G.R. No.

193636               July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of
Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence
Division, PNP Provincial Office, Ilocos Norte, Respondents.

DECISION

SERENO, J.:

Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed
pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2 seeking a review of the 9
September 2010 Decision in Special Proc. No. 14979 of the Regional Trial Court, First
Judicial Region, Laoag City, Branch 13 (RTC Br. 13). 3 The questioned Decision denied
petitioner the privilege of the writ of habeas data. 4

At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa)
was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior
Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and respondent
Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial
Investigation and Detective Management Branch, both of the Ilocos Norte Police
Provincial Office.6

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative

Order No. 275 (A.O. 275), "Creating an Independent Commission to Address the
Alleged Existence of Private Armies in the Country." 7 The body, which was later on
referred to as the Zeñarosa Commission, 8 was formed to investigate the existence of
private army groups (PAGs) in the country with a view to eliminating them before the 10
May 2010 elections and dismantling them permanently in the future. 9 Upon the
conclusion of its investigation, the Zeñarosa Commission released and submitted to the
Office of the President a confidential report entitled "A Journey Towards H.O.P.E.: The
Independent Commission Against Private Armies’ Report to the President" (the
Report).10

Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte)
conducted a series of surveillance operations against her and her aides, 11 and classified
her as someone who keeps a PAG.12 Purportedly without the benefit of data verification,
PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa
Commission,13 thereby causing her inclusion in the Report’s enumeration of individuals
maintaining PAGs.14 More specifically, she pointed out the following items reflected
therein:

(a) The Report cited the PNP as its source for the portion regarding the status of
PAGs in the Philippines.15
 (b) The Report stated that "x x x the PNP organized one dedicated Special Task
Group (STG) for each private armed group (PAG) to monitor and counteract their
activities."16

(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP
and captioned as "Status of PAGs Monitoring by STGs as of April 19, 2010,"
which classifies PAGs in the country according to region, indicates their identity,
and lists the prominent personalities with whom these groups are
associated.17 The first entry in the table names a PAG, known as the Gamboa
Group, linked to herein petitioner Gamboa. 18

(d) Statistics on the status of PAGs were based on data from the PNP, to wit:

The resolutions were the subject of a national press conference held in

Malacañang on March 24, 2010 at which time, the Commission was also asked
to comment on the PNP report that out of one hundred seventeen (117) partisan
armed groups validated, twenty-four (24) had been dismantled with sixty-seven
(67) members apprehended and more than eighty-six (86) firearms confiscated.

Commissioner Herman Basbaño qualified that said statistics were based on PNP
data but that the more significant fact from his report is that the PNP has been
vigilant in monitoring the activities of these armed groups and this vigilance is
largely due to the existence of the Commission which has continued
communicating with the Armed Forces of the Philippines (AFP) and PNP
personnel in the field to constantly provide data on the activities of the PAGs.
Commissioner Basbaño stressed that the Commission’s efforts have preempted
the formation of the PAGs because now everyone is aware that there is a body
monitoring the PAGs movement through the PNP. Commissioner Lieutenant
General Edilberto Pardo Adan also clarified that the PAGs are being destabilized
so that their ability to threaten and sow fear during the election has been
considerably weakened.19

(e) The Report briefly touched upon the validation system of the PNP:

Also, in order to provide the Commission with accurate data which is truly reflective of
the situation in the field, the PNP complied with the Commission’s recommendation that
they revise their validation system to include those PAGs previously listed as dormant.
In the most recent briefing provided by the PNP on April 26, 2010, there are one
hundred seven (107) existing PAGs. Of these groups, the PNP reported that seven (7)
PAGs have been reorganized.20

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion
of the Report naming Gamboa as one of the politicians alleged to be maintaining a
PAG.21 Gamboa averred that her association with a PAG also appeared on print
media.22 Thus, she was publicly tagged as someone who maintains a PAG on the basis
of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the
Zeñarosa Commission.23 As a result, she claimed that her malicious or reckless
inclusion in the enumeration of personalities maintaining a PAG as published in the
Report also made her, as well as her supporters and other people identified with her,
susceptible to harassment and police surveillance operations. 24

Contending that her right to privacy was violated and her reputation maligned and
destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of
habeas data against respondents in their capacities as officials of the PNP-Ilocos
Norte.25 In her Petition, she prayed for the following reliefs: (a) destruction of the
unverified reports from the PNP-Ilocos Norte database; (b) withdrawal of all information
forwarded to higher PNP officials; (c) rectification of the damage done to her honor; (d)
ordering respondents to refrain from forwarding unverified reports against her; and (e)
restraining respondents from making baseless reports. 26

The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13,
which issued the corresponding writ on 14 July 2010 after finding the Petition
meritorious on its face.27 Thus, the trial court (a) instructed respondents to submit all
information and reports forwarded to and used by the Zeñarosa Commission as basis to
include her in the list of persons maintaining PAGs; (b) directed respondents, and any
person acting on their behalf, to cease and desist from forwarding to the Zeñarosa
Commission, or to any other government entity, information that they may have
gathered against her without the approval of the court; (c) ordered respondents to make
a written return of the writ together with supporting affidavits; and (d) scheduled the
summary hearing of the case on 23 July 2010.28

In their Return of the Writ, respondents alleged that they had acted within the bounds of
their mandate in conducting the investigation and surveillance of Gamboa. 29 The
information stored in their database supposedly pertained to two criminal cases in which
she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed
as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated
murder and direct assault upon a person in authority, as well as indirect assault and
multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009. 30

Respondents likewise asserted that the Petition was incomplete for failing to comply
with the following requisites under the Rule on the Writ of Habeas Data: (a) the manner
in which the right to privacy was violated or threatened with violation and how it affected
the right to life, liberty or security of Gamboa; (b) the actions and recourses she took to
secure the data or information; and (c) the location of the files, registers or databases,
the government office, and the person in charge, in possession or in control of the data
or information.31 They also contended that the Petition for Writ of Habeas Data, being
limited to cases of extrajudicial killings and enforced disappearances, was not the
proper remedy to address the alleged besmirching of the reputation of Gamboa. 32

RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition.33 The trial court categorically ruled that the inclusion of Gamboa in the list of
persons maintaining PAGs, as published in the Report, constituted a violation of her
right to privacy, to wit:

In this light, it cannot also be disputed that by her inclusion in the list of persons
maintaining PAGs, Gamboa’s right to privacy indubitably has been violated. The
violation understandably affects her life, liberty and security enormously. The untold
misery that comes with the tag of having a PAG could even be insurmountable. As she
essentially alleged in her petition, she fears for her security that at any time of the day
the unlimited powers of respondents may likely be exercised to further malign and
destroy her reputation and to transgress her right to life.

By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that
there was certainly intrusion into Gamboa’s activities. It cannot be denied that
information was gathered as basis therefor. After all, under Administrative Order No.
275, the Zeñarosa Commission was tasked to investigate the existence of private
armies in the country, with all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987.

x x x           x x x          x x x

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she
accused respondents, who are public officials, of having gathered and provided
information that made the Zeñarosa Commission to include her in the list. Obviously, it
was this gathering and forwarding of information supposedly by respondents that
petitioner barks at as unlawful. x x x.34

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the
ground that Gamboa failed to prove through substantial evidence that the subject
information originated from respondents, and that they forwarded this database to the
Zeñarosa Commission without the benefit of prior verification. 35 The trial court also ruled
that even before respondents assumed their official positions, information on her may
have already been acquired.36 Finally, it held that the Zeñarosa Commission, as the
body tasked to gather information on PAGs and authorized to disclose information on
her, should have been impleaded as a necessary if not a compulsory party to the
Petition.37

Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010, 38 raising
the following assignment of errors:

1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as
either a necessary or indispensable party;

2. The trial court erred in declaring that Gamboa failed to present sufficient proof
to link respondents as the informant to [sic] the Zeñarosa Commission;

3. The trial court failed to satisfy the spirit of Habeas Data;

 4. The trial court erred in pronouncing that the reliance of the Zeñarosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;

5. The trial court erred in making a point that respondents are distinct to PNP as
an agency.39

On the other hand, respondents maintain the following arguments: (a) Gamboa failed to
present substantial evidence to show that her right to privacy in life, liberty or security
was violated, and (b) the trial court correctly dismissed the Petition on the ground that
she had failed to present sufficient proof showing that respondents were the source of
the report naming her as one who maintains a PAG. 40

Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the
mandate to dismantle PAGs in the country should be done in accordance with due
process, such that the gathering and forwarding of unverified information on her must
be considered unlawful.41 She also reiterates that she was able to present sufficient
evidence showing that the subject information originated from respondents. 42

In determining whether Gamboa should be granted the privilege of the writ of habeas
data, this Court is called upon to, first, unpack the concept of the right to privacy;
second, explain the writ of habeas data as an extraordinary remedy that seeks to
protect the right to informational privacy; and finally, contextualize the right to privacy
vis-à-vis the state interest involved in the case at bar.

The Right to Privacy

The right to privacy, as an inherent concept of liberty, has long been recognized as a
constitutional right. This Court, in Morfe v. Mutuc,43 thus enunciated:

The due process question touching on an alleged deprivation of liberty as thus resolved
goes a long way in disposing of the objections raised by plaintiff that the provision on
the periodical submission of a sworn statement of assets and liabilities is violative of the
constitutional right to privacy. There is much to be said for this view of Justice Douglas:
"Liberty in the constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of
fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men."

The concept of liberty would be emasculated if it does not likewise compel respect for
his personality as a unique individual whose claim to privacy and interference demands
respect. xxx.

x x x           x x x          x x x
x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five
members of the Court, stated: "Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any
house’ in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his detriment. The
Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people." After referring to
various American Supreme Court decisions, Justice Douglas continued: "These cases
bear witness that the right of privacy which presses for recognition is a legitimate one."

x x x           x x x          x x x

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition

independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and integrity
of the individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." 44 (Emphases supplied)

In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to
privacy in Philippine jurisdiction, to wit:

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized
and enshrined in several provisions of our Constitution. It is expressly recognized in
section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.

Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

x x x           x x x          x x x

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health as may be provided by law.

x x x           x x x          x x x

Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code
provides that "every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons" and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any violation of the
rights and liberties of another person, and recognizes the privacy of letters and other
private communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and trespass to
dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law,
the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of
Court on privileged communication likewise recognize the privacy of certain information.

Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of government
to show that A.O. No. 308 is justified by some compelling state interest and that it is
narrowly drawn. x x x.46 (Emphases supplied)

Clearly, the right to privacy is considered a fundamental right that must be protected
from intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee
on Banks,47 this Court underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated,
suffice it to state that privacy is not an absolute right. While it is true that Section 21,
Article VI of the Constitution, guarantees respect for the rights of persons affected by
the legislative investigation, not every invocation of the right to privacy should be
allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held
that the right of the people to access information on matters of public concern generally
prevails over the right to privacy of ordinary financial transactions. In that case, we
declared that the right to privacy is not absolute where there is an overriding compelling
state interest. Employing the rational basis relationship test, as laid down in Morfe v.
Mutuc, there is no infringement of the individual’s right to privacy as the requirement to
disclosure information is for a valid purpose, in this case, to ensure that the government
agencies involved in regulating banking transactions adequately protect the public who
invest in foreign securities. Suffice it to state that this purpose constitutes a reason
compelling enough to proceed with the assailed legislative investigation. 48

Therefore, when the right to privacy finds tension with a competing state objective, the
courts are required to weigh both notions. In these cases, although considered a
fundamental right, the right to privacy may nevertheless succumb to an opposing or
overriding state interest deemed legitimate and compelling.

The Writ of Habeas Data

The writ of habeas data is an independent and summary remedy designed to protect
the image, privacy, honor, information, and freedom of information of an individual, and
to provide a forum to enforce one’s right to the truth and to informational privacy. 49 It
seeks to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order
to achieve unlawful ends.50 It must be emphasized that in order for the privilege of the
writ to be granted, there must exist a nexus between the right to privacy on the one
hand, and the right to life, liberty or security on the other. Section 1 of the Rule on the
Writ of Habeas Data reads:

Habeas data. – The writ of habeas data is a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data information regarding the person, family,
home and correspondence of the aggrieved party.

The notion of informational privacy is still developing in Philippine law and

jurisprudence. Considering that even the Latin American habeas data, on which our
own Rule on the Writ of Habeas Data is rooted, finds its origins from the European
tradition of data protection,51 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights (ECHR). Of particular
note is Leander v. Sweden,52 in which the ECHR balanced the right of citizens to be free
from interference in their private affairs with the right of the state to protect its national
security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a
temporary replacement museum technician at the Naval Museum, which was adjacent
to a restricted military security zone.53 He was refused employment when the requisite
personnel control resulted in an unfavorable outcome on the basis of information in the
secret police register, which was kept in accordance with the Personnel Control
Ordinance and to which he was prevented access.54 He claimed, among others, that this
procedure of security control violated Article 8 of the European Convention of Human
Rights55 on the right to privacy, as nothing in his personal or political background would
warrant his classification in the register as a security risk. 56

The ECHR ruled that the storage in the secret police register of information relating to
the private life of Leander, coupled with the refusal to allow him the opportunity to refute
the same, amounted to an interference in his right to respect for private life. 57 However,
the ECHR held that the interference was justified on the following grounds: (a) the
personnel control system had a legitimate aim, which was the protection of national
security,58 and (b) the Personnel Control Ordinance gave the citizens adequate
indication as to the scope and the manner of exercising discretion in the collection,
recording and release of information by the authorities. 59 The following statements of the
ECHR must be emphasized:

58. The notion of necessity implies that the interference corresponds to a

pressing social need and, in particular, that it is proportionate to the legitimate
aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A
no. 109, p. 22, § 55).

59. However, the Court recognises that the national authorities enjoy a margin of
appreciation, the scope of which will depend not only on the nature of the
legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting its
national security must be balanced against the seriousness of the interference
with the applicant’s right to respect for his private life.

There can be no doubt as to the necessity, for the purpose of protecting national
security, for the Contracting States to have laws granting the competent domestic
authorities power, firstly, to collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for national security.

