in the event that the
offended party is a public official such as in this case. [6] Thereafter, a joint trial of the
cases ensued with accused Burgos, Jr., being declared as in default in the civil case
due to his failure to attend its pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty. [7]
During the trial, the private complainant himself took the witness stand to refute
the statements contained in the subject news article. According to him, there were
previous news reports and broadcasts regarding the cash advances allegedly made by
some provincial government officials of Camarines Sur and that it was also reported
that he made a trip to Japan which was branded as a mere junket. [8] The private
complainant, however, explained that after he clarified over the radio that he never
went to Japan, the issue was never discussed again until the matter was included in
the questioned news item.[9] As for the cash advances, the private complainant stated
that the Provincial Auditor and the Budget Officer had already made a statement to
the effect that he had no pending cash advances. [10] Further, the private complainant
clarified that he made his trip to Israel in his capacity as a cabinet member of former
President Corazon C. Aquino and that he spent his own money for the said official trip
thereby debunking Bicol Forums report that his travel to Israel was purely a junket.
[11]
 The private complainant also complained that no one from the Bicol Forum made
any attempt to get his side of the story nor was he aware of any effort exerted by the
representatives of said publication to confirm the veracity of the contents of the
subject news article from any source at the provincial capitol. [12] Finally, the private
complainant took exception to the banner headline which states Villafuertes Denial
Convinces No One. According to him, the Bicol Forum seemed to be making a
mockery of his previous explanations regarding the cash advances and his trips
abroad and such a sweeping statement subjected him to public ridicule and
humiliation.[13]
On the other hand, Ramos testified that he wrote the questioned news item on
the basis of a note given to him by a source whom he refused to identify. [14] Said
source was allegedly connected with the Provincial Treasurers Office. [15] The note
reads:
Media consultants of Villafuerte specially DWLV announcers had been announcing the
travels of Villafuerte to Israel and Japan without spending a single centavo. This is
unbelievable as lately the Gov. said he [spent] his own money for the trips.
No one will believe this. The governor and party went to Israel and Japan as there
were some P700,000.00 cash advances collected in form of advances by top
provincial officials for the trips. No [doubt] Villafuerte had a hand on this because he
is the governor approving cash advances. Among them were Panes and Maceda.
There were no resolution, please publish this that people concern will react and they
be forced to account for the money. Authenticated papers will follow. Bulls eye ito.
capr[16]
Ramos likewise alleged that prior to writing the subject news article, he went to
his source to ask some clarificatory questions and was told that he would be given
authenticated records of the cash advances. Later, he was given a copy of the
Schedule of Cash Advances of Disbursing Officers and Other Officers (as of June 30
1987).[17]Among the provincial government officials listed therein were the private
respondent who had a 1986 balance of P25,000.00 incurred for cultural activities;
Atty. Jose Maceda who also had a 1986 balance of P130,084.00 for sports
development, Operation Smile, NAMCYA Festival, and prisoners subsistence; and
Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000 for the
purpose of sports development. Ramos also claimed that when he went to the
Provincial Treasurers Office to conduct his investigation, he was shown some
vouchers and was told that many of the members of the baseball delegation to Japan
were not elected provincial officials and, in fact, some mayors and private individuals
were sent as part of the Philippine group.[18]
During his turn at the witness stand, the petitioner admitted that the headline
was written by him in his capacity as the managing editor [19] in accordance with the
policy of their paper to print as headlines matters dealing with public concerns and
public officials.[20] According to him, the banner headline and the sub-headline
truthfully reflect the substance of the story prepared by Ramos. [21]
After the trial, the court a quo rendered a joint decision the dispositive portion
of which reads:
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IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:
In Criminal Case No. P-1855
Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt
of the crime of Libel defined and punished under Article 353 in connection with Article
355 of the Revised Penal Code and they are each sentenced to pay a fine of Two
Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency; and
to pay the costs of suit.
In Civil Case No. P-1672
Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay
jointly and severally to the plaintiff the following:
1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral
damages;
2. The amount of Five Thousand Pesos (P5,000.00) as exemplary
damages;
3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and
to pay the costs of suit.[22]
Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an
appeal with the Court of Appeals which affirmed the judgment of the trial court
through its decision dated 10 December 1996. [23] They thereafter filed a motion for
reconsideration[24] which was denied for lack of merit by the appellate court in its
resolution of 19 August 1999.[25]
In upholding the conclusion reached by the trial court, the Court of Appeals
ratiocinated, thus:
The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte
who made the trips abroad using government money as there were cash advances of
P700,000.00 made by top provincial officials, without first having verified the truth
about the matters contained in his report. The imputation became malicious when
they are based on mere conjectures. The alleged libelous article must be construed
as a whole. The effect of the news item upon the minds of the readers must be
considered in the prosecution of libel cases. The words used in the news report tends
to impute a criminal act on the governor which may cause the readers to hold him up
to public ridicule and induce them to believe that the governor was indeed guilty. The
accused editor admitted that he did not make any personal investigation as to the
truth of the statements made in the report. When such communication was sent for
publication, the so-called privilege was destroyed when malice in fact was present. [26]
In fine, the sole issue brought for the consideration of this Court is whether the
questioned news item is libelous. We reverse.
Libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural person or juridical
person, or to blacken the memory of one who is dead. [27] Any of these imputations is
defamatory and under the general rule stated in Article 354 of the Revised Penal
Code, every defamatory imputation is presumed to be malicious. [28] The presumption
of malice, however, does not exist in the following instances:
1. A private communication made by any person to another in the performance of
any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative, or other official proceedings which are not of confidential
nature, or of any statement, report, or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions. [29]
The law recognizes two kinds of privileged matters. First are those which are
classified as absolutely privileged which enjoy immunity from libel suits regardless of
the existence of malice in fact. Included herein are statements made in official
proceedings of the legislature by the members thereof. [30] Likewise, statements made
in the course of judicial proceedings are absolutely privileged but only if pertinent or
relevant to the case involved.[31]
The other kind of privileged matters are the qualifiedly or conditionally
privileged communications which, unlike the first classification, may be susceptible to
a finding of libel provided the prosecution establishes the presence of malice in fact.
The exceptions provided for in Article 354 of the Revised Penal Code fall into this
category.
In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that
the enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is
rendered more expansive by the constitutional guarantee of freedom of the press,
thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of public interest are
likewise privileged. The rule on privileged communications had its genesis not in the
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 103
nations 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. Caete [38 Phil. 253],
this Court ruled that publications which are privileged for reasons of public policy are
protected by the constitutional guaranty of freedom of speech. This constitutional
right cannot be abolished by the mere failure of the legislature to give it express
recognition in the statute punishing libels.[33]
Clearly, when confronted with libel cases involving publications which deal with
public officials and the discharge of their official functions, this Court is not confined
within the wordings of the libel statute; rather, the case should likewise be examined
under the constitutional precept of freedom of the press. As enunciated in the
seminal case of United States v. Bustos[34] -
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted. Of
course, criticism does not authorize defamation. Nevertheless, as the individual is less
than the State, so must expected criticism be born for the common good. Rising
superior to any official, or set of officials, to the Chief Executive, to the Legislature, to
the Judiciary to any or all the agencies of Government public opinion should be the
constant source of liberty and democracy.[35]
Of course, this does not mean that a public official is barred from recovering
damages in cases involving defamations. His entitlement, however, is limited to
instances when the defamatory statement was made with actual malice that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.
[36]
 This is the test laid down in the leading case of New York Times Co. v. Sullivan.[37]
In the case at bar, the Office of the Solicitor General (OSG) argues that the
purported libelous news item was designed to malign the integrity and reputation of
the [private complainant] for it ascribed to the latter corruption and dishonesty in
government service.[38] Moreover, the OSG maintains that the questioned news article
does not enjoy the mantle of protection afforded a privileged matter as the petitioner
and Ramos published the news item based on mere speculation and conjecture.
[39]
 Their decision to publish the unverified information furnished them by the
unnamed source, who was never presented before the trial court, and their failure to
verify the truth of statements which appeared under the banner headline of the 18-
24 August 1986 issue of the Bicol Forum indicates that the news item was published
intemperately and maliciously.[40] The OSG is therefore of the opinion that the subject
news item satisfied the test pronounced in the New York Times case. We do not
agree.
As the US Supreme Court itself declared, reckless disregard cannot be fully
encompassed in one infallible definition. Inevitably its outer limits will be marked out
through case-by-case adjudication.[41] The case of Garrison v. State of
Louisiana[42] stressed that only those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times may be the subject
of either civil or criminal sanctions [43] and concluded by restating the reckless
disregard standard in the following manner:
. . . The test which we laid down in New York Times is not keyed to ordinary care;
defeasance of the privilege is conditioned, not on mere negligence, but on reckless
disregard for the truth.[44]
Subsequently, in St. Amant v. Thompson[45] it was stated that
. . . 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
respondents travels abroad. The information was provided by one who worked in the
provincial treasurers 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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 104
Slight unintentional errors, however, will be excused. If a writer in the course of
temperate and legitimate criticism falls into error as to some detail, or draws an
incorrect inference from the facts before him, and thus goes beyond the limits of
strict truth, such inaccuracies will not cause judgment to go against him, if the jury
are satisfied, after reading the whole publication, that it was written honestly, fairly
and with regard to what truth and justice require. It is not to be expected that a
public journalist will always be infallible. [47]
During the hearing of these cases, the private complainant also refuted the
material points contained in the subject news article in an effort to prove the falsity of
the allegations contained therein. This Court finds such effort inadequate to adjudge
the petitioner guilty of the crime of libel or to entitle the private respondent to
damages. Under the New York Times test, false statements alone are not actionable;
maliciousness may be shown only through knowledge of falsity or reckless disregard
of truth or falsity.[48]
Further, both the prosecution and the OSG make capital of Ramos and the
petitioners failure to confirm the information supplied by the unidentified source
which ultimately became the basis for the news article under consideration in an
obvious attempt to establish the element of reckless disregard for truth. The
prosecution also painstakingly tried to establish malice in fact on the part of the
petitioner by harping on the fact that neither he nor Ramos took the time to give the
private respondent the chance to air his side before putting the alleged libelous news
story to print.
The contention fails to persuade.
While substantiation of the facts supplied is an important reporting standard,
still, a reporter may rely on information given by a lone source although it reflects
only one side of the story provided the reporter does not entertain a high degree of
awareness of [its] probable falsity.[49] The prosecution, in this case, utterly failed to
prove that the petitioner and Ramos entertained such awareness.
We also hold that the petitioners and Ramoss failure to present their informant
before the court as well as other evidence that would prove Ramos claim that he had
conducted an investigation to verify the information passed on to him should not be
taken against them. On this point, we turn to our pronouncement in the case
of Rodolfo R. Vasquez v. Court of Appeals, et al.,[50] to wit:
A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations
would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all,
infringe on the constitutionally guaranteed freedom of expression. Such a rule would
deter citizens from performing their duties as members of a self-governing
community. Without free speech and assembly, discussions of our most abiding
concerns as a nation would be stifled. As Justice Brandeis has said, public discussion
is a political duty and the greatest menace to freedom is an inert people. [51]
Indeed, the difficulty of producing evidence, both documentary and testimonial,
on behalf of the petitioner was readily 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 treasurers office, it is
understandable why he opted not to expose himself and openly charge his superior,
the private complainant herein, lest he incur the latters 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 respondents 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.
Puno, (Chairman), Austria-Martinez, Callejo, Sr.,  and Tinga, JJ.,  concur.
 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 105