Admittedly, the contested interference adversely affected Mr. Leander’s legitimate

interests through the consequences it had on his possibilities of access to certain
sensitive posts within the public service. On the other hand, the right of access to public
service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment
of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those
consequences, the interference did not constitute an obstacle to his leading a private
life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to
the respondent State in assessing the pressing social need in the present case, and in
particular in choosing the means for achieving the legitimate aim of protecting national
security, was a wide one.

x x x           x x x          x x x

66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of national
security", as it is the very absence of such communication which, at least partly,
ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the
above-mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).

The Court notes, however, that various authorities consulted before the issue of the
Ordinance of 1969, including the Chancellor of Justice and the Parliamentary
Ombudsman, considered it desirable that the rule of communication to the person
concerned, as contained in section 13 of the Ordinance, should be effectively applied in
so far as it did not jeopardise the purpose of the control (see paragraph 31 above).

67. The Court, like the Commission, thus reaches the conclusion that the safeguards
contained in the Swedish personnel control system meet the requirements of paragraph
2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it,
the respondent State was entitled to consider that in the present case the interests of
national security prevailed over the individual interests of the applicant (see paragraph
59 above). The interference to which Mr. Leander was subjected cannot therefore be
said to have been disproportionate to the legitimate aim pursued. (Emphases supplied)

Leander illustrates how the right to informational privacy, as a specific component of the
right to privacy, may yield to an overriding legitimate state interest. In similar fashion,
the determination of whether the privilege of the writ of habeas data, being an
extraordinary remedy, may be granted in this case entails a delicate balancing of the
alleged intrusion upon the private life of Gamboa and the relevant state interest
involved.

The collection and forwarding of information by the PNP vis-à-vis the interest of the
state to dismantle private armies.

The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. 60 It also provides for the
establishment of one police force that is national in scope and civilian in character, and
is controlled and administered by a national police commission. 61

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with the
ultimate objective of dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer
oaths, take testimony or evidence relevant to the investigation and use compulsory
processes to produce documents, books, and records. 62 A.O. 275 likewise authorized
the Zeñarosa Commission to deputize the Armed Forces of the Philippines, the National
Bureau of Investigation, the Department of Justice, the PNP, and any other law
enforcement agency to assist the commission in the performance of its functions. 63

Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all
laws and ordinances relative to the protection of lives and properties; (b) maintain peace
and order and take all necessary steps to ensure public safety; and (c) investigate and
prevent crimes.64

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and
functions accorded to the Zeñarosa Commission and the PNP, the latter collected
information on individuals suspected of maintaining PAGs, monitored them and
counteracted their activities.65 One of those individuals is herein petitioner Gamboa.

This Court holds that Gamboa was able to sufficiently establish that the data contained
in the Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of
the trial court, however, the forwarding of information by the PNP to the Zeñarosa
Commission was not an unlawful act that violated or threatened her right to privacy in
life, liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with
the body specifically created for the purpose of investigating the existence of these
notorious groups. Moreover, the Zeñarosa Commission was explicitly authorized to
deputize the police force in the fulfillment of the former’s mandate, and thus had the
power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released
information to the Zeñarosa Commission without prior communication to Gamboa and
without affording her the opportunity to refute the same cannot be interpreted as a
violation or threat to her right to privacy since that act is an inherent and crucial
component of intelligence-gathering and investigation.1âwphi1 Additionally, Gamboa
herself admitted that the PNP had a validation system, which was used to update
information on individuals associated with PAGs and to ensure that the data mirrored
the situation on the field.66 Thus, safeguards were put in place to make sure that the
information collected maintained its integrity and accuracy.

Pending the enactment of legislation on data protection, this Court declines to make any
further determination as to the propriety of sharing information during specific stages of
intelligence gathering. To do otherwise would supplant the discretion of investigative
bodies in the accomplishment of their functions, resulting in an undue encroachment on
their competence.
However, to accord the right to privacy with the kind of protection established in existing
law and jurisprudence, this Court nonetheless deems it necessary to caution these
investigating entities that information-sharing must observe strict confidentiality.
Intelligence gathered must be released exclusively to the authorities empowered to
receive the relevant information. After all, inherent to the right to privacy is the freedom
from "unwarranted exploitation of one’s person or from intrusion into one’s private
activities in such a way as to cause humiliation to a person’s ordinary sensibilities." 67

In this case, respondents admitted the existence of the Report, but emphasized its
confidential nature.1âwphi1 That it was leaked to third parties and the media was
regrettable, even warranting reproach. But it must be stressed that Gamboa failed to
establish that respondents were responsible for this unintended disclosure. In any
event, there are other reliefs available to her to address the purported damage to her
reputation, making a resort to the extraordinary remedy of the writ of habeas data
unnecessary and improper.

Finally, this Court rules that Gamboa was unable to prove through substantial evidence
that her inclusion in the list of individuals maintaining PAGs made her and her
supporters susceptible to harassment and to increased police surveillance. In this
regard, respondents sufficiently explained that the investigations conducted against her
were in relation to the criminal cases in which she was implicated. As public officials,
they enjoy the presumption of regularity, which she failed to overcome.

It is clear from the foregoing discussion that the state interest of dismantling PAGs far
outweighs the alleged intrusion on the private life of Gamboa, especially when the
collection and forwarding by the PNP of information against her was pursuant to a lawful
mandate. Therefore, the privilege of the writ of habeas data must be denied.

WHEREFORE, the instant petition for review is DENIED. The assailed Decision in
Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag
City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.

G.R. No. 121087           August 26, 1999

FELIPE NAVARRO, petitioner,
vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5,
Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond
reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as
minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion
temporal, as maximum, but increased the death indemnity awarded to the heirs of the
victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00.

The information against petitioner alleged —

That on or about the 4th day of February, 1990, in the nighttime, in the City of
Lucena, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then a member of the Lucena
Integrated National Police, with intent to kill, did then and there willfully,
unlawfully and feloniously assault one Ike Lingan inside the Lucena police
headquarters, where authorities are supposed to be engaged in the discharge of
their duties, by boxing the said Ike Lingan in the head with the butt of a gun and
thereafter when the said victim fell, by banging his head against the concrete
pavement, as a consequence of which said Ike Lingan suffered cerebral
concussion and shock which directly caused his death.

The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley
Jalbuena and Enrique "Ike" Lingan, who were reporters of the radio station DWTI in
Lucena City, together with one Mario Ilagan, went to the Entertainment City following
reports that it was showing the nude dancers. After the three had seated themselves at
a table and ordered beer, a scantily clad dancer appeared on stage and began to
perform a strip act. As she removed her brassieres, Jalbuena brought out his camera
and took a picture.2

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco,
approached Jalbuena and demanded to know why he took a picture. 3 Jalbuena replied:
"Wala kang pakialam, because this is my job." 4 Sioco pushed Jalbuena towards the
table as he warned the latter that he would kill him. 5 When Jalbuena saw that Sioco was
about to pull out his gun, he ran out of the joint followed by his companions. 6

Jalbuena and his companions went to the police station to report the matter. Three of
the policeman on duty, including petitioner Navarro, were having drinks in front of the
police station, and they asked Jalbuena and his companions to join them. Jalbuena
declined and went to the desk officer, Sgt. Añonuevo, to report the incident. In a while,
Liquin and Sioco arrived on a motorcycle. 7

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for
around fifteen minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing
him to the wall, said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni
Kabo Liquin, hindi mo ba kilala?"9 Petitioner Navarro then pulled out his firearm and
cocked it, and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?" 10

At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan
pumarito kami para magpa-blotter, I am here to mediate." 11 Petitoner Navarro replied:
"Walang press, press, mag-sampu pa kayo."12 He then turned to Sgt. Añonuevo and
told him to make of record the behavior of Jalbuena and Lingan. 13
This angered Lingan, who said: "O, di ilagay mo diyan" 14 Petitioner Navarro retorted:
"Talagang ilalagay ko."15 The two then had a heated exchange.16 Finally, Lingan said:
"Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang
tayo."17 Petitioner Navarro replied: "Ah, ganoon?" 18

As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol
above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to
get up, but petitioner Navarro gave him a fist blow on the forehead which floored him. 19

Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si
Ike Lingan and naghamon."20 He said to Sgt. Añonuevo: "Ilagay mo diyan sa blotter sa
harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon." 21 He then poked
his gun at the right temple of Jalbuena and made him sign his name on the
blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he
simply wrote his name in print.23

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a
policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI,
Boy, Casañada, arrived and, learning that Lingan had been taken to the hospital,
proceeded there. But Lingan died from his injuries. 24

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange
between petitioner and the deceased.25 The following is an excerpt from the tape
recording:

Lingan: Pare, you are abusing yourself.

Navarro: Who is that abusing?

Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the
problem.

xxx     xxx     xxx

Navarro: Wala sa akin yan. Ang kaso lang . . .

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do
not fight with me. I just came here to ayusin things. Do not say bad things against
me. I'm the number one loko sa media. I'm the best media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan!

Huwag mong sabihing loko ka!

Lingan: I'm brave also.

 Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa
akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.

Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita
na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . .
Parang minomonopoly mo eh.

Lingan: Pati ako kalaban ninyo.

Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan: You are wrong. Bakit kalaban nyo ang press?

Navarro: Pulis ito! Aba!

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro: Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan,
testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo
diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo
eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni
Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan.
Sige, dalhin nyo sa hospital yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but
he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the
floor twice, each time hitting his head on the concrete. 26

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the

prosecution and the defense, this court finds that the evidence for the
prosecution is the more credible, concrete and sufficient to create that moral
certainty in the mind of the court that accused herein is criminally responsible.

The defense's evidence which consists of outright denial could not under the
circumstance overturn the strength of the prosecution's evidence.

This court finds that the prosecution witnesses, more particularly Stanley
Jalbuena, lacked any motive to make false accusation, distort the truth, testify
 falsehood or cause accusation of one who had neither brought him harm or
injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva

Yamamoto confirms the detailed account given by Stanley Jalbuena on how
Lingan sustained head injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie

the claim of the defense that the head injuries of deceased Lingan were caused
by the latter's falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellant's aforesaid disquisition. We have

carefully evaluated the conflicting versions of the incident as presented by both
parties, and we find the trial court's factual conclusions to have better and
stronger evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellant's
aggression does not impair the probative worth of his positive and logical account
of the incident in question. In fact, far from proving his innocence, appellant's
unwarranted assault upon Jalbuena, which the defense has virtually admitted,
clearly betrays his violent character or disposition and his capacity to harm
others. Apparently, the same motivation that led him into assailing Jalbuena must
have provoked him into also attacking Lingan who had interceded for Jalbuena
and humiliated him and further challenged to a fist fight.1âwphi1.nêt

xxx     xxx     xxx

On the other hand, appellant's explanation as how Lingan was injured is too
tenuous and illogical to be accepted. It is in fact contradicted by the number,
nature and location of Lingan's injuries as shown in the post-mortem report (Exh.
D). According to the defense, Lingan fell two times when he was outbalanced in
the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in
his left forehead, left eyebrow, between his left and right eyebrows, and
contusion in the right temporal region of the head (Exh. E.). Certainly, these
injuries could not have been resulted from Lingan's accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN

ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON
SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS
MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED
GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
 MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY
EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN
THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the
ground that he was a biased witness, having a grudge against him. The testimony of a
witness who has an interest in the conviction of the accused is not, for this reason
alone, unreliable.27 Trial courts, which have the opportunity observe the facial
expressions, gestures, and tones of voice of a witness while testifying, are competent to
determine whether his or her testimony should be given credence. 28 In the instant case,
petitioner Navarro has not shown that the trial court erred in according weight to the
testimony of Jalbuena.

Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be
asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire
tapping. The answer is in the affirmative. The law provides:

Sec. 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
dictaphone or dictagraph of dectectaphone or walkie-talkie or tape-recorder, or
however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or
acts penalized in the next preceding 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.

xxx     xxx     xxx

Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, effect, or meaning of the same or any part thereof, or any
information therein contained obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private
communications.29 Since the exchange between petitioner Navarro and Lingan was not
private, its tape recording is not prohibited.

Nor is there any question that it was duly authenticated. A voice recording is
authenticated by the testimony of a witness (1) that he personally recorded the
conversations; (2) that the tape played in the court was the one he recorded; and (3)
that the voices on the tape are those of the persons such are claimed to belong. 30 In the
instant case, Jalbuena testified that he personally made the voice recording; 31 that the
tape played in the court was the one he recorded; 32 and that the speakers on the tape
were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the
authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a
heated exchange between petitioner Navarro and Lingan on the placing in the police
blotter of an entry against him and Jalbuena; and (2) that some form of violence
occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan,
issued the medical certificate,34 dated February 5, 1990, containing the following
findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right
eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamato testified:

Q   Give your opinion as to what was the possible cause of this findings number one,
which is oozing of blood from the forehead?

A   It may be due to a blow on the forehead or it bumped to a hard object, sir.

Q   Could a metal like a butt of a gun have caused this wound No. 1.?

A   It is possible, sir.

Q   And in the alternative, could have it been caused by bumping on a concrete floor?

A   Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No.
2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Q   Could a butt of a gun have caused it doctor?

A   The swelling is big so it could have not been caused by a butt of a gun because the
butt of a gun is small, sir.

Q   How about this findings No. 4?

A   By a bump or contact of the body to a hard object, sir.

Q   And findings No. 5 what could have caused it?

A   Same cause, sir.

Q   This findings No. 6 what could have caused this wound?

A   Same thing sir.

Q   How about the last finding, cyanosis of tips of fingers and toes, what could have
caused it doctor?

WITNESS:

It indicates there was cardiac failure, sir.

FISCAL:

In this same post mortem report and under the heading cause of death it states: Cause
of Death: Cerebral concussion and Shock, will you explain it?

A   Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir.

Q   What could have been the cause of jarring of the brain?

A   It could have been caused by a blow of a hard object, sir.

Q   What about the shock, what could have caused it?

A   It was due to peripheral circulatory failure, sir.

Q   Could any one of both caused the death of the victim?

A   Yes, sir.