December 13, 2005

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

DECISION
 

CHICO-NAZARIO, J.:

For almost a century, this Court has sought that elusive equilibrium between the law

on defamation on one hand, and the constitutionally guaranteed freedoms of speech

SECOND DIVISION
  and press on the other. This case revisits that search.
PHILIPPINE JOURNALISTS, INC. (PEOPLES   G.R. No. 143372
JOURNAL), ZACARIAS NUGUID, JR. and    On 30 September 1990, the following news item appeared in the Peoples Journal, a
CRISTINA LEE, P e t i t i o n e r s, Present:
  tabloid of general circulation:
   
   
- versus - PUNO,
  Chairman, Swiss Shoots Neighbors Pets
  AUSTRIA-MARTINEZ,
   
CALLEJO, SR.,
FRANCIS THOENEN, RESIDENTS of a subdivision in Paraaque have asked the Bureau of
TINGA, and Immigration to deport a Swiss who allegedly shoots wayward
R e s p o n d e n t. neighbors pets that he finds in his domain.
CHICO-NAZARIO, JJ.

   

Promulgated: The BF Homes residents through lawyer Atty. Efren Angara

complained that the deportation of Francis Thoenen, of 10 Calcutta
  BF Homes Phase III, could help prevent the recurrence of such
incident in the future.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 106

 
The petitioners admitted publication of the news item, ostensibly out of a social and
Angara explained that house owners could not control their dogs
and cats when they slip out of their dwellings unnoticed. 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

An alleged confrontation between Thoenen and the owner of a pet published in good faith and without malice.[2]
he shot recently threatens to exacerbate the problem, Angara said.
 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
Cristina Le 
Deportation (CID, now Bureau of Immigration), which states:
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
Dear Madame:
report was false and defamatory, and that the petitioners acted irresponsibly in failing
 
to verify the truth of the same prior to publication, he filed a civil case for damages
We would like to request your office to verify the true
against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its status/authenticity of the residency in the Philippines of a
publisher, and reporter Cristina Lee. 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
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in up. He is too meticulous and had ( sic) been shooting dogs and
cats passing his house wall everytime.
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
Such act which (sic) is unacceptable to the owners
his reputation and standing in the community, and his mental anguish, Thoenen especially if inspite (sic) of control their pets slips ( sic) out
unnoticed. A confrontation between him and the owner of the
sought P200,000.00 in moral damages, P100,000.00 in exemplary damages,
dog he shoot, (sic) already occurred last time. In some
and P50,000.00 in attorneys fees. 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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 107
(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.
 
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 108
As noted by the Court of Appeals in Marti(r)ez vs. Alanao,
CA-G.R No. 27086, September 30, 1991, which is similar to the
present case:
 
While indeed, the news item subject of
the present case might have ruffled the
sensitivities of plaintiff, this Court however
believes that the alleged defamatory articles falls
within the purview of a qualifiedly privileged
matter, and that therefore, it cannot be
presumed to be malicious. The onus of proving
malice is accordingly shifted to the plaintiff, that
is, that he must prove that the defendants were
actuated by ill-will in what they caused to be
printed and published, with a design to carelessly
or wantonly injure the plaintiff. (US vs. Bustos, et
al., 37 Phil. 731)
 
This, plaintiff failed to do, consequently, his case must fall.
 
The publication in question is a privileged communication
protected by the freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED
WITHOUT PRONOUNCEMENT AS TO COSTS.[12]
 On appeal, the court a quo  reversed[13] the trial court. It  
held that although freedom of expression and the right of speech
and of the press are among the most zealously guarded in the
Constitution, still, in the exercise of these rights, Article 19 of the
Civil Code requires everyone to act with justice, give everyone his
due, and observe honesty and good faith. The appellate court
emphasized that Thoenen was neither a public official nor a public
figure, and thus,  
. . . [E]ven without malice on the part of defendants-appellees, the
news item published in the 30 September 1990 edition of Peoples
Journal had been done in violation of the principle of abuse of right
under Article 19 of the Civil Code, in the absence of a bona fide
effort to ascertain the truth thereof, i.e., to observe honesty and
good faith, which makes their act a wrongful omission. Neither did
they act with justice and give everyone his due, because without
ascertaining the veracity of the information given them by the
Intelligence Bureau of the Bureau of Immigration, they published a
news article which they were aware would bring the person
specifically named therein, viz, Francis Thoenen, the plaintiff-
appellant in this case, into disrepute.
.
WHEREFORE, the foregoing considered, the Decision
appealed from is hereby REVERSED and SET ASIDE. In its stead,
We find for the appellant and award him moral damages
of P200,000.00; exemplary damages of P50,000.00, and legal fees
to P30,000.00; all of which shall be borne jointly and severally by
appellees.[14] 
 
Petitioners motion for reconsideration having been denied,
 this petition for certiorari under Rule 45 of the 1997 Rules of
[15]
Civil Procedure was filed on the following grounds:
1.       The Court of Appeals erred in finding the petitioners Cristina
Lee, Nuguid and PJI liable under Article 19 of the Civil Code.
2.       The Court of Appeals erred in finding the petitioners liable
for libel even if the article was based on a letter released by
the Bureau of Immigration, hence a qualified privilege
communication.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 109

3.       The Court of Appeals erred in concluding that petitioners did

not ascertain the truth of the subject news item. 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

4.       The Court of Appeals erred in awarding damages expression, or of the press, or the right of the people peaceably to assemble and
notwithstanding that the same was excessive unconscionable
petition the government for redress of grievances.
and devoid of any basis.

But not all speech is protected. The right of free speech is not absolute at all
The petitioners argue that this case is one for damages arising from libel,
times and under all circumstances. There are certain well-defined and narrowly
and not one for abuse of rights under the New Civil Code. They further claim the
limited classes of speech, the prevention and punishment of which has never been
constitutional protections extended by the freedom of speech and of the press clause
thought to raise any Constitutional problem. These include the lewd and obscene, the
of the 1987 Constitution against liability for libel, claiming that the article was
profane, the libelous, and the insulting or fighting words - those which by their very
published in fulfillment of its social and moral duty to inform the public on matters of
utterance inflict injury or tend to incite an immediate breach of the peace. It has
general interest, promote the public good and protect the moral [fabric] of the
been well observed that such utterances are no essential part of any exposition of
people.[16] They insist that the news article was based on a letter released by the
ideas, and are of such slight social value as a step to truth that any benefit that may
Bureau of Immigration, and is thus a qualifiedly privileged communication. To recover
be derived from them is clearly outweighed by the social interest in order and
damages, the respondent must prove its publication was attended by actual malice
morality. [19]
- that is, with knowledge that it was false or with reckless disregard of whether it was

false or not.[17] Libel is not proteced 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

For the reasons stated below, we hold that the constitutional privilege
imaginary, or any act, omission, condition, status, or circumstance tending to cause
granted under the freedom of speech and the press against liability for damages does
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
not extend to the petitioners in this case.
memory of one who is dead.
The freedom of speech and of the press is not absolute.  The freedom of
For an imputation to be libelous, the following requisites must be met: (a)
speech and press and assembly, first laid down by President McKinley in the
the allegation of a discreditable act or condition concerning another; (b) publication
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

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 110

exercise of their functions. ( citations

of the charge; (c) identity of the person defamed; and (d) existence of malice. omitted, emphasis supplied) 
[20]
 In Vasquez v. Court of Appeals,[21] we had occasion to further explain. Thus:
In this case, there is no controversy as to the existence of the three
An allegation is considered defamatory if it ascribes to a
person the commission of a crime, the possession of a vice or elements. The respondents name and address were clearly indicated in the article
defect, real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in ascribing to him the questionable practice of shooting the wayward pets of his
contempt, or which tends to blacken the memory of one who is
neighbors. The backlash caused by the publication of the article was in fact such that
dead.
stones had been thrown at their house, breaking several flower pots, and daily and
There is publication if the material is communicated to a third
person. It is not required that the person defamed has read or nightly calls compelled him to request a change of their telephone number. [22] These
heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for a mans facts are not contested by the petitioners. What the petitioners claim is the absence
reputation is the estimate in which others hold him, not the good
opinion which he has of himself. of proof of the fourth element - malice.

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
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 111
the groundbreaking case of US v. Bustos,[23] where we applied the prevailing English
and American jurisprudence to the effect that:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses
of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course,
criticism does not authorize defamation. Nevertheless, as the
individual is less than the State, so must expected criticism be born
for the common good? Rising superior to any official, or set of
officials, to the Chief Executive, to the Legislature, to the Judiciary -
to any or all the agencies of Government - public opinion should be
the constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the
orderly administration of government inevitably lead to the adoption of the doctrine
of privileged communication. A privileged communication may be either
absolutely privileged or qualifiedly privileged. Absolutely privileged communications
are those which are not actionable even if the author has acted in bad faith. An
example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a
member of Congress from liability for any speech or debate in the Congress or in any
Committee thereof. Upon the other hand, qualifiedly privileged communications
containing defamatory imputations are not actionable unless found to have been
made without good intention or justifiable motive. To this genre belong private
communications and fair and true report without any comments or remarks. [24]
The appellate court correctly ruled that the petitioners story is not privileged
in character, for it is neither private communication nor a fair and true report without
any comments or remarks.
US v. Bustos  defined the concept of private communication thus:
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which he has a duty, is privileged,
if made to a person having a corresponding interest or duty, although it contained
criminatory matter which without this privilege would be slanderous and actionable. A
pertinent illustration of the application of qualified privilege is a complaint made in
good faith and without malice in regard to the character or conduct of a public
official  when addressed to an officer or a board having some interest or duty in the
matter.[25]
This defense is unavailing to petitioners. In Daez v. Court of Appeals [26] we
held that:
As a rule, it is the right and duty of a citizen to make a
complaint of any misconduct on the part of public officials, which
comes to his notice, to those charged with supervision over them.
Such a communication is qualifiedly privileged and the author is not
guilty of libel. The rule on privilege, however, imposes an additional
requirement. Such complaints should be addressed solely to some
official having jurisdiction to inquire into the charges, or power to
redress the grievance or has some duty to perform or interest in
connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious
Atty. Angara is privileged communication, it lost its character as such when the
matter was published in the newspaper and circulated among the general population.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 112

A written letter containing libelous matter cannot be classified as privileged when it is Welch, Inc.,[29] that a newspaper or broadcaster publishing defamatory falsehoods

published and circulated in public,[27] which was what the petitioners did in this case. 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

Neither is the news item a fair and true report without any comments or
falsehood arose in a discussion of public interest.[30]
remarks of any judicial, legislative or other official proceedings; there is in fact no

proceeding to speak of. Nor is the article related to any act performed by public Having established that the article cannot be considered as privileged

officers in the exercise of their functions, for it concerns only false imputations communication, malice is therefore presumed, and the fourth requisite for the

against Thoenen, a private individual seeking a quiet life. imputation of libel to attach to the petitioners in this case is met. The news article is

therefore defamatory and is not within the realm of protected speech. There is no
The petitioners also claim to have made the report out of a social and moral
longer a need to discuss the other assignment of errors, save for the amount of
duty to inform the public on matters of general interest.
damages to which respondent is entitled.
In Borjal v. Court of Appeals, we stated that the enumeration under Art. 354
In Policarpio v. Manila Times Publishing Co., Inc .,[31] we awarded damages
is not an exclusive list of qualifiedly privileged communications since fair
where the defendants deliberately presented a private individual in a worse light that
commentaries on matters of public interest are likewise privileged. We stated
what she actually was, and where other factual errors were not prevented although
that the doctrine of fair commentaries means that while in general every discreditable
defendants had the means to ascertain the veracity of their report. Such are the facts
imputation publicly made is deemed false, because every man is presumed innocent
obtaining here.
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 We must point out that Lees brief news item contained falsehoods on two

his public capacity, it is not necessarily actionable. In order that such discreditable levels. On its face, her statement that residents of BF Homes had asked the Bureau of

imputation to a public official may be actionable, it must either be a false allegation of Immigration to deport a Swiss who allegedly shoots neighbors pets is patently untrue

fact or a comment based on a false supposition. [28] since the letter of the spurious Atty. Angara was a mere request for verification of

Thoenens status as a foreign resident. Lees article, moreover, is also untrue, in that
Again, this argument is unavailing to the petitioners. As we said, the
the events she reported never happened. The respondent had never shot any of his
respondent is a private individual, and not a public official or public figure. We are
neighbors pets, no complaints had been lodged against him by his neighbors, and no
persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 113

deportation proceedings had been initiated against him. Worse, the author of Lees basic concept of the essential dignity and worth of every human being a concept at

main source of information, Atty. Efren Angara, apparently either does not exist, or is the root of any decent system of ordered liberty. [36]

not a lawyer. Petitioner Lee would have been enlightened on substantially all these
The appellate court awarded Thoenen moral damages of P200,000.00,
matters had she but tried to contact either Angara or Thoenen.
exemplary damages of P50,000.00 and legal fees of P30,000.00, to be borne jointly