Q   Could cerebral concussion alone have caused the death of the deceased?

A   May be, sir.

FISCAL:

Which of these two more likely, to cause death?

WITNESS:

Shock, sir.

Q   Please explain further the meaning of the medical term shock?

A   It is caused by peripheral circulatory failure as I have said earlier sir.

xxx     xxx     xxx

FISCAL:

Could a bumping or pushing of one's head against a concrete floor have caused shock?

WITNESS:

Possible, sir.

How about striking with a butt of a gun, could it cause shock?

A   Possible, sir.35

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit
Lingan with the handle of his pistol above the left eyebrow and struck him on the
forehead with his fist.

Third. It is argued that the mitigating circumstances of sufficient provocation or threat on

the part of the offended party immediately preceding the act should have been
appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or
improper conduct or act of the offended party, capable of exciting, inciting or irritating
anyone.36 The provocation must be sufficient and should immediately precede the
act.37 To be sufficient, it must be adequate to excite a person to commit the wrong,
which must accordingly be proportionate in gravity. 38 And it must immediately precede
the act so much so that there is no interval between the provocation by the offended
party and the commission of the crime by the accused. 39

In the present case, the remarks of Lingan, which immediately preceded the act of
petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this
mitigating circumstance in favor of the accused, a policeman, who shot a motorist after
the latter had repeatedly taunted him with defiant words. Hence, this mitigating
circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit
so grave a wrong as that committed should also be appreciated in favor of petitioner.
The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who
provoked him shows that he had no intent to kill the latter. Thus, this mitigating
circumstance should be taken into account in determining the penalty that should be
imposed on petitioner Navarro. The allowance of this mitigating circumstance is
consistent with the rule that criminal liability shall be incurred by any person committing
a felony although the wrongful act done be different from that which he
intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit
so grave a wrong as that committed was appreciated in favor of the accused while
finding him guilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where the

public authorities are engaged in the discharge of their duties should be appreciated
against petitioner Navarro. The offense in this case was committed right in the police
station where policemen were discharging their public functions. 43

The crime committed as found by the trial court and the Court of Appeals was homicide,
for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal.
As there were two mitigating circumstances and one aggravating circumstances, the
penalty should be fixed in its minimum period. 44 Applying the Indeterminate Sentence
Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum
of which is within the range of the penalty next lower degree, i.e., prision mayor, and the
maximum of which is reclusion temporal in its minimum period.45
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is
in accordance with the current jurisprudence. 46

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification
that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18
years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as
maximum.

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

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

In support of her claim, petitioner produced a verbatim transcript of the event and
sought moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial
court's 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:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon

M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa

'yo, nakalimot ka na kung paano ka napunta rito, porke
member ka na, magsumbong ka kung ano ang gagawin ko
sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong

binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw 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 ka sa akin makakahingi.

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

cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka

pumasok dito sa hotel. Magsumbong ka sa Union kung
gusto mo. Nakalimutan mo na kung paano ka nakapasok
dito "Do you think that on your own makakapasok ka kung
hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

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

ESG — Kaso ilang beses na akong binabalikan doon ng

mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa

hotel, kung on your own merit alam ko naman kung gaano
ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka
papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

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

ESG — Kukunin ka kasi ako.

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.

 MARIANO M.
CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on
the ground that the facts charged do not constitute an offense, particularly a violation of
R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash,
agreeing with petitioner that 1) the facts charged do not constitute an offense under
R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a person other than a participant to the communication.4

From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in
a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision

declaring the trial court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under

Section 1 of R.A. 4200. In thus quashing the information based on the
ground that the facts alleged do not constitute an offense, the respondent
judge acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which
respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the
instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable
provision of Republic Act 4200 does not apply to the taping of a private conversation by
one of the parties to the conversation. She contends that the provision merely refers to
the unauthorized taping of a private conversation by a party other than those involved in
the communication.8 In relation to this, petitioner avers that the substance or content of
the conversation must be alleged in the Information, otherwise the facts charged would
not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200
penalizes the taping of a "private communication," not a "private conversation" and that
consequently, her act of secretly taping her conversation with private respondent was
not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where
the language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and
Other Related Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to
whether the party sought to be penalized by the statute ought to be a party other than or
different from those involved in the private communication. The statute's intent to
penalize all persons unauthorized to make such recording is underscored by the use of
the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent

court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to
make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of

secrecy would not appear to be material. Now, suppose, Your Honor, the
recording is not made by all the parties but by some parties and involved
not criminal cases that would be mentioned under section 3 but would
cover, for example civil cases or special proceedings whereby a recording
is made not necessarily by all the parties but perhaps by some in an effort
to show the intent of the parties because the actuation of the parties prior,
simultaneous even subsequent to the contract or the act may be indicative
of their intention. Suppose there is such a recording, would you say, Your
Honor, that the intention is to cover it within the purview of this bill or
outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution
of offense but as evidence to be used in Civil Cases or special
proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded

conversations taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to

record the observation of one without his knowing it and then using it
against him. It is not fair, it is not sportsmanlike. If the purpose; Your
honor, is to record the intention of the parties. I believe that all the parties
should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of
the board of directors where a tape recording is taken, there is no
objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the
observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we

say: "Please be informed that whatever you say here may be used against
you." That is fairness and that is what we demand. Now, in spite of that
warning, he makes damaging statements against his own interest, well, he
cannot complain any more. But if you are going to take a recording of the
observations and remarks of a person without him knowing that it is being
taped or recorded, without him knowing that what is being recorded may
be used against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

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 conversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-social desires
of views not intended to be taken seriously. The right to the privacy of
communication, among others, has expressly been assured by our
 Constitution. Needless to state here, the framers of our Constitution must
have recognized the nature of conversations between individuals and the
significance of man's spiritual nature, of his feelings and of his intellect.
They must have known that part of the pleasures and satisfactions of life
are to be found in the unaudited, and free exchange
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.

G.R. No. 107383             February 20, 1996

CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of
the Regional Trial Court of Manila (Branch X) which ordered petitioner to return
documents and papers taken by her from private respondent's clinic without the latter's
knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and private respondent's secretary, forcibly opened the
drawers and cabinet in her husband's clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her
husband.

Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo
Martin, declaring him "the capital/exclusive owner of the properties described in
paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal,
the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.

There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's
comment in that case) were admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct,
For this reason it is contended that the Court of Appeals erred in affirming the decision
of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant
in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of the following
defense of Atty. Felix; Jr. which it found to be "impressed with merit:" 2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix,

Jr.], he maintains that:

....
 4. When respondent refiled Cecilia's case for legal separation before the Pasig
Regional Trial Court, there was admittedly an order of the Manila Regional Trial
Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On
September 6, 1983, however having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining order on aforesaid date
which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit
the genuineness and authenticity of the subject annexes cannot be looked upon
as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes, At that point in time, would it have been
malpractice for respondent to use petitioner's admission as evidence against him
in the legal separation case pending in the Regional Trial Court of Makati?
Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr.
Martin himself under oath, Such verified admission constitutes an affidavit, and,
therefore, receivable in evidence against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her husband's admission and use the
same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than
a declaration that his use of the documents and papers for the purpose of securing Dr.
Martin's admission as to their genuiness and authenticity did not constitute a violation of
the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.

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

Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and correspondence
[to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law."4 Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking them for any telltale evidence of
marital infidelity. A person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection is ever available to
him or to her.

The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists. 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.

G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA
CATOLICO, respondents.

DAVIDE, JR., J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. 1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby
assailing the 30 September 1993 decision 2 and December 1993 Resolution3 of the
National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent 4 and
denied the petitioners' motion for reconsideration. 5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter

WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-

General Manager Emma R. Co warning her not to dispense medicine to employees
chargeable to the latter's accounts because the same was a prohibited practice. On the
same date, Co issued another memorandum7 to Catolico warning her not to negotiate
with suppliers of medicine without consulting the Purchasing Department, as this would
impair the company's control of purchases and, besides she was not authorized to deal
directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained
that her act was "due to negligence," since fellow employee Irene Soliven "obtained the
medicines in bad faith and through misrepresentation when she claimed that she was
given a charge slip by the Admitting Dept." Catolico then asked the company to look into
the fraudulent activities of Soliven.8

In a memorandum9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E.

Bautro warned Catolico against the "rush delivery of medicines without the proper
documents."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he

noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter
YSP), which he described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No.
19045 with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles
of Voren tablets at P384.00 per unit. Previews P.O.s issued to YSP, Inc. showed
that the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or
an over price of P64.00 per bottle (or total of P640.00). WDRC paid the amount
of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988.
Verification was made to YSP, Inc. to determine the discrepancy and it was
found that the cost per bottle was indeed overpriced. YSP, Inc. Accounting
Department (Ms. Estelita Reyes) confirmed that the difference represents refund
of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per
their check voucher no. 629552 (shown to the undersigned), which was paid to
Ms. Catolico through China Bank check no. 892068 dated November 9, 1989 . . .
.

The undersigned talked to Ms. Catolico regarding the check but she denied
having received it and that she is unaware of the overprice. However, upon
conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed
that the check amounting to P640.00 was actually received by Ms. Catolico. As a
matter of fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope
containing the check but Ms. Saldana answered her "talagang ganyan, bukas." It
appears that the amount in question (P640.00) had been pocketed by Ms.
Catolico.10

Forthwith, in her memorandum11 dated 37 January 1990, Co asked Catolico to explain,

within twenty-four hours, her side of the reported irregularity. Catolico asked for
additional time to give her explanation, 12 and she was granted a 48-hour extension from
1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6
February 1990 to 7 March 1990, she would be placed on preventive suspension to
protect the interests of the company.13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales
Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she
protested Saldaña's invasion of her privacy when Saldaña opened an envelope
addressed to Catolico.14

In a letter15 to Co dated 10 February 1990, Catolico, through her counsel, explained that
the check she received from YSP was a Christmas gift and not a "refund of overprice."
She also averred that the preventive suspension was ill-motivated, as it sprang from an
earlier incident between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a

memorandum16 notifying Catolico of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990
and Feb. 10, 1990 respectively regarding our imposition of preventive
suspension on you for acts of dishonesty. However, said letters failed to rebut the
evidences [sic] in our possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase Orders at YSP Phils.,
Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of
P320.00/bottle only. A check which you received in the amount of P640.00
actually represents the refund of over price of said medicines and this was
confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the

company. Accordingly, you are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for
unfair labor practice, illegal dismissal, and illegal suspension. 17

In his decision18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of
unfair labor practice against petitioners. Nevertheless, he decided in favor of Catolico
because petitioners failed to "prove what [they] alleged as complainant's dishonesty,"
and to show that any investigation was conducted. Hence, the dismissal was without
just cause and due process. He thus declared the dismissal and suspension illegal but
disallowed reinstatement, as it would not be to the best interest of the parties.
Accordingly, he awarded separation pay to Catolico computed at one-half month's pay
for every year of service; back wages for one year; and the additional sum of P2,000.00
for illegal suspension "representing 30 days work." Arbiter Lopez computed the award in
favor of Catolico as follows:

30 days Preventive Suspension P2,000.00

Backwages 26,858.50
1/12 of P26,858.50 2,238.21
 Separation pay (3 years) 4,305.15
—————
TOTAL AWARD P35,401.86
—————

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside
because the Labor Arbiter erred in finding that Catolico was denied due process and
that there was no just cause to terminate her services.

In its decision19 of 30 September 1993, the NLRC affirmed the findings of the Labor
Arbiter on the ground that petitioners were not able to prove a just cause for Catolico's
dismissal from her employment. It found that petitioner's evidence consisted only of the
check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible in
evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution. 20 It
concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by

virtue of the constitutional right invoked by complainants, respondents' case falls
apart as it is bereft of evidence which cannot be used as a legal basis for
complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive
portion of the appealed decision by deleting the award for illegal suspension as the
same was already included in the computation of the aggregate of the awards in the
amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil
action for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its

findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III

of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving
"commissions" from YSP, or probably from other suppliers, and that the check issued to
her on 9 November 1989 was not the first or the last. They also maintained that Catolico
occupied a confidential position and that Catolico's receipt of YSP's check, aggravated
by her "propensity to violate company rules," constituted breach of confidence. And
contrary to the findings of NLRC, Catolico was given ample opportunity to explain her
side of the controversy.
Anent the third ground, petitioners submit that, in light of the decision in the People
v. Marti,21 the constitutional protection against unreasonable searches and seizures
refers to the immunity of one's person from interference by government and cannot be
extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG)
disagreed with the NLRC's decision, as it was of the persuasion that (a) the conclusions
reached by public respondent are inconsistent with its findings of fact; and (b) the
incident involving the opening of envelope addressed to private respondent does not
warrant the application of the constitutional provisions. It observed that Catolico was
given "several opportunities" to explain her side of the check controversy, and
concluded that the opportunities granted her and her subsequent explanation "satisfy
the requirements of just cause and due process." The OSG was also convinced that
Catolico's dismissal was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was a Christmas gift from
YSP, constituted substantial evidence of dishonesty. Finally, the OSG echoed
petitioners' argument that there was no violation of the right of privacy of communication
in this case,22 adding that petitioner WATEROUS was justified in opening an envelope
from one of its regular suppliers as it could assume that the letter was a business
communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG,
the NLRC contends that petitioners miserably failed to prove their claim that it
committed grave abuse of discretion in its findings of fact. It then prays that we dismiss
this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her
dismissal. The check in issue was given to her, and she had no duty to turn it over to
her employer. Company rules do not prohibit an employee from accepting gifts from
clients, and there is no indication in the contentious check that it was meant as a refund
for overpriced medicines. Besides, the check was discovered in violation of the
constitutional provision on the right to privacy and communication; hence, as correctly
held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response
that she never received a check were sufficient to justify her dismissal. When she
denied having received a check from YSP, she meant that she did not receive any
refund of overprice, consistent with her position that what she received was a token gift.
All that can be gathered from the audit report is that there was apparently an
overcharge, with no basis to conclude that Catolico pocketed the amount in collusion
with YSP. She thus concluded that her dismissal was based on a mere suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle "confidential
information or sensitive properties." She was doing the task of a saleslady: selling drugs
and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to
the third ground, the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an
employee be apprised of the charge against him, given reasonable time to answer the
charge, allowed ample opportunity to be heard and defend himself, and assisted by a
representative if the employee so
desires.23 Ample opportunity connotes every kind of assistance that management must
accord the employee to enable him to prepare adequately for his defense, including
legal representation.24