Although it has been stressed that a newspaper should not be held to and severally by the herein petitioners. In Guevarra v. Almario,[37] we noted that the

account to a point of suppression for honest  mistakes, or imperfection in the choice damages in a libel case must depend upon the facts of the particular case and the

of words,[32] even the most liberal view of free speech has never countenanced the sound discretion of the court, although appellate courts were more likely to reduce

publication of falsehoods, especially the persistent and unmitigated dissemination of damages for libel than to increase them.[38] So it is in this case.

patent lies.[33] There is no constitutional value in false statements of fact. Neither the

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000
intentional lie nor the careless error materially advances societys interest in
reversing the Decision of the Regional Trial Court, Branch 62, Makati City, of 31
uninhibited, robust, and wide-open debate. [34] The use of the known lie as a tool is at
August 1994 is hereby AFFIRMED, subject to the modification that petitioners are
once at odds with the premises of democratic government and with the orderly
ordered to pay, jointly and severally, moral damages in the sum of P100,000.00,
manner in which economic, social, or political change is to be effected. Calculated
exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.
falsehood falls into that class of utterances which are no essential part of any

exposition of ideas, and are of such slight social value as a step to truth that any SO ORDERED.
benefit that may be derived from them is clearly outweighed by the social interest in

order and morality The knowingly false statement and the false statement made with

reckless disregard of the truth, do not enjoy constitutional protection (citations

omitted).[35]

The legitimate state interest underlying the law of libel is the compensation

of the individuals for the harm inflicted upon them by defamatory falsehood. After all,

the individuals right to protection of his own good name reflects no more than our
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 114

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

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 115
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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 116
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,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 117

whether the absence or presence of artists and persons interested in art and who their exhibition. The pictures in the magazine exhibited indecent and
generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, immoral scenes and acts…The exhibition of the sexual act in their magazines
determine what art is; or that if they find inspiration in the exhibitions, whether such is but a clear and unmitigated obscenity, indecency and an offense to public
exhibitions cease to be obscene.23 Go Pin  and Padan y Alova  gave too much latitude morals, inspiring…lust and lewdness, exerting a corrupting influence
for judicial arbitrament, which has permitted ad lib  of ideas and "two-cents worths" especially on the youth. (Citations omitted)
among judges as to what is obscene or what is art. 24
The VHS tapes also [exhibit] nude men and women doing the sexual
The Court in Pita  also  emphasized the difficulty of the question and pointed out how intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog
hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle as the actress shows the naked body of the actress. The tape exhibited
questions on the matter. Significantly, the dynamism of human civilization does not indecent and immoral scenes and acts. Her dancing movements excited the
help at all. It is evident that individual tastes develop, adapt to wide-ranging sexual instinct of her male audience. The motive may be innocent, but the
influences, and keep in step with the rapid advance of civilization. 25 It seems futile at performance was revolting and shocking to good minds...
this point to formulate a perfect definition of obscenity that shall apply in all cases.
In one (1) case the Supreme Court ruled:
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 Since the persons who went to see those pictures and paid
person, applying contemporary standards would find the work, taken as a whole, entrance fees were usually not artists or persons interested in art to
appeals to the prurient interest; (b) whether the work depicts or describes, in a satisfy and inspire their artistic tastes but persons who are desirous
patently offensive way, sexual conduct specifically defined by the applicable state of satisfying their morbid curiosity, taste and lust and for [love] of
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, excitement, including the youth who because of their immaturity
political, or scientific value.26 But, it would be a serious misreading of Miller  to are not in a position to resist and shield themselves from the ill and
conclude that the trier of facts has the unbridled discretion in determining what is perverting effects of the pictures, the display of such pictures for
"patently offensive."27 No one will be subject to prosecution for the sale or exposure commercial purposes is a violation of Art. 201. If those pictures
of obscene materials unless these materials depict or describe patently offensive were shown in art exhibits and art galleries for the cause of art, to
"hard core" sexual conduct.28 Examples included (a) patently offensive be viewed and appreciated by people interested in art, there would
representations or descriptions of ultimate sexual acts, normal or perverted, actual or be no offense committed (People vs. Go Pin, 97 Phil 418).
simulated; and (b) patently offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals.29 What remains clear is that
[B]ut this is not so in this case.30
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.
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
In this case, the trial court found the confiscated materials obscene and the Court of
the evidence on record or the judgment itself is based on misapprehension of
Appeals affirmed such findings. The trial court in ruling that the confiscated materials
facts.31 In this case, petitioners neither presented contrary evidence nor questioned
are obscene, reasoned as follows:
the trial court’s findings. There is also no showing that the trial court, in finding the
materials obscene, was arbitrary.
Are the magazines and VHS tapes confiscated by the raiding team obscene
or offensive to morals? . . .
Did petitioners participate in the distribution and exhibition of obscene materials?