In the case at bar, although Catolico was given an opportunity to explain her side, she
was dismissed from the service in the memorandum of 5 March 1990 issued by her
Supervisor after receipt of her letter and that of her counsel. No hearing was ever
conducted after the issues were joined through said letters. The Supervisor's
memorandum spoke of "evidences [sic] in [WATEROUS] possession," which were not,
however, submitted. What the "evidences" [sic] other than the sales invoice and the
check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to
prove just and valid cause for dismissing an employee, and its failure to discharge that
burden would result in a finding that the dismissal is unjustified. 25 Here, WATEROUS
proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of
an alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence
does not establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who
claims to have discovered Catolico's inappropriate transaction, stated in his affidavit: 26

4. My findings revealed that on or before the month of July 31, 1989, Ms.
Catolico in violation of the [company] procedure, made an under the table deal
with YSP Phils. to supply WDRC needed medicines like Voren tablets at a jack-
up price of P384.00 per bottle of 50 mg. which has a previous price of only
P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out
that the cost per bottle was indeed overpriced. The Accounting Department of
YSP Phils. through Ms. Estelita Reyes confirmed that there was really an
overprice and she said that the difference was refunded through their check
voucher no. 629552 which was shown to me and the payee is Melodia Catolico,
through a China Bank Check No. 892068 dated November 9, 1989.
It clearly appears then that Catolico's dismissal was based on hearsay information.
Estelita Reyes never testified nor executed an affidavit relative to this case; thus, we
have to reject the statements attributed to her by Valdez. Hearsay evidence carries no
probative value.27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez
informed Co, through the former's memorandum28 of 29 January 1990, that
WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the said check was
never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not
indicate an overcharge. The purchase order dated 16 August 1989 29 stated that the
Voren tablets cost P320.00 per box, while the purchase order dated 5 October
198930 priced the Voren tablets at P384.00 per bottle. The difference in price may then
be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets
were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M.
Lopez and approved by Vice President-General Manager Emma R. Co. The purchase
orders were silent as to Catolico's participation in the purchase. If the price increase
was objectionable to petitioners, they or their officers should have disapproved the
transaction. Consequently, petitioners had no one to blame for their predicament but
themselves. This set of facts emphasizes the exceedingly incredible situation proposed
by petitioners. Despite the memorandum warning Catolico not to negotiate with
suppliers of medicine, there was no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion
for Catolico to initiate, much less benefit from, what Valdez called an "under the table
deal" with YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in no case
can justify an employee's dismissal. Suspicion is not among the valid causes provided
by the Labor Code for the termination of
employment;31 and even the dismissal of an employee for loss of trust and confidence
must rest on substantial grounds and not on the employer's arbitrariness, whims,
caprices, or suspicion.32 Besides, Catolico was not shown to be a managerial employee,
to which class of employees the term "trust and confidence" is restricted. 33

As regards the constitutional violation upon which the NLRC anchored its decision, we
find no reason to revise the doctrine laid down in People vs. Marti34 that the Bill of
Rights does not protect citizens from unreasonable searches and seizures perpetrated
by private individuals. It is not true, as counsel for Catolico claims, that the citizens have
no recourse against such assaults. On the contrary, and as said counsel admits, such
an invasion gives rise to both criminal and civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement
would not be to the best interest of the parties, he correctly awarded separation pay to
Catolico. Separation pay in lieu of reinstatement is computed at one month's salary for
every year of service.35 In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half month's salary for every year of service. Catolico did not
oppose or raise an objection. As such, we will uphold the award of separation pay as
fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision
and resolution of the National Labor Relations Commission dated 30 September 1993
and 2 December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED,
except as to its reason for upholding the Labor Arbiter's decision, viz., that the evidence
against private respondent was inadmissible for having been obtained in violation of her
constitutional rights of privacy of communication and against unreasonable searches
and seizures which is hereby set aside.

Costs against petitioners.

G.R. No. 135882            June 27, 2001

LOURDES T. MARQUEZ, in her capacity as Branch Manager, UNION BANK OF THE

PHILIPPINES, petitioner,
vs.
HONORABLE ANIANO A. DESIERTO, in his capacity as OMBUDSMAN, ANGEL C.
MAYOR-ALGO, JR., MARY ANN CORPUZ-MANALAC AND JOSE T. DE JESUS,
JR., in their capacity as Chairman and Members of the Panel, respectively,
respondents.

PARDO, J.:

In the petition at bar, petitioner seeks to --

a. Annul and set aside, for having been issued without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack of jurisdiction, respondents'
order dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes
T. Marquez for indirect contempt, received by counsel of September 9,1998, and
their order dated October 14,1998, denying Marquez's motion for reconsideration
dated September 10, 1998, received by counsel on October 20, 1998.

b. Prohibit respondents from implementing their order dated October 14, 1998, in
proceeding with the hearing of the motion to cite Marquez for indirect contempt,
through the issuance by this Court of a temporary restraining order and/or
preliminary injunction.1

The antecedent facts are as follows:

Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman
Aniano A. Desierto dated April 29, 1998, to produce several bank documents for
purposes of inspection in camera relative to various accounts maintained at Union Bank
of the Philippines, Julia Vargas Branch, where petitioner is the branch manager. The
accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and
245-30318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding
and Intelligence Bureau (FFIB) v. Amado Lagdameo, et al. The order further states:

"It is worth mentioning that the power of the Ombudsman to investigate and to
require the production and inspection of records and documents is sanctioned by
the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as
Ombudsman Act of 1989 and under existing jurisprudence on the matter. It must
be noted that R.A. 6770 especially Section 15 thereof provides, among others,
the following powers, functions and duties of the Ombudsman, to wit:

xxx

(8) Administer oaths, issue subpoena duces tecum and take testimony in any
investigation or inquiry, including the power to examine and have access to
banks accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the
same procedure and with the same penalties provided therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on
the Secrecy of Bank Deposits (R.A.1405) and places the office of the
Ombudsman in the same footing as the courts of law in this regard." 2

The basis of the Ombudsman in ordering an in camera inspection of the accounts is a

trail managers checks purchased by one George Trivinio, a respondent in OMB-097-
0411, pending with the office of the Ombudsman.

It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks
(MCs) for a total amount of P272.1 Million at Traders Royal Bank, United Nations
Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the
amount of P70.6 million, were deposited and credited to an account maintained at the
Union Bank, Julia Vargas Branch.3

On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez
and Atty. Fe B. Macalino at the bank's main office, Ayala Avenue, Makati City. The
meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks
furnished by Traders Royal Bank. After convincing themselves of the veracity of the
checks, Atty. Macalino advised Ms. Marquez to comply with the order of the
Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.4
However, on June 4,1998, petitioner wrote the Ombudsman explaining to him that the
accounts in question cannot readily be identified and asked for time to respond to the
order. The reason forwarded by the petitioner was that "despite diligent efforts and from
the accounts numbers presented, we can not identify these accounts since the checks
are issued in cash or bearer. We surmised that these accounts have long been
dormant, hence are not covered by the new account number generated by the Union
Bank system. We therefore have to verify from the Interbank records archives for the
whereabouts of these accounts.5

The Ombudsman, responding to the request of the petitioner for time to comply with the
order, stated: "firstly, it must be emphasized that Union Bank, Julia Vargas Branch was
depositary bank of the subject Traders Royal Bank Manager's Check (MCs), as shown
at its dorsal portion and as cleared by the Philippines Clearing House, not the
International Corporate Bank.

Notwithstanding the facts that the checks were payable to cash or bearer, nonetheless,
the name of the depositor(s) could easily be identified since the account numbers x x x
where said checks were deposited are identified in the order.

Even assuming that the accounts xxx were already classified as "dormant accounts,"
the bank is still required to preserve the records pertaining to the accounts within a
certain period of time as required by existing banking rules and regulations.

And finally, the in camera inspection was already extended twice from May 13, 1998 to
June 3,1998 thereby giving the bank enough time within which to sufficiently comply
with the order."6

Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to
produce the bank documents relative to accounts in issue. The order states:

Viewed from the foregoing, your persistent refusal to comply with Ombudsman's
order in unjustified, and is merely intended to delay the investigation of the case.
Your act constitutes disobedience of or resistance to a lawful order issued by this
office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770.
The same may also constitute obstruction in the lawful exercise of the functions
of the Ombudsman which is punishable under Section 36 of R.A. 6770. 7

On July 10,1998, petitioner together with Union Bank of the Philippines, filed a petition
for declaratory relief, prohibition and injunctions 8 with the Regional Trial Court, Makati
City, against the Ombudsman.

The petition was intended to clear the rights and duties of petitioner. Thus, petitioner
sought a declaration of her rights from the court due to the clear conflict between RA
No.6770, Section 15 and R.A. No. 1405, Sections 2 and 3.
Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and
the other persons acting under his authority were continuously harassing her to produce
the bank documents relatives to the accounts in question. Moreover, on June 16, 1998,
the Ombudsman issued another order stating that unless petitioner appeared before the
FFIB with the documents requested, petitioner manager would be charged with indirect
contempt and obstruction of justice.

In the meantime,9 on July 14, 1998, the lower court denied petitioner's prayer for a
temporary restraining order and stated us:

"After hearing the arguments of the parties, the court finds the application for a
Temporary Restraining Order to be without merit.

"Since the application prays for restraint of the respondent, in the exercise of his
contempt powers under Section 15(9) in relation to paragraph (8) of RA. 6770,
known as " The Ombudsman Act of 1989", there is no great or irreparable injury
from which petitioners may suffer, if respondent is not so restrained. Respondent
should he decide to exercise his contempt powers would still have to apply with
the court. x x x Anyone who, without lawful excuse x x x refuses to produce
documents for inspection, when thereunto lawfully required shall be subject to
discipline as in case of contempt of Court and upon application of the individual
or body exercising the power in question shall be dealt with by the Judge of the
First Instance (now RTC) having jurisdiction of the case in a manner provided by
the law (section 580 of the Revised Administrative Code). Under the present
Constitution only judges may issue warrants, hence, respondent should apply
with the Court for the issuance of the warrant needed for the enforcement of his
contempt orders. It is in these proceedings where petitioner may question the
propriety of respondent's exercise of his contempt powers. Petitioners are not
therefore left without any adequate remedy.

"The questioned orders were issued with the investigation of the case of Fact-
Finding and Intelligence Bureau vs. Amado Lagdameo, et. al., OMB-0-97-0411,
for violation of RA. 3019. Since petitioner failed to show prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the Office of
the Ombudsman, no writ of injunction may be issued by this Court to delay this
investigation pursuant to section 14 of Ombudsman Act of 1989." 10

On July 20,1998, petitioner filed a motion for reconsideration based on the following
grounds:

a. Petitioners' application for filed Temporary Restraining Order is not only to

restrain the Ombudsman from exercising his contempt powers, but to stop him
from implementing his Orders dated April 29, 1998 and June 16, 1998: and

b. The subject matter of the investigation being conducted by the Ombudsman at

petitioners' premises is outside his jurisdiction.11
On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory
relief12 on the ground that the Regional Trial Court has no jurisdiction to hear a petition
for relief from the findings and orders of the Ombudsman, citing R.A. No. 6770, Sections
14 and 27. On August 7, 1998, the Ombudsman filed an opposition to petitioner's
motion for reconsideration dated July 20, 1998. 13

On August 19,1998, the lower court denied petitioner's motion for reconsideration, 14 and
also the Ombudsman's motion to dismiss. 15

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt,
filed with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact Finding
and Intelligence Bureau (FFIB).16

On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to
cite her in contempt on the ground that the filing thereof was premature due to the
petition pending in the lower court.17 Petitioner likewise reiterated that she had no
intention to disobey the orders of the Ombudsman. However, she wanted to be clarified
as to how she would comply with the orders without her breaking any law, particularly
RA. No. 1405.18

Respondent Ombudsman panel set the incident for hearing on September 7,

1998.19 After hearing, the panel issued an order dated September 7, 1998, ordering
petitioner and counsel to appear for a continuation of the hearing of the contempt
charges against her.20

On September 10, 1998, petitioner filed with the Ombudsman a motion for
reconsideration of the above order. 21 Her motion was premised on the fact that there
was a pending case with the Regional Trial Court, Makati City, 22 which would determine
whether obeying the orders of the Ombudsman to produce bank documents would not
violate any law.

The FFIB opposed the motion,23 and on October 14, 1998, the Ombudsman denied the
motion by order the dispositive portion of which reads:

"Wherefore, respondent Lourdes T. Marquez's motion for reconsideration is

hereby DENIED, for lack of merit. Let the hearing of the motion of the Fact
Finding Intelligence Bureau (FFIB) to cite her for indirect contempt to be
intransferrably set to 29 October 1998 at 2:00 o'clock p.m. at which date and time
she should appear personally to submit her additional evidence. Failure to do so
shall be deemed a waiver thereof."24

Hence, the present petition.25

The issue is whether petitioner may be cited for indirect contempt for her failure to
produce the documents requested by the Ombudsman. And whether the order of the
Ombudsman to have an in camera inspection of the questioned account is allowed as
an exception to the law on secrecy of bank deposits (R.A. No.1405).

An examination of the secrecy of bank deposits law (R.A. No.1405) would reveal the
following exceptions:

1. Where the depositor consents in writing;

2. Impeachment case;

3. By court order in bribery or dereliction of duty cases against public officials;

4. Deposit is subject of litigation;

5. Sec. 8, R.A. No.3019, in cases of unexplained wealth as held in the case of

PNB vs. Gancayco.26

The order of the Ombudsman to produce for in camera inspection the subject accounts
with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending
investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for
violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement
between the Public Estates Authority and AMARI.

We rule that before an in camera inspection may be allowed, there must be a pending
case before a court of competent jurisdiction. Further, the account must be clearly
identified, the inspection limited to the subject matter of the pending case before the
court of competent jurisdiction. The bank personnel and the account holder must be
notified to be present during the inspection, and such inspection may cover only the
account identified in the pending case.

In Union Bank of the Philippines v. Court of Appeals, we held that "Section 2 of the Law
on Secrecy of Bank Deposits, as amended, declares bank deposits to be "absolutely
confidential" except:

(1) In an examination made in the course of a special or general examination of a

bank that is specifically authorized by the Monetary Board after being satisfied
that there is reasonable ground to believe that a bank fraud or serious irregularity
has been or is being committed and that it is necessary to look into the deposit to
establish such fraud or irregularity,

(2) In an examination made by an independent auditor hired by the bank to

conduct its regular audit provided that the examination is for audit purposes only
and the results thereof shall be for the exclusive use of the bank,

(3) Upon written permission of the depositor,

 (4) In cases of impeachment,

(5) Upon order of a competent court in cases of bribery or dereliction of duty of

public officials, or

(6) In cases where the money deposited or invested is the subject matter of the
litigation".27

In the case at bar, there is yet no pending litigation before any court of competent
authority. What is existing is an investigation by the Office of the Ombudsman. In short,
what the office of the ombudsman would wish to do is to fish for additional evidence to
formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was
no pending case in court which would warrant the opening of the bank account for
inspection.

Zone of privacy are recognized and protected in our laws. The Civil Code provides that"
[e]very person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons" and punishes as actionable torts several acts for
meddling and prying into the privacy of another. It also holds public officer or employee
or any private individual liable for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and other private communications.
The Revised Penal Code makes a crime of the violation of secrets by an officer,
revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is
an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank
Deposits Act, and the Intellectual Property Code.28

IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and

desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place
to comply with the order dated October 14,1998, and similar orders. No costs.

G.R. No. 127685 July 23, 1998

BLAS F. OPLE, petitioner,

vs.

RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO

HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER
and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference System"
on two important constitutional grounds, viz: one, it is a usurpation of the power
of Congress to legislate, and two, it impermissibly intrudes on our citizenry's
protected zone of privacy. We grant the petition for the rights sought to be
vindicated by the petitioner need stronger barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and
reads as follows:

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign

residents with the facility to conveniently transact business with
basic service and social security providers and other government
instrumentalities;

WHEREAS, this will require a computerized system to properly and

efficiently identify persons seeking basic services on social security
and reduce, if not totally eradicate fraudulent transactions and
misrepresentations;

WHEREAS, a concerted and collaborative effort among the various

basic services and social security providing agencies and other
government intrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of

the Philippines, by virtue of the powers vested in me by law, do
hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification

Reference System. A decentralized Identification Reference System
among the key basic services and social security providers is hereby
established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency

Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby

designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number

(PRN) generated by the NSO shall serve as the common reference
number to establish a linkage among concerned agencies. The IACC
Secretariat shall coordinate with the different Social Security and
Services Agencies to establish the standards in the use of
Biometrics Technology and in computer application designs of their
respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office

of the Press Secretary, in coordination with the National Statistics
Office, the GSIS and SSS as lead agencies and other concerned
agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on
the importance and use of the PRN and the Social Security
Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the

system shall be sourced from the respective budgets of the
concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS

shall submit regular reports to the Office of the President through
the IACC, on the status of implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect

immediately.
 DONE in the City of Manila, this 12th day of December in the year of
Our Lord, Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January
22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant
petition against respondents, then Executive Secretary Ruben Torres and the
heads of the government agencies, who as members of the Inter-Agency
Coordinating Committee, are charged with the implementation of A.O. No. 308. On
April 8, 1997, we issued a temporary restraining order enjoining its
implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT

FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION. 2

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM
THE BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN

PRIVACY. 3
We now resolve.

As is usual in constitutional litigation, respondents raise the threshold issues

relating to the standing to sue of the petitioner and the justiciability of the case at
bar. More specifically, respondents aver that petitioner has no legal interest to
uphold and that the implementing rules of A.O. No. 308 have yet to be
promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a

distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308
is a usurpation of legislative power. 4 As taxpayer and member of the Government
Service Insurance System (GSIS), petitioner can also impugn the legality of the
misalignment of public funds and the misuse of GSIS funds to implement A.O.
No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that
the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner
Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action
is not premature for the rules yet to be promulgated cannot cure its fatal defects.
Moreover, the respondents themselves have started the implementation of A.O.
No. 308 without waiting for the rules. As early as January 19, 1997, respondent
Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. 6 Respondent Executive
Secretary Torres has publicly announced that representatives from the GSIS and
the SSS have completed the guidelines for the national identification system. 7 All
signals from the respondents show their unswerving will to implement A.O. No.
308 and we need not wait for the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters insistence that we tighten the rule on
standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond the power of the President to
issue. He alleges that A.O. No. 308 establishes a system of identification that is
all-encompassing in scope, affects the life and liberty of every Filipino citizen and
foreign resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line
between the power of the Legislature to make laws and the power of the
Executive to execute laws will disturb their delicate balance of power and cannot
be allowed. Hence, the exercise by one branch of government of power belonging
to another will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and to
alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress
of the Philippines. 9 The grant of legislative power to Congress is broad, general
and comprehensive. 10 The legislative body possesses plenary power for all
purposes of civil government. 11 Any power, deemed to be legislative by usage
and tradition, is necessarily possessed by Congress, unless the Constitution has
lodged it elsewhere. 12 In fine, except as limited by the Constitution, either
expressly or impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest. 13

While Congress is vested with the power to enact laws, the President executes
the laws. 14 The executive power is vested in the Presidents. 15 It is generally
defined as the power to enforce and administer the laws. 16 It is the power of
carrying the laws into practical operation and enforcing their due observance. 17

As head of the Executive Department, the President is the Chief Executive. He

represents the government as a whole and sees to it that all laws are enforced by
the officials and employees of his department. 18 He has control over the
executive department, bureaus and offices. This means that he has the authority
to assume directly the functions of the executive department, bureau and office
or interfere with the discretion of its officials. 19 Corollary to the power of control,
the President also has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. Thus, he is granted
administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively. 20

Administrative power is concerned with the work of applying policies and

enforcing orders as determined by proper governmental organs. 21 It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders,
rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is:

Sec. 3. Administrative Orders. — Acts of the President which relate

to particular aspects of governmental operation in pursuance of his
duties as administrative head shall be promulgated in administrative
orders. 23
 An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative policy. 24 We reject
the argument that A.O. No. 308 implements the legislative policy of the
Administrative Code of 1987. The Code is a general law and "incorporates
in a unified document the major structural, functional and procedural
principles of governance." 25 and "embodies changes in administrative
structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII
on Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive
branch, the organization and functions of the Constitutional Commissions
and other constitutional bodies, the rules on the national government
budget, as well as guideline for the exercise by administrative agencies of
quasi-legislative and quasi-judicial powers. The Code covers both the
internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the
functions performed by administrative officials on private individuals or
parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a delicate
adjustment of various contending state policies — the primacy of national
security, the extent of privacy interest against dossier-gathering by government,
the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that
the A.O. No. 308 involves the all-important freedom of thought. As said
administrative order redefines the parameters of some basic rights of our
citizenry vis-a-vis the State as well as the line that separates the administrative
power of the President to make rules and the legislative power of Congress, it
ought to be evident that it deals with a subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and creates
no office. Under A.O. No. 308, a citizen cannot transact business with government
agencies delivering basic services to the people without the contemplated
identification card. No citizen will refuse to get this identification card for no one
can avoid dealing with government. It is thus clear as daylight that without the ID,
a citizen will have difficulty exercising his rights and enjoying his privileges.
Given this reality, the contention that A.O. No. 308 gives no right and imposes no
duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining the
traditional limits of administrative legislation. As well stated by Fisher: ". . . Many
regulations however, bear directly on the public. It is here that administrative
legislation must he restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that Congress enacts
in the form of a public law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is not an independent
source of power to make laws." 28

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be
let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States
Supreme Court gave more substance to the right of privacy when it ruled that the
right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments, 31 viz:

Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and
substance . . . various guarantees create zones of privacy. The right
of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers "in any house" in time of peace
without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ''right of the people to be
secure in their persons, houses and effects, against unreasonable
searches and seizures." The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment.
The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that
there is a constitutional right to privacy. Speaking thru Mr. Justice, later
Chief Justice, Enrique Fernando, we held:

x x x           x x x          x x x
 The Griswold case invalidated a Connecticut statute which made the
use of contraceptives a criminal offence on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The constitutional
right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is

accorded recognition independently of its identification with liberty;
in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual,
in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from
the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age
— industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian
society."

Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall

be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protectad in various provisions of

the Bill of Rights, viz: 34

Sec. 1. No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied the equal
protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses

papers, and effects against unreasonable searches and seizures of
 whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.

x x x           x x x          x x x

Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety, or public health as
may be provided by law.

x x x           x x x          x x x

Sec. 8. The right of the people, including those employed in the

public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against

himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy
of another. 35 It also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual
Property Code. 43 The Rules of Court on privileged communication likewise
recognize the privacy of certain information. 44

Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens and foreigners with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if
not totally eradicate, fraudulent transactions and misrepresentations by persons
seeking basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented
will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage
among concerned agencies" through the use of "Biometrics Technology" and
"computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to

biological facts; a mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the individual's
own physiological and behavioral characteristics. 46 A physiological
characteristic is a relatively stable physical characteristic such as a fingerprint,
retinal scan, hand geometry or facial features. A behavioral characteristic is
influenced by the individual's personality and includes voice print, signature and
keystroke. 47 Most biometric idenfication systems use a card or personal
identificatin number (PIN) for initial identification. The biometric measurement is
used to verify that the individual holding the card or entering the PIN is the
legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology

scans a fingertip and turns the unique pattern therein into an individual number
which is called a biocrypt. The biocrypt is stored in computer data banks 49 and
becomes a means of identifying an individual using a service. This technology
requires one's fingertip to be scanned every time service or access is
provided. 50 Another method is the retinal scan. Retinal scan technology employs
optical technology to map the capillary pattern of the retina of the eye. This
technology produces a unique print similar to a finger print. 51 Another biometric
method is known as the "artificial nose." This device chemically analyzes the
unique combination of substances excreted from the skin of people. 52 The latest
on the list of biometric achievements is the thermogram. Scientists have found
that by taking pictures of a face using infra-red cameras, a unique heat
distribution pattern is seen. The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat signature." 53

In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited to
the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state what
specific biological characteristics and what particular biometrics technology shall
be used to identify people who will seek its coverage. Considering the banquest
of options available to the implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information alone
for identification purposes. In fact, the Solicitor General claims that the adoption
of the Identification Reference System will contribute to the "generation of
population data for development planning." 54 This is an admission that the PRN
will not be used solely for identification but the generation of other data with
remote relation to the avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the government the roving authority to
store and retrieve information for a purpose other than the identification of the
individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be
undarplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency to
avail of basic services and security. His transactions with the government agency
will necessarily be recorded — whether it be in the computer or in the
documentary file of the agency. The individual's file may include his transactions
for loan availments, income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more frequent the use of
the PRN, the better the chance of building a huge formidable informatin base
through the electronic linkage of the files. 55 The data may be gathered for gainful
and useful government purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation to misuse, a temptation that
may be too great for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal infomation about the individual. 57 Even
that hospitable assumption will not save A.O. No. 308 from constitutional infirmity
for again said order does not tell us in clear and categorical terms how these
information gathered shall he handled. It does not provide who shall control and
access the data, under what circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage gives other government
agencies access to the information. Yet, there are no controls to guard against
leakage of information. When the access code of the control programs of the
particular computer system is broken, an intruder, without fear of sanction or
penalty, can make use of the data for whatever purpose, or worse, manipulate the
data stored within the system. 59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed for
unequivocally specified purposes. 60 The lack of proper safeguards in this regard
of A.O. No. 308 may interfere with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and circumvent the
right against self-incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable searches and
seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. 62 They threaten the very abuses that the Bill of
Rights seeks to prevent. 63

The ability of sophisticated data center to generate a comprehensive cradle-to-

grave dossier on an individual and transmit it over a national network is one of
the most graphic threats of the computer revolution. 64 The computer is capable
of producing a comprehensive dossier on individuals out of information given at
different times and for varied purposes. 65 It can continue adding to the stored
data and keeping the information up to date. Retrieval of stored date is simple.
When information of a privileged character finds its way into the computer, it can
be extracted together with other data on the subject. 66 Once extracted, the
information is putty in the hands of any person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions
would dismiss its danger to the right to privacy as speculative and hypothetical.
Again, we cannot countenance such a laidback posture. The Court will not be true
to its role as the ultimate guardian of the people's liberty if it would not
immediately smother the sparks that endanger their rights but would rather wait
for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a

reasonable expectation of privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2) whether
this expectation is one that society recognizes as reasonable. 67 The factual
circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical surroundings
and practices of a particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in A.O. No. 308
does not assure the individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable expectation diminishes as
relevant technology becomes more widely accepted. 72 The security of the
computer data file depends not only on the physical inaccessibility of the file but
also on the advances in hardware and software computer technology. A.O. No.
308 is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. gives the IACC virtually infettered discretion to determine the
metes and bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable

expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure by
any person of data furnished by the individual to the NSO with imprisonment and
fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS employment
records and reports. 74 These laws, however, apply to records and data with the
NSO and the SSS. It is not clear whether they may be applied to data with the
other government agencies forming part of the National ID System. The need to
clarify the penal aspect of A.O. No. 308 is another reason why its enactment
should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the
right of privacy by using the rational relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation
of basic government services, (2) eradicate fraud by avoiding duplication of
services, and (3) generate population data for development planning. He cocludes
that these purposes justify the incursions into the right to privacy for the means
are rationally related to the end. 76

We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the

constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in compelling a public officer to
make an annual report disclosing his assets and liabilities, his sources of income
and expenses, did not infringe on the individual's right to privacy. The law was
enacted to promote morality in public administration by curtailing and minimizing
the opportunities for official corruption and maintaining a standard of honesty in
the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a
statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently
detailed. The law is clear on what practices were prohibited and penalized, and it
was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have
been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for
it is not narrowly drawn. And we now hod that when the integrity of a fundamental
right is at stake, this court will give the challenged law, administrative order, rule
or regulation a stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official duties. Nor is it enough
for the authorities to prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act irrationally.
They must satisfactorily show the presence of compelling state interests and that
the law, rule or regulation is narrowly drawn to preclude abuses. This approach is
demanded by the 1987 Constitution whose entire matrix is designed to protect
human rights and to prevent authoritarianism. In case of doubt, the least we can
do is to lean towards the stance that will not put in danger the rights protected by
the Constitutions.