Pictures of men and women in the nude doing the sexual act appearing in
We emphasize that mere possession of obscene materials, without intention to sell,
the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank,
exhibit, or give them away, is not punishable under Article 201, considering the
Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to
purpose of the law is to prohibit the dissemination of obscene materials to the public.
morals and are made and shown not for the sake of art but rather for
The offense in any of the forms under Article 201 is committed only when there is
commercial purposes, that is gain and profit as the exclusive consideration in
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 118
publicity.32The law does not require that a person be caught in the act of selling,
giving away or exhibiting obscene materials to be liable, for as long as the said
materials are offered for sale, displayed or exhibited to the public. In the present
case, we find that petitioners are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando
Music Fair, named after petitioner Fernando.33 The mayor’s permit was under his
name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the
mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the
store.35 While the mayor’s permit had already expired, it does not negate the fact that
Fernando owned and operated the establishment. It would be absurd to make his
failure to renew his business permit and illegal operation a shield from prosecution of
an unlawful act. Furthermore, when he preferred not to present contrary evidence,
the things which he possessed were presumptively his. 36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in
selling and exhibiting the obscene materials. Prosecution witness Police Inspector
Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as
the store attendant upon whom the search warrant was served. 37 Tababan had no
motive for testifying falsely against Estorninos and we uphold the presumption of
regularity in the performance of his duties. Lastly, this Court accords great respect to
and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings. 38 In our view,
no reversible error was committed by the appellate court as well as the trial court in
finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated
September 2, 2003, of the Court of Appeals affirming the Decision of the Regional
Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.
SO ORDERED.
Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ.,  concur.
[G.R. No. L-31687. February 26, 1970.]
NAVARRO v. VILLEGAS.
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;
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 119
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
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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.
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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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 122
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
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Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, EN BANC
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 G.R. No. L-62270 May 21, 1984
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
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO
unconstitutional application of such ordinance to the exercise of the right of
LEONERO, and JUNE LEE, petitioners, 
peaceable assembly presents itself. As in this case there was no proof that the
vs.
distance is less than 500 feet, the need to pass on that issue was obviated, Should it
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director
come, then the qualification and observation of Justices Makasiar and Plana certainly
of the National Capital Region of the Ministry of Education, Culture and
cannot be summarily brushed aside. The high estate accorded the rights to free
Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR
speech and peaceable assembly demands nothing less.
MIJARES, in his capacity as the President of the Gregorio Araneta
University Foundation, GONZALO DEL ROSARIO, in his capacity as the
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the Director for Academic Affairs of the Gregorio Araneta University
modification of the permit sought and order the respondent official, to grant it. Foundation; TOMAS B. MESINA, in his capacity as the Dean of Student
Nonetheless, as there was urgency in this case, the proposed march and rally being Affairs of the Gregorio Araneta University Foundation; ATTY. LEONARDO
scheduled for the next day after the hearing, this Court. in the exercise of its PADILLA, in his capacity as Chief Legal Counsel & Security Supervisor of
conceded authority, granted the mandatory injunction in the resolution of October 25, the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY,
1983. It may be noted that the peaceful character of the peace march and rally on ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members
October 26 was not marred by any untoward incident. So it has been in other of the Ad Hoc Committee of the Gregorio Araneta University
assemblies held elsewhere. It is quite reassuring such that both on the part of the Foundation, respondents.
national government and the citizens, reason and moderation have prevailed. That is
as it should be.
Honesto N. Salcedo for petitioners.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ.,
concur.

FERNANDO, CJ.:
De Castro, J, is on leave.

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.
Republic of the Philippines
SUPREME COURT The facts are not open to dispute. Petitioners were officers of the Supreme Student
Manila 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,
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1982. Pursuant to such permit, along with other students, they held a general provisions of the Manual of Regulations for Private Schools and the Revised Student's
assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), the Code of Discipline .and ordering their suspension for one (1) academic school year.
place indicated in such permit, not in the basketball court as therein stated but at the However, since said suspension has not been enforced except only briefly, thereby
second floor lobby. At such gathering they manifested in vehement and vigorous enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and
language their opposition to the proposed merger of the Institute of Animal Science allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this
with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward proceeding is now moot and academic. 5
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 With the submission of such comments considered as the answers of public and
severely critical of the University authorities and using megaphones in the process. private respondents, the case was ready for decision.
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.
This petition may be considered moot and academic if viewed solely from the fact
They were asked to explain on the same day why they should not be held liable for
that by virtue of the temporary restraining order issued by this Court petitioners were
holding an illegal assembly. Then on September 9, 1982, they were formed through a
allowed to enroll in the ensuing semester, with three of them doing so and with the
memorandum that they were under preventive suspension for their failure to explain
other two equally entitled to do so. Moreover, there is the added circumstance of
the holding of an illegal assembly in front of the Life Science Building. The validity
more than a year having passed since October 20, 1982 when respondent Ramento
thereof was challenged by petitioners both before the Court of First Instance of Rizal
issued the challenged decision suspending them for one year. Nonetheless, with its
in a petition for mandamus with damages against private respondents 2 and before
validity having been put in issue, for being violative of the constitutional rights of
the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent
freedom of peaceable assembly and free speech, there is need to pass squarely on
Ramento, as Director of the National Capital Region, found petitioners guilty of the
the question raised.
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 This Court accordingly rules that respect for the constitutional rights of peaceable
defamation. The penalty was suspension for one academic year. Hence this petition. 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
On November 16, 1982, this Court issued the following resolution: "Acting on the
the time allowed. Undeniably too, they did disturb the classes and caused the work of
urgent ex-parte  motion for the immediate issuance of a temporary mandatory order
the non-academic personnel to be left undone. Such undesirable consequence could
filed by counsel for petitioners, dated November 12, 1982, the Court Resolved to
have been avoided by their holding the assembly in the basketball court as indicated
ISSUE A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person
in the permit. Nonetheless, suspending them for one year is out of proportion to their
or persons acting in their place or stead from enforcing the order of the Ministry of'
misdeed. The petition must be granted and the decision of respondent Ramento
Education and Culture dated October 20, 1982 finding the petitioners guilty of the
nullified, a much lesser penalty being appropriate.
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, 1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the
thus allowing them to enroll, if so minded. 3 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
Both public and private respondents submitted their comments. Private respondents
truthfully, any matter of public interest without censorship or punishment and which
prayed for the dismissal of the petition "for lack of factual and legal basis and likewise
"is not to be limited, much less denied, except on a showing ... of a clear and present
[prayed] for the lifting of the temporary restraining order dated November 16,
danger of a substantive evil that the state has a right to prevent." 7
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 2. In the above case, a permit was sought to hold a peaceful march and rally from
MECS did not commit any error, much less abused his discretion, when he affirmed the Luneta public park to the gates of the united States Embassy, hardly two blocks
the decision of respondent University finding petitioners guilty of violations of the 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
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 125
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
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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.
Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.
Aquino, Concepcion, Jr., and De Castro, JJ., took no part.
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BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP

TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER
BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA,
MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners, vs.  EXECUTIVE SECRETARY RONALDO ZAMORA,
FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE
PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR
BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL

B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON
A. GONZALES, petitioners, vs.  HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO MERCADO, as Secretary of
National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary
of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA

III, petitioners, vs.  JOSEPH E. ESTRADA, RONALDO B. ZAMORA,
DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National

President, Jose Aguila Grapilon, petitioners, vs.  JOSEPH EJERCITO
ESTRADA, in his capacity as President, Republic of the Philippines,
and HON. DOMINGO SIAZON, in his capacity as Secretary of
Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA,
ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I.
DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C.
RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF
G.R. No. 138570. October 10, 2000] ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 128
INC. (MABINI), petitioners, vs.  THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR
BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION,
AND INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for
certiorari and prohibition are issues relating to, and borne by, an agreement forged in
the turn of the last century between the Republic of the Philippines and the United
States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in
the Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in
1991, the Philippines and the United States negotiated for a possible extension of the
military bases agreement. On September 16, 1991, the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect,
would have extended the presence of US military bases in the Philippines. [2] With the
expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy
Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel,
headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on
the complementing strategic interests of the United States and the Philippines in the
Asia-Pacific region. Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on
the VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations[3] that culminated in Manila on January 12 and 13,
1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary
of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,
[5]
 the Instrument of Ratification, the letter of the President [6] and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate,
in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator
Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees. [7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote [9] of its members. Senate Resolution No. 443 was
then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of
Notes between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US Armed
Forces and defense personnel may be present in the Philippines, and is quoted in its
full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States
military and civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United
States Army, Navy, Marine Corps, Air Force, and Coast Guard.
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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:
1. Subject to the provisions of this article:
(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
(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
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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
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offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph.
The one-year period will not include the time necessary to appeal.
Also, the one-year period will not include any time during which
scheduled trial procedures are delayed because United States
authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine
authorities shall assist each other in the carrying out of all necessary
investigation into offenses and shall cooperate in providing for the
attendance of witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.
8. When United States personnel have been tried in accordance with the
provisions of this Article and have been acquitted or have been
convicted and are serving, or have served their sentence, or have had
their sentence remitted or suspended, or have been pardoned, they
may not be tried again for the same offense in the Philippines. Nothing
in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of
rules of discipline arising from the act or omission which constituted an
offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or
prosecuted by Philippine authorities, they shall be accorded all
procedural safeguards established by the law of the Philippines. At the
minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges
made against them and to have reasonable time to prepare a
defense;
(c) To be confronted with witnesses against them and to cross examine
such witnesses;
(d) To present evidence in their defense and to have compulsory
process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice
on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United
States authorities, and to have such authorities present at all
judicial proceedings. These proceedings shall be public unless the
court, in accordance with Philippine laws, excludes persons who
have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate
Philippine and United States authorities. United States Personnel
serving sentences in the Philippines shall have the right to visits and
material assistance.
11. United States personnel shall be subject to trial only in Philippine
courts of ordinary jurisdiction, and shall not be subject to the
jurisdiction of Philippine military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign
military sales letters of offer and acceptance and leases of military
equipment, both governments waive any and all claims against each
other for damage, loss or destruction to property of each others armed
forces or for death or injury to their military and civilian personnel
arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and
those to which paragraph 1 applies, the United States Government, in
accordance with United States law regarding foreign claims, will pay
just and reasonable compensation in settlement of meritorious claims
for damage, loss, personal injury or death, caused by acts or omissions
of United States personnel, or otherwise incident to the non-combat
activities of the United States forces.
Article VII
Importation and Exportation
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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.
including light and harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed forces shall observe local
air traffic control regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States Government
non-commercial service shall not be subject to compulsory pilotage at
Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This agreement
shall remain in force until the expiration of 180 days from the date on which
either party gives the other party notice in writing that it desires to terminate
the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of
discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
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?