The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In

Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of the
names and addresses of all persons who obtained certain drugs pursuant to a
doctor's prescription. The New York State Controlled Substance Act of 1972
required physicians to identify parties obtaining prescription drugs enumerated
in the statute, i.e., drugs with a recognized medical use but with a potential for
abuse, so that the names and addresses of the patients can be recorded in a
centralized computer file of the State Department of Health. The plaintiffs, who
were patients and doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be readily
available and open to public disclosure; and that once disclosed, it may
stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded
a constitutionally protected zone of privacy, i.e., the individual interest in
avoiding disclosure of personal matters, and the interest in independence in
making certain kinds of important decisions. The U.S. Supreme Court held that
while an individual's interest in avoiding disclosuer of personal matter is an
aspect of the right to privacy, the statute did not pose a grievous threat to
establish a constitutional violation. The Court found that the statute was
necessary to aid in the enforcement of laws designed to minimize the misuse of
dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommmendation by a
specially appointed commission which held extensive hearings on the matter.
Moreover, the statute was narrowly drawn and contained numerous safeguards
against indiscriminate disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of the informatin. It
ebumerated who were authorized to access the data. It also prohibited public
disclosure of the data by imposing penalties for its violation. In view of these
safeguards, the infringement of the patients' right to privacy was justified by a
valid exercise of police power. As we discussed above, A.O. No. 308 lacks these
vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se agains the use of computers to accumulate, store, process, retvieve
and transmit data to improve our bureaucracy. Computers work wonders to
achieve the efficiency which both government and private industry seek. Many
information system in different countries make use of the computer to facilitate
important social objective, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those who
have to frame policy and make key decisions. 82 The benefits of the computer has
revolutionized information technology. It developed the internet, 83 introduced the
concept of cyberspace 84 and the information superhighway where the individual,
armed only with his personal computer, may surf and search all kinds and
classes of information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar
all incursions into individual privacy. The right is not intended to stifle scientific
and technological advancements that enhance public service and the common
good. It merely requires that the law be narrowly focused 85 and a compelling
interest justify such intrusions. 86 Intrusions into the right must be accompanied
by proper safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual privacy will
be subjected by this Court to strict scrutiny. The reason for this stance was laid
down in Morfe v. Mutuc, to wit:

The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic
disctinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in
other words, of the dignity and integrity of the individual — has
become increasingly important as modern society has developed. All
the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to maintain
and support this enclave of private life marks the difference between
a democratic and a totalitarian society. 87

IV

The right to privacy is one of the most threatened rights of man living in a mass
society. The threats emanate from various sources — governments, journalists,
employers, social scientists, etc. 88 In th case at bar, the threat comes from the
executive branch of government which by issuing A.O. No. 308 pressures the
people to surrender their privacy by giving information about themselves on the
pretext that it will facilitate delivery of basic services. Given the record-keeping
power of the computer, only the indifferent fail to perceive the danger that A.O.
No. 308 gives the government the power to compile a devastating dossier against
unsuspecting citizens. It is timely to take note of the well-worded warning of
Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an
unerasable record of his past and his limitations. In a way, the threat is that
because of its record-keeping, the society will have lost its benign capacity to
forget." 89 Oblivious to this counsel, the dissents still say we should not be too
quick in labelling the right to privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in our Constitution for
flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference System"
declared null and void for being unconstitutional.

G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES,

INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998, 1 we upheld the
validity of § 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or
air time for political ads, except to the Commission on Elections under §90, of B.P. No.
881, the Omnibus Election Code, with respect to print media, and §92, with respect to
broadcast media. In the present case, we consider the validity of §92 of B.P. Blg. No.
881 against claims that the requirement that radio and television time be given free
takes property without due process of law; that it violates the eminent domain clause of
the Constitution which provides for the payment of just compensation; that it denies
broadcast media the equal protection of the laws; and that, in any event, it violates the
terms of the franchise of petitioner GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an

organization of lawyers of radio and television broadcasting companies. They are suing
as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc.,
operates radio and television broadcasting stations throughout the Philippines under a
franchise granted by Congress.

Petitioners challenge the validity of §92 on the ground (1) that it takes property without
due process of law and without just compensation; (2) that it denies radio and television
broadcast companies the equal protection of the laws; and (3) that it is in excess of the
power given to the COMELEC to supervise or regulate the operation of media of
communication or information during the period of election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications
and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its
members assert an interest as lawyers of radio and television broadcasting companies
and as citizens, taxpayers, and registered voters.

In those cases2 in which citizens were authorized to sue, this Court upheld their
standing in view of the "transcendental importance" of the constitutional question raised
which justified the granting of relief. In contrast, in the case at bar, as will presently be
shown, petitioner's substantive claim is without merit. To the extent, therefore, that a
party's standing is determined by the substantive merit of his case or preliminary
estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a
citizen will be allowed to raise a constitutional question only when he can show that he
has personally suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury fairly is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action. 3 Members of
petitioner have not shown that they have suffered harm as a result of the operation of
§92 of B.P. Blg. 881.

Nor do members of petitioner TELEBAP have an interest as registered voters since this
case does not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881
should be precisely in upholding its validity.

Much less do they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power. 4 A party suing as a taxpayer must
specifically show that he has a 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.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of
radio and television broadcasting companies. Standing jus tertii will be recognized only
if it can be shown that the party suing has some substantial relation to the third party, or
that the third party cannot assert his constitutional right, or that the eight of the third
party will be diluted unless the party in court is allowed to espouse the third party's
constitutional claim. None of these circumstances is here present. The mere fact that
TELEBAP is composed of lawyers in the broadcast industry does not entitle them to
bring this suit in their name as representatives of the affected companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional
challenge. Petitioner operates radio and television broadcast stations in the Philippines
affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and television
broadcast companies to provide free air time to the COMELEC for the use of candidates
for campaign and other political purposes.

Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995
senatorial election and that it stands to suffer even more should it be required to do so
again this year. Petitioner's allegation that it will suffer losses again because it is
required to provide free air time is sufficient to give it standing to question the validity of
§92.5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and
§90 and §92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed
to equalize the opportunity of candidates in an election in regard to the use of mass
media for political campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of

election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it
shall be unlawful:

x x x           x x x          x x x

(b) for any newspapers, radio broadcasting or television station, or other mass
media, or any person making use of the mass media to sell or to give free of
charge print space or air time for campaign or other political purposes except to
the Commission as provided under Section 90 and 92 of Batas Pambansa Blg.
881. Any mass media columnist, commentator, announcer or personality who is
a candidate for any elective public office shall take a leave of absence from his
work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. — The Commission shall procure space in at least one
newspaper of general circulation in every province or city; Provided,
however, That in the absence of said newspaper, publication shall be done in
any other magazine or periodical in said province or city, which shall be known
as "Comelec Space" wherein candidates can announce their candidacy. Said
space shall be allocated, free of charge, equally and impartially by the
Commission among all candidates within the area in which the newspaper is
circulated. (Sec. 45, 1978 EC).
 Sec. 92. Comelec time. — The commission shall procure radio and television
time to be known as "Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of all radio and
television stations. For this purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to provide radio or television time,
free of charge, during the period of the campaign. (Sec. 46, 1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to
the candidates and requires the COMELEC instead to procure print space and air time
for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881 requires
the COMELEC to procure print space which, as we have held, should be paid for, §92
states that air time shall be procured by the COMELEC free of charge.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause 6 and the
eminent domain provision7 of the Constitution by taking air time from radio and
television broadcasting stations without payment of just compensation. Petitioners claim
that the primary source of revenue of the radio and television stations is the sale of air
time to advertisers and that to require these stations to provide free air time is to
authorize a taking which is not "a de minimis temporary limitation or restraint upon the
use of private property." According to petitioners, in 1992, the GMA Network, Inc. lost
P22,498,560.00 in providing free air time of one (1) hour every morning from Mondays
to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime
time) and, in this year's elections, it stands to lose P58,980,850.00 in view of
COMELEC'S requirement that radio and television stations provide at least 30 minutes
of prime time daily for the COMELEC Time.8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television

stations, is licensed by the government. Airwave frequencies have to be allocated as
there are more individuals who want to broadcast than there are frequencies to
assign.9 A franchise is thus a privilege subject, among other things, to amended by
Congress in accordance with the constitutional provision that "any such franchise or
right granted . . . shall be subject to amendment, alteration or repeal by the Congress
when the common good so requires." 10

The idea that broadcast stations may be required to provide COMELEC Time free of
charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which
provided:

Sec. 49. Regulation of election propaganda through mass media. — (a) The

franchise of all radio broadcasting and television stations are hereby amended so
as to require each such station to furnish free of charge, upon request of the
Commission [on Elections], during the period of sixty days before the election not
more than fifteen minutes of prime time once a week which shall be known as
"Comelec Time" and which shall be used exclusively by the Commission to
disseminate vital election information. Said "Comelec Time" shall be considered
as part of the public service time said stations are required to furnish the
 Government for the dissemination of public information and education under their
respective franchises or permits.

The provision was carried over with slight modification by the 1978 Election Code (P.D.
No. 1296), which provided:

Sec. 46. COMELEC Time. — The Commission [on Elections] 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 said
radio and television stations. For this purpose, the franchises of all radio
broadcasting and television stations are hereby amended so as to require such
stations to furnish the Commission radio or television time, free of charge, during
the period of the campaign, at least once but not oftener than every other day.

Substantially the same provision is now embodied in §92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case was
brought, such provisions had not been thought of as taking property without just
compensation. Art. XII, §11 of the Constitution authorizes the amendment of franchises
for "the common good." What better measure can be conceived for the common good
than one for free air time for the benefit not only of candidates but even more of the
public, particularly the voters, so that they will be fully informed of the issues in an
election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters,
which is paramount."11

Nor indeed can there be any constitutional objection to the requirement that broadcast
stations give free air time. Even in the United States, there are responsible scholars
who believe that government controls on broadcast media can constitutionally be
instituted to ensure diversity of views and attention to public affairs to further the system
of free expression. For this purpose, broadcast stations may be required to give free air
time to candidates in an election. 12 Thus, Professor Cass R. Sunstein of the University
of Chicago Law School, in urging reforms in regulations affecting the broadcast industry,
writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most

important, government should ensure free media time for candidates. Almost all
European nations make such provisions; the United States does not. Perhaps
government should pay for such time on its own. Perhaps broadcasters should
have to offer it as a condition for receiving a license. Perhaps a commitment to
provide free time would count in favor of the grant of a license in the first
instance. Steps of this sort would simultaneously promote attention to public
affairs and greater diversity of view. They would also help overcome the
distorting effects of "soundbites" and the corrosive financial pressures faced by
candidates in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do
not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be burdened
with the performance by the grantee of some form of public service. Thus, in De Villata
v. Stanley,14 a regulation requiring interisland vessels licensed to engage in the
interisland trade to carry mail and, for this purpose, to give advance notice to postal
authorities of date and hour of sailings of vessels and of changes of sailing hours to
enable them to tender mail for transportation at the last practicable hour prior to the
vessel's departure, was held to be a reasonable condition for the state grant of license.
Although the question of compensation for the carriage of mail was not in issue, the
Court strongly implied that such service could be without compensation, as in fact under
Spanish sovereignty the mail was carried free.15

In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the PLDT
to allow the interconnection of its domestic telephone system with the international
gateway facility of Eastern Telecom. The Court cited (1) the provisions of the legislative
franchise allowing such interconnection; (2) the absence of any physical, technical, or
economic basis for restricting the linking up of two separate telephone systems; and (3)
the possibility of increase in the volume of international traffic and more efficient service,
at more moderate cost, as a result of interconnection.

Similarly, in the earlier case of PLDT v. NTC,17 it was held:

Such regulation of the use and ownership of telecommunications systems is in

the exercise of the plenary police power of the State for the promotion of the
general welfare. The 1987 Constitution recognizes the existence of that power
when it provides:

Sec. 6. The use of property bears a social function, and all

economic agents shall contribute to the common good. Individuals
and private groups, including corporations, cooperatives, and
similar collective organizations, shall have the right to own,
establish, and operate economic enterprises, subject to the duty of
the State to promote distributive justice and to intervene when the
common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention"

with property rights dictated by "the objective of government to promote the rapid
expansion of telecommunications services in all areas of the Philippines, . . . to
maximize the use of telecommunications facilities available, . . . in recognition of
the vital role of communications in nation building . . . and to ensure that all users
of the public telecommunications service have access to all other users of the
service wherever they may be within the Philippines at an acceptable standard of
service and at reasonable cost" (DOTC Circular No. 90-248). Undoubtedly, the
encompassing objective is the common good. The NTC, as the regulatory
 agency of the State, merely exercised its delegated authority to regulate the use
of telecommunications networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising
radio and television stations, the state spends considerable public funds in licensing and
supervising such stations. 18 It would be strange if it cannot even require the licensees
to render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The dissent cites the claim of
GMA Network that the grant of free air time to the COMELEC for the duration of the
1998 campaign period would cost the company P52,380,000, representing revenue it
would otherwise earn if the air time were sold to advertisers, and the amount of
P6,600,850, representing the cost of producing a program for the COMELEC Time, or
the total amount of P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from
advertising is based on the assumption that air time is "finished product" which, it is
said, become the property of the company, like oil produced from refining or similar
natural resources after undergoing a process for their production. But air time is not
owned by broadcast companies. As held in Red Lion Broadcasting
Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply, "licenses
to broadcast do not confer ownership of designated frequencies, but only the temporary
privilege of using them." Consequently, "a license permits broadcasting, but the license
has no constitutional right to be the one who holds the license or to monopolize a radio
frequency to the exclusion of his fellow citizens. There is nothing in the First
Amendment which prevents the Government from requiring a licensee to share his
frequency with others and to conduct himself as a proxy or fiduciary with obligations to
present those views and voices which are representative of his community and which
would otherwise, by necessity, be barred from the airwaves." 20 As radio and television
broadcast stations do not own the airwaves, no private property is taken by the
requirement that they provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that
"the air lanes themselves 'are not property because they cannot be appropriated for the
benefit of any individual.'" (p. 5) That means neither the State nor the stations own the
air lanes. Yet the dissent also says that "The franchise holders can recover their huge
investments only by selling air time to advertisers." (p. 13) If air lanes cannot be
appropriated, how can they be used to produce air time which the franchise holders can
sell to recover their investment? There is a contradiction here.