2. Vessels operated by or for the United States armed forces may enter
III
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 Does the VFA constitute an abdication of Philippine sovereignty?
implementing arrangements as necessary.
a. Are Philippine courts deprived of their jurisdiction to hear and try
3. Vehicles, vessels, and aircraft operated by or for the United States offenses committed by US military personnel?
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,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 133
b. Is the Supreme Court deprived of its jurisdiction over offenses
punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the
Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption
from taxes and duties for the equipment, materials supplies and other
properties imported into or acquired in the Philippines by, or on behalf,
of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground
that the latter have not shown any interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which justifies their
standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute
must show not only that the law is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. He must
show that he has been, or is about to be, denied some right or privilege to which he
is lawfully entitled, or that he is about to be subjected to some burdens or penalties
by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this
Court, that they have sustained, or are in danger of sustaining any direct injury as a
result of the enforcement of the VFA. As taxpayers, petitioners have not established
that the VFA involves the exercise by Congress of its taxing or spending powers.
[15]
 On this point, it bears stressing that a taxpayers suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived
from taxation.[16] Thus, in Bugnay Const. & Development Corp. vs. Laron [17],  we
held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing the illegal expenditure
of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he has
merely a general interest 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 Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the
present suit. While this Court, in Phil. Constitution Association vs. Hon.
Salvador Enriquez,[18] sustained the legal standing of a member of the Senate and
the House of Representatives to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bull, we cannot, at this instance,
similarly uphold petitioners standing as members of Congress, in the absence of a
clear showing of any direct injury to their person or to the institution to which they
belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent
than real. While it may be true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed however to sufficiently
show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the
legal capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its
sound discretion, brushes aside the procedural barrier and takes cognizance of the
petitions, as we have done in the early Emergency Powers Cases,[20]  where we
had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled
that transcendental importance to the public of these cases demands that
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they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied the exception in many
other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and
Gaming Corporation,[23]  where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping
with the Courts duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to
them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr. ,[24] thisCourt
ruled that in cases of transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper even where there is no
direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based
on the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others acts, [25] this Court nevertheless
resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which
provision of the Constitution applies, with regard to the exercise by the senate of its
constitutional power to concur with the VFA. Petitioners argue that Section 25, Article
XVIII is applicable considering that the VFA has for its subject the presence of foreign
military troops in the Philippines. Respondents, on the contrary, maintain that Section
21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an
agreement which involves merely the temporary visits of United States personnel
engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements. Section 21, Article
VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general,
in which case, the concurrence of at least two-thirds (2/3) of all the Members of the
Senate is required to make the subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on
treatise or international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature.All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines.Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider
the agreement binding on the Philippines. Section 25, Article XVIII further requires
that foreign military bases, troops, or facilities may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the
votes cast in a national referendum held for that purpose if so required by Congress,
and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground. These constitutional
provisions both embody phrases in the negative and thus, are deemed prohibitory in
mandate and character. In particular, Section 21 opens with the clause No treaty x x
x, and Section 25 contains the phrase shall not be allowed. Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under Section 21, Article VII or
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 135
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of
the Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement
of vessel and aircraft, importation and exportation of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however, the provisions of section
21, Article VII will find applicability with regard to the issue and for the sole purpose
of determining the number of votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision
or law prevails over a general one. Lex specialis derogat generali. Thus, where
there is in the same statute a particular enactment and also a general one which, in
its most comprehensive sense, would include what is embraced in the former, the
particular enactment must be operative, and the general enactment must be taken to
affect only such cases within its general language which are not within the provision
of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally
be so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to
mere transient agreements for the reason that there is no permanent placing of
structure for the establishment of a military base. On this score, the Constitution
makes no distinction between transient and permanent. Certainly, we find nothing in
Section 25, Article XVIII that requires foreign troops or facilities  to be stationed or
placed permanently  in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law,
the Court should not distinguish- Ubi lex non distinguit nec nos distinguire
debemos.
In like manner, we do not subscribe to the argument that Section 25, Article
XVIII is not controlling since no foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. Notably, a perusal of said constitutional provision
reveals that the proscription covers foreign military bases, troops, or facilities. Stated
differently, this prohibition is not limited to the entry of troops and facilities without
any foreign bases being established. The clause does not refer to foreign military
bases, troops, or facilitiescollectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,[28] such that, the provision contemplates three different situations - a
military treaty the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during
the deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner
Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such kind
of a treaty, must it cover the three-bases, troops or facilities-or
could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one
or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter
into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a
treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we
will find some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels that
can stay afloat in the sea even for months and years without returning to their home
country. These military warships are actually used as substitutes for a land-home
base not only of military aircraft but also of military personnel and facilities.  Besides,
vessels are mobile as compared to a land-based military headquarters.
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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. [30] Without a tinge of doubt, two-thirds (2/3)
of this figure, or not less than sixteen (16) members, favorably acting on the proposal
is an unquestionable compliance with the requisite number of votes mentioned in
Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made, [31] will not alter in any
significant way the circumstance that more than two-thirds of the members of the
Senate concurred with the proposed VFA, even if the two-thirds vote requirement is
based on this figure of actual members (23). In this regard, the fundamental law is
clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as
to render compliance with the strict constitutional mandate of giving concurrence to
the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article
XVIII are present, we shall now pass upon and delve on the requirement that the VFA
should be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section
25, Article XVIII, means that the VFA should have the advice and consent of the
United States Senate pursuant to its own constitutional process, and that it should
not be considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is
conclusive, on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as
a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means
that the other contracting party accepts or acknowledges the agreement as a
treaty.[32] To require the other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for concurrence pursuant to its
Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to
be given their ordinary meaning except where technical terms are employed, in which
case the significance thus attached to them prevails. Its language should be
understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as
an executive agreement because, under international law, an executive agreement is
as binding as a treaty. [35] To be sure, as long as the VFA possesses the elements of
an agreement under international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. [36] There are many other terms
used for a treaty or international agreement, some of which are: act, protocol,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 137
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 nations consent to be bound by said treaty, with the concomitant duty to uphold
the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of
the state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed. [43] A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be bound
by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the State has signed the
treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was
expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and
with the exchange of notes between the Philippines and the United States of America,
it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution, [46] declares that the Philippines adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with
all nations.
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As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of its government
or any official thereof. As an integral part of the community of nations, we are
responsible to assure that our government, Constitution and laws will carry out our
international obligation.[47] Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties and responsibilities
under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted
by the International Law Commission in 1949 provides: Every State has the duty to
carry out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every
treaty in force is binding upon the parties to it and must be performed by them in
good faith. This is known as the principle of pacta sunt servanda which preserves the
sanctity of treaties and have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international tribunals. [49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for
exercising a power and performing a task conferred upon him by the Constitution-the
power to enter into and ratify treaties. Through the expediency of Rule 65 of the
Rules of Court, petitioners in these consolidated cases impute grave abuse of
discretion on the part of the chief Executive in ratifying the VFA, and referring the
same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of
positive duty enjoined or to act at all in contemplation of law. [50]
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the country. In
many ways, the President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then) conceded. [51] Wielding vast powers
an influence, his conduct in the external affairs of the nation, as Jefferson describes,
is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at
least two-thirds vote of all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is powerless to
invade it.[53] Consequently, the acts or judgment calls of the President involving the
VFA-specifically the acts of ratification and entering into a treaty and those necessary
or incidental to the exercise of such principal acts - squarely fall within the sphere of
his constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of power or
discretion.
It is the Courts considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution. It is of no moment that the
President, in the exercise of his wide latitude of discretion and in the honest belief
that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical
abuse of judgment, may be imputed to the President in his act of ratifying the VFA
and referring the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing so, the
President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to
the Senate for concurrence under the provisions of Section 21 of Article VII, instead
of Section 25 of Article XVIII of the Constitution, still, the President may not be
faulted or scarred, much less be adjudged guilty of committing an abuse of discretion
in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has
broadened the scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security, it has not
altogether done away with political questions such as those which arise in the field of
foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section
1, is merely (to) check whether or not the governmental branch or agency has gone
beyond the constitutional limits of its jurisdiction, not that it erred or has a different
view. In the absence of a showing (of) grave abuse of discretion amounting to lack
of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has
no power to look into what it thinks is apparent error. [55]
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 139

As to the power to concur with treaties, the constitution lodges the same with
the Senate alone. Thus, once the Senate[56] performs that power, or exercises its
prerogative within the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of power, much less grave
abuse thereof.Corollarily, the Senate, in the exercise of its discretion and acting
within the limits of such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in

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

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

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are

hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-

Reyes, Ynares-Santiago,  and De Leon, Jr., JJ.,  concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno, J.,  see dissenting opinion.
Mendoza, J.,  in the result.
Panganiban, J., no part due to close personal and former professional relations
with a petitioner, Sen. J.R. Salonga.