As to the additional amount of P6,600,850, it is claimed that this is the cost of producing
a program and it is for such items as "sets and props," "video tapes," "miscellaneous
(other rental, supplies, transportation, etc.)," and "technical facilities (technical crew
such as director and cameraman as well as 'on air plugs')." There is no basis for this
claim. Expenses for these items will be for the account of the candidates. COMELEC
Resolution No. 2983, §6(d) specifically provides in this connection:

(d) Additional services such as tape-recording or video-taping of programs, the

preparation of visual aids, terms and condition thereof, and consideration to be
paid therefor may be arranged by the candidates with the radio/television station
concerned. However, no radio/television station shall make any discrimination
among candidates relative to charges, terms, practices or facilities for in
connection with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth
millions of pesos, the unsubstantiated charge is made that by its decision the Court
permits the "grand larceny of precious time," and allows itself to become "the people's
unwitting oppressor." The charge is really unfortunate. In Jackson
v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of property owners
to the erection of party walls that he was led to say in his original draft, "a statute, which
embodies the community's understanding of the reciprocal rights and duties of
neighboring landowners, does not need to invoke the penalty larceny of the police
power in its justification." Holmes's brethren corrected his taste, and Holmes had to
amend the passage so that in the end it spoke only of invoking "the police
power."22 Justice Holmes spoke of the "petty larceny" of the police power. Now we are
being told of the "grand larceny [by means of the police power] of precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted
GMA Network, Inc. a franchise for the operation of radio and television broadcasting
stations. They argue that although §5 of R.A. No. 7252 gives the government the power
to temporarily use and operate the stations of petitioner GMA Network or to authorize
such use and operation, the exercise of this right must be compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. — A special right is hereby reserved to the

President of the Philippines, in times of rebellion, public peril, calamity,
emergency, disaster or disturbance of peace and order, to temporarily take over
and operate the stations of the grantee, to temporarily suspend the operation of
any station in the interest of public safety, security and public welfare, or to
authorize the temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of said stations
during the period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for
COMELEC Time constitutes the use and operation of the stations of the GMA Network,
Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC does not take over the
operation of radio and television stations but only the allocation of air time to the
candidates for the purpose of ensuring, among other things, equal opportunity, time,
and the right to reply as mandated by the Constitution. 23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that
B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually antedated
it.24 The provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated in
R.A. No. 7252. And, indeed, §4 of the latter statute does.

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render
"adequate public service time" implements §92 of B.P. Blg. 881. Undoubtedly, its
purpose is to enable the government to communicate with the people on matters of
public interest. Thus, R.A. No. 7252 provides:

Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public
service time to enable the Government, through the said broadcasting stations,
to reach the population on important public issues; provide at all times sound and
balanced programming; promote public participation such as in community
programming; assist in the functions of public information and education; conform
to the ethics of honest enterprise; and not use its station for the broadcasting of
obscene and indecent language, speech, act or scene, or for the dissemination
of deliberately false information or willful misrepresentation, or to the detriment of
the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added).

It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken,
expressly provided that the COMELEC Time should "be considered as part of the public
service time said stations are required to furnish the Government for the dissemination
of public information and education under their respective franchises or permits." There
is no reason to suppose that §92 of B.P. Blg. 881 considers the COMELEC Time
therein provided to be otherwise than as a public service which petitioner is required to
render under §4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, §92 is not an
invalid amendment of petitioner's franchise but the enforcement of a duty voluntarily
assumed by petitioner in accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for
free air time without taking into account COMELEC Resolution No. 2983-A, §2 of which
states:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television

station operating under franchise shall grant the Commission, upon payment of
just compensation, at least thirty (30) minutes of prime time daily, to be known as
"Comelec Time", effective February 10, 1998 for candidates for President, Vice-
President and Senators, and effective March 27, 1998, for candidates for local
elective offices, until May 9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is
invalid, being in contravention of §92 of B.P. Blg. 881 that radio and television time
given during the period of the campaign shall be "free of charge." Indeed, Resolution
No. 2983 originally provided that the time allocated shall be "free of charge," just as §92
requires such time to be given "free of charge." The amendment appears to be a
reaction to petitioner's claim in this case that the original provision was unconstitutional
because it allegedly authorized the taking of property without just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more
dispute because the payment of compensation is now provided for. It is basic, however,
that an administrative agency cannot, in the exercise of lawmaking, amend a statute of
Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be invoked by the
parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring
free air time and that "theoretically the COMELEC can demand all of the air time of such
stations."25 Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily
sequesters radio and television time. What they claim is that because of the breadth of
the statutory language, the provision in question is susceptible of "unbridled, arbitrary
and oppressive exercise."26

The contention has no basis. For one, the COMELEC is required to procure free air time
for candidates "within the area of coverage" of a particular radio or television
broadcaster so that it cannot, for example, procure such time for candidates outside that
area. At what time of the day and how much time the COMELEC may procure will have
to be determined by it in relation to the overall objective of informing the public about the
candidates, their qualifications and their programs of government. As stated in Osmeña
v. COMELEC, the COMELEC Time provided for in §92, as well as the COMELEC
Space provided for in §90, is in lieu of paid ads which candidates are prohibited to have
under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in
determining the details of the COMELEC Time as well as those of the COMELEC
Space.

There would indeed be objection to the grant of power to the COMELEC if §92 were so
detailed as to leave no room for accommodation of the demands of radio and television
programming. For were that the case, there could be an intrusion into the editorial
prerogatives of radio and television stations.

Differential Treatment of
 Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to
provide free air time. They contend that newspapers and magazines are not similarly
required as, in fact, in Philippine Press Institute v. COMELEC,27 we upheld their right to
the payment of just compensation for the print space they may provide under §90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are
entitled to the same treatment under the free speech guarantee of the Constitution as
the print media. There are important differences in the characteristics of the two media,
however, which justify their differential treatment for free speech purposes. Because of
the physical limitations of the broadcast spectrum, the government must, of necessity,
allocate broadcast frequencies to those wishing to use them. There is no similar
justification for government allocation and regulation of the print media. 28

In the allocation of limited resources, relevant conditions may validly be imposed on the
grantees or licensees. The reason for this is that, as already noted, the government
spends public funds for the allocation and regulation of the broadcast industry, which it
does not do in the case of the print media. To require the radio and television broadcast
industry to provide free air time for the COMELEC Time is a fair exchange for what the
industry gets.

From another point of view, this Court has also held that because of the unique and
pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of television
and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media."29

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 he 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. 30
Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal
protection of the law has no basis. In addition, their plea that §92 (free air time) and
§11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave the
way for a return to the old regime where moneyed candidates could monopolize media
advertising to the disadvantage of candidates with less resources. That is what
Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not free
to set aside the judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC
under Art. IX-C, §4 of the Constitution does not include the power to prohibit. In the first
place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4 of the
Constitution,31 among other things, is the use by media of information of their franchises
or permits, while what Congress (not the COMELEC) prohibits is the sale or donation of
print space or air time for political ads. In other words, the object of supervision or
regulation is different from the object of the prohibition. It is another fallacy for
petitioners to contend that the power to regulate does not include the power to prohibit.
This may have force if the object of the power were the same.

In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC to
procure print space and air time for allocation to candidates. As we said in Osmeña
v. COMELEC:

The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is
misleading, for even as §11(b) prohibits the sale or donation of print space and
air time to political candidates, it mandates the COMELEC to procure and itself
allocate to the candidates space and time in the media. There is no suppression
of political ads but only a regulation of the time and manner of advertising.

x x x           x x x          x x x

. . . What is involved here is simply regulation of this nature. Instead of leaving

candidates to advertise freely in the mass media, the law provides for allocation,
by the COMELEC of print space and air time to give all candidates equal time
and space for the purpose of ensuring "free, orderly, honest, peaceful, and
credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC
Time and COMELEC Space are about the only means through which candidates can
advertise their qualifications and programs of government. More than merely depriving
their qualifications and programs of government. More than merely depriving candidates
of time for their ads, the failure of broadcast stations to provide air time unless paid by
the government would clearly deprive the people of their right to know. Art III, §7 of the
Constitution provides that "the right of the people to information on matters of public
concern shall be recognized," while Art. XII, §6 states that "the use of property bears a
social function [and] the right to own, establish, and operate economic enterprises [is]
subject to the duty of the State to promote distributive justice and to intervene when the
common good so demands."

To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues in an election
is maintained. For while broadcast media are not mere common carriers but entities
with free speech rights, they are also public trustees charged with the duty of ensuring
that the people have access to the diversity of views on political issues. This right of the
people is paramount to the autonomy of broadcast media. To affirm the validity of §92,
therefore, is likewise to uphold the people's right to information on matters of public
concern. The use of property bears a social function and is subject to the state's duty to
intervene for the common good. Broadcast media can find their just and highest reward
in the fact that whatever altruistic service they may render in connection with the holding
of elections is for that common good.

For the foregoing reasons, the petition is dismissed.

G.R. No. 133486           January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls — properly conducted and publicized —
can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21,
1998. In the said Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or

any other groups, its agents or representatives from conducting such exit survey
and to authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to
conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . .
vote during the elections for national officials particularly for President and Vice
President, results of which shall be [broadcast] immediately." 2 The electoral body
believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also
noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit
survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the Comelec to cease and desist, until further orders, from
implementing the assailed Resolution or the restraining order issued pursuant thereto, if
any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted
with grave abuse of discretion amounting to a lack or excess of jurisdiction when it
approved the issuance of a restraining order enjoining the petitioner or any [other
group], its agents or representatives from conducting exit polls during the . . . May 11
elections."3

In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up

additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to
seek a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May
11, 1998 election has already been held and done with. Allegedly, there is no longer
any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the
May 11, 1998 election, its implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic elections is a basic
feature of our democratic government. By its very nature, exit polling is tied up with
elections. To set aside the resolution of the issue now will only postpone a task that
could well crop up again in future elections.6

In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also
has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the
extent of protection given by constitutional guarantees." 7 Since the fundamental
freedoms of speech and of the press are being invoked here, we have resolved to
settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, specifically
the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice,8 when the issue involves the principle
of social justice or the protection of labor, 9 when the decision or resolution sought to be
set aside is a nullity,10 or when the need for relief is extremely urgent and certiorari is the
only adequate and speedy remedy available.11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21,
1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of
a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift resolution in time or the
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.

Main Issue:

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups

of individuals for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for, immediately
after they have officially cast their ballots. The results of the survey are announced to
the public, usually through the mass media, to give an advance overview of how, in the
opinion of the polling individuals or organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible

member of the mass media, committed to report balanced election-related data,
including "the exclusive results of Social Weather Station (SWS) surveys conducted in
fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately
and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec
gravely abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the
secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might
unduly confuse and influence the voters," and that the surveys were designed "to
condition the minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution; 12 and relevant
provisions of the Omnibus Election Code. 13 It submits that the constitutionally protected
freedoms invoked by petitioner "are not immune to regulation by the State in the
legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral
process," considering that they are not supervised by any government agency and can
in general be manipulated easily. He insists that these polls would sow confusion
among the voters and would undermine the official tabulation of votes conducted by the
Commission, as well as the quick count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can
thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally
ban exit polls? In answering this question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It

"is a 'preferred' right and, therefore, stands on a higher level than substantive economic
or other liberties. . . . [T]his must be so because the lessons of history, both political and
legal, illustrate that freedom of thought and speech is the indispensable condition of
nearly every other form of freedom."14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court
enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining

the truth, of securing participation by the people in social and political decision-making,
and of maintaining the balance between stability and change. 17 It represents a profound
commitment to the principle that debates on public issues should be uninhibited, robust,
and wide open.18 It means more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any of public consequence. And paraphrasing the eminent
Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought
we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances. 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. Fernandez22 this Court had occasion to discuss two theoretical test in

determining the validity of restrictions to such freedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency"
rule. The first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be "extremely serious and the
degree of imminence extremely high" before the utterance can be punished. The
danger to be guarded against is the "substantive evil" sought to be
prevented. . . .23

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as

follows: if the words uttered create a dangerous tendency which the state has a
right to prevent, then such words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general terms. Nor is it necessary that
the language used be reasonably calculated to incite persons to acts of force,
violence, or unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil which the legislative
body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly
did in its earlier decisions in Primicias v. 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. Comelec30 and, more recently, in Iglesia ni Cristo
v. MTRCB.31 In setting the standard or test for the "clear and present danger" doctrine,
the Court echoed the words of Justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree." 32

A limitation on the freedom of expression may be justified only by a danger of such

substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but very likely to be
inevitable.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] . . . an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and present danger to
the community or it has a dangerous tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the randomness of selecting interviewees,
which further make[s] the exit poll highly unreliable. The probability that the results of
such exit poll may not be in harmony with the official count made by the Comelec . . . is
ever present. In other words, the exit poll has a clear and present danger of destroying
the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature
of a survey, the interviewees or participants are selected at random, so that the results
will as much as possible be representative or reflective of the general sentiment or view
of the community or group polled. Second, the survey result is not meant to replace or
be at par with the official Comelec count. It consists merely of the opinion of the polling
group as to who the electorate in general has probably voted for, based on the limited
data gathered from polled individuals. Finally, not at stake here are the credibility and
the integrity of the elections, which are exercises that are separate and independent
from the exit polls. The holding and the reporting of the results of exit polls cannot
undermine those of the elections, since the former is only part of the latter. If at all, the
outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls —
disorder and confusion in the voting centers — does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad, since its application is
without qualification as to whether the polling is disruptive or not. 44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting centers. 45 There
is no showing, however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented proving that the presence of
exit poll reporters near an election precinct tends to create disorder or confuse the
voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their
use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answer to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices.1âwphi1.nêt

In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the
voters' choices is impermissible, so is impermissible, so is regulating speech via an exit
poll restriction.47

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

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

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

With the foregoing premises, we conclude that the interest of the state in reducing
disruption is outweighed by the drastic abridgment of the constitutionally guaranteed
rights of the media and the electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and publicized — can be vital tools for the
holding of honest, orderly, peaceful and credible elections; and for the elimination of
election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and
the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access
to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who
have been assisted. Clearly, what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of
whom they have voted for.

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

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

G.R. No. 147571       May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a newspaper of general
circulation, which features news- worthy items of information including election
surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published
seven (7) days be- fore an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the

voters as regards a candidate's popularity, qualifications, platforms or a matter of
public discussion in relation to the election, including voters preference for
candidates or publicly discussed issues during the campaign period (hereafter
referred to as "Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC
enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published
seven (7) days be- fore an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period
of the elections both at the national and local levels and release to the media the results
of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results
up to the last day of the elections on May 14,2001.

Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without causing confusion
among the voters and that there is neither empirical nor historical evidence to support
the conclusion that there is an immediate and inevitable danger to tile voting process
posed by election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied
access to the results of election surveys, which are relatively objective. 1âwphi1.nêt

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006
as necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,1 a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour,
was upheld by this Court. In contrast, according to respondent, it states that the
prohibition in §5.4 of RA. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press
prohibiting the publication of election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a national election seven
(7) days before a local election. Because of tile preferred status of tile constitutional
rights of speech, expression, and he press, such a measure is vitiated by a weighty
presumption of invalidity.2 Indeed, any system of prior restraints of expression comes to
this Court bearing a heavy Presumption against its constitutional validity. ...The
Government thus carries a heavy burden of showing justification for in enforcement of
such restraint. "'3 There, thus a reversal of the normal presumption of validity that
inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for
the operation of media of communication, no presumption of invalidity attaches to a
measure like §5.4. For as we have pointed out in sustaining tile ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to
ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities "public information
campaigns and forums among candidates." 4 This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be
that no presumption of invalidity arises in respect of exercises of supervisory or
 regulatory authority on the part of the Comelec for the Purpose of securing equal
opportunity among candidates for political office, although such supervision or
regulation may result in some limitation of the rights of free speech and free
press.5

MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and

present danger for determining the validity of §5.4. Indeed, as has been pointed out
in Osmeña v. COMELEC,6 this test was originally formulated for the criminal law and
only later appropriated for free speech cases. Hence, while it may be useful for
determining the validity of laws dealing with inciting to sedition or incendiary speech, it
may not be adequate for such regulations as the one in question. For such a test is
concerned with questions of the gravity and imminence of the danger as basis for
curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by

"weighing and balancing the circumstances to determine whether public interest [in free,
orderly, honest, peaceful and credible elections] is served by the regulation of the free
enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e.,
to prevent last-minute pressure on voters, the creation of bandwagon effect to favor
candidates, misinformation, the junking" of weak and "losing" candidates by their
parties, and the form of election cheating called "dagdag-bawas" and invoking the
State's power to supervise media of information during the election period (pages 11-
16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It
may be seen that its limiting impact on the rights of free speech and of the press
is not unduly repressive or unreasonable. In Indeed, it is a mere restriction, not
an absolute prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are presumably
contemplating whom they should elect and when they are most susceptible to
such unwarranted persuasion. These surveys may be published thereafter.
(Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should
outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C,
§4. As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time,
and space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates. " Hence the validity of the ban on
media advertising. It is noteworthy that R.A. No. 9006, § 14 has lifted the ban and now
allows candidates to advertise their candidacies in print and broadcast media. Indeed,
to sustain the ban on the publication of survey results would sanction the censorship of
all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the
electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves
freedom of speech, expression, and the press with little protection. For anyone who can
bring a plausible justification forward can easily show a rational connection between the
statute and a legitimate governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales v. COMELEC,7 from which the dissent
in this case takes its cue, was a strong one resulting in his conclusion that , §50-B of
R.A. No. 4880, which limited the period of election campaign and partisan political
activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other
countries - 78, according to the Solicitor General, while the dissent cites 28 - which
similarly impose restrictions on the publication of election surveys. At best this survey is
inconclusive. It is note worthy that in the United States no restriction on the publication
of election survey results exists. It cannot be argued that this is because the United
States is a mature democracy. Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not restrict
the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The
United States Supreme Court, through Chief Justice Warren, held in United States
v. O 'Brien:

[A] Government regulation is sufficiently justified [1] if it is within the constitutional

power of the Government; [2] if it furthers an important or substantial
governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incidental restriction on alleged First
Amendment freedoms [of speech, expression and press] is no greater than is
essential to the furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content
neutral regulations and is said to have "become canonical in the review of such
laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two
cases.10

Under this test, even if a law furthers an important or substantial governmental interest,
it should be invalidated if such governmental interest is "not unrelated to the Expression
of free expression." Moreover, even if the purpose is unrelated to the suppression of
free speech, the law should nevertheless be invalidated if the restriction on freedom of
expression is greater than is necessary to achieve the governmental purpose in
question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal
connection of expression to the asserted governmental interest makes such interest
"not related to the suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such publication might undermine
the integrity of the election, §5.4 actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion takers. In
effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by referring
personal opinion to statistical results. The constitutional guarantee of freedom of
expression means that "the government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content." 11 The inhibition of speech
should be upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire,  12 thus:

There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or 'fighting' words - those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances
are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality

Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near
v. Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases…. No one would
question but that a government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates transports or the number and
location of troops. On similar grounds, the primary requirements of decency may
be enforced against obscene publications. The security of the community life
may be protected against incitements to acts of violence and overthrow by force
of orderly government…

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4
cannot be justified on the ground that it is only for a limited period and is only incidental.
The prohibition may be for a limited time, but the curtailment of the right of expression is
direct, absolute, and substantial. It constitutes a total suppression of a category of
speech and is not made less so because it is only for a period of fifteen (15) days
immediately before a national election and seven (7) days immediately before a local
election. ..

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to
be valid in National Press Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the
ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional
provision,16 but it also provided an alternative so that, as this Court pointed out
in Osmeña, there was actually no ban but only a substitution of media advertisements
by the COMELEC space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the

suppression of speech and the resulting restriction of free expression is only incidental,
§5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the
restriction be not greater than is necessary to further the governmental interest. As
already stated, §5.4 aims at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the
form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of apprehension that such speech creates
the danger of such evils. Thus, under the Administrative Code of 1987, 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
suppression of freedom of expression.

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

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

A.M. No. 01-4-03-SC September 13, 2001

RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE

SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER PRESIDENT
JOSEPH E. ESTRADA

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA

BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO, and ATTY.
RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES,oppositors.

RESOLUTION

MENDOZA, J.:

This is a motion for reconsideration of the decision denying petitioners' request for
permission to televise and broadcast live the trial of former President Estrada before the
Sandiganbayan. The motion was filed by the Secretary of Justice, as one of the
petitioners, who argues that there is really no conflict between the right of the people to
public information and the freedom of the press, on the one hand, and, on the other, the
right of the accused to a fair trial; that if there is a clash between these rights, it must be
resolved in favor of the right of the people and the press because the people, as the
repository of sovereignty, are entitled to information; and that live media coverage is a
safeguard against attempts by any party to use the courts as instruments for the pursuit
of selfish interests.

On the other hand, former President Joseph E. Estrada reiterates his objection to the
live TV and radio coverage of his trial on the ground that its allowance will violate
the sub judice rule and that, based on his experience with the impeachment trial, live
media coverage will only pave the way for so-called "expert commentary" which can
trigger massive demonstrations aimed at pressuring the Sandiganbayan to render a
decision one way or the other. Mr. Estrada contends that the right of the people to
information may be served through other means less distracting, degrading, and
prejudicial than live TV and radio coverage.1âwphi1.nêt
The Court has considered the arguments of the parties on this important issue and,
after due deliberation, finds no reason to alter or in any way modify its decision
prohibiting live or real time broadcast by radio or television of the trial of the former
president. By a vote of nine (9) to six (6) of its members, 1 the Court denies the motion
for reconsideration of the Secretary of Justice.

In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8)
Justices,2 has resolved to order the audio-visual recording of the trial.

What follows is the opinion of the majority.lawphil.net

Considering the significance of the trial before the Sandiganbayan of former President
Estrada and the importance of preserving the records thereof, the Court believes that
there should be an audio-visual recording of the proceedings. The recordings will not be
for live or real time broadcast but for documentary purposes. Only later will they be
available for public showing, after the Sandiganbayan shall have promulgated its
decision in every case to which the recording pertains. The master film shall be
deposited in the National Museum and the Records Management and Archives Office
for historical preservation and exhibition pursuant to law. 4

For the purpose of recording the proceedings, cameras will be inconspicuously installed
in the courtroom and the movement of TV crews will be regulated, consistent with the
dignity and solemnity of the proceedings. The trial shall be recorded in its entirety,
except such portions thereof as the Sandiganbayan may decide should not be held
public pursuant to Rule 119, §21 of the Revised Rules of Criminal Procedure. No
comment shall be included in the documentary except annotations which may be
necessary to explain certain scenes which are depicted. The audio-visual recordings
shall be made under the supervision and control of the Sandiganbayan or its Division as
the case may be.

There are several reasons for such televised recording.1awphil.net First, the hearings
are of historic significance. They are an affirmation of our commitment to the rule that
"the King is under no man, but he is under God and the law." (Quod Rex non debet
esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of
vital concern to our people who have a fundamental right to know how their government
is conducted. This right can be enhanced by audio visual presentation. Third, audio-
visual presentation is essential for the education and civic training of the people.

Above all, there is the need to keep audio-visual records of the hearings for
documentary purposes. The recordings will be useful in preserving the essence of the
proceedings in a way that the cold print cannot quite do because it cannot capture the
sights and sounds of events. They will be primarily for the use of appellate courts in the
event a review of the proceedings, rulings, or decisions of the Sandiganbayan is sought
or becomes necessary. The accuracy of the transcripts of stenographic notes taken
during the trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for broadcast, concerns that
those taking part in the proceedings will be playing to the cameras and will thus be
distracted from the proper performance of their roles -- whether as counsel, witnesses,
court personnel, or judges -- will be allayed. The possibility that parallel trials before the
bar of justice and the bar of public opinion may jeopardize, or even prevent, the just
determination of the cases can be minimized. The possibility that judgment will be
rendered by the popular tribunal before the court of justice can render its own will be
avoided.

At the same time, concerns about the regularity and fairness of the trial -- which, it may
be assumed, is the concern of those opposed to, as much as of those in favor of,
televised trials - will be addressed since the tapes will not be released for public
showing until after the decision of the cases by the Sandiganbayan. By delaying the
release of the tapes, much of the problem posed by real time TV and radio broadcast
will be avoided.

Thus, many important purposes for preserving the record of the trial can be served by
audio-visual recordings without impairing the right of the accused to a fair trial.

Nor is the right of privacy of the accused a bar to the production of such documentary.
In Ayer Productions Pty. Ltd. V. Capulong,5 this Court set aside a lower court's
injunction restraining the filming of "Four Day Revolution," a documentary film depicting,
among other things, the role of then Minister of National Defense Juan Ponce Enrile in
the 1986 EDSA people power. This Court held: "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
matters of a public character."6

No one can prevent the making of a movie based on the trial. But, at least, if a
documentary record is made of the proceedings, any movie that may later be produced
can be checked for its accuracy against such documentary and any attempt to distort
the truth can thus be averted.

Indeed, a somewhat similar proposal for documentary recording of celebrated cases

or causes célèbres was made was made way back in 1971 by Paul Freund of the
Harvard Law School. As he explained:

In fairness let me refer to an American experience many of my lay friends found

similarly moving. An educational television network filmed a trial in Denver of a
Black Panther leader on charges of resisting arrest, and broadcast the document
in full, in four installments, several months after the case was concluded --
concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect for the
painstaking way in which the truth was searched for, for the ways whereby law
copes with uncertainties and ambiguities through presumptions and burden of
 proof, and the sense of gravity with which judge and jury carried out their
responsibilities.

I agree in general with the exclusion of television from the courtroom, for the
familiar good reasons. And yet the use of television at a trial for documentary
purposes, not for the broadcast of live news, and with the safeguards of
completeness and consent, is an educational experiment that I would be
prepared to welcome. Properly safeguarded and with suitable commentary, the
depiction of an actual trial is an agency of enlightenment that could have few
equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our educational

system, is now a desperate need.7

Professor Freund's observation is as valid today as when it was made thirty years ago.
It is perceptive for its recognition of the serious risks posed to the fair administration of
justice by live TV and radio broadcasts, especially when emotions are running high on
the issues stirred by a case, while at the same time acknowledging the necessity of
keeping audio-visual recordings of the proceedings of celebrated cases, for public
information and exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former President Estrada before

the Sandiganbayan is hereby ordered to be made, for the account of the
Sandiganbayan, under the following conditions: (a) the trial shall be recorded in its
entirety, excepting such portions thereof as the Sandiganbayan may determine should
not be held public under Rule 119, §21 of the Rules of Criminal Procedure; (b) cameras
shall be installed inconspicuously inside the courtroom and the movement of TV crews
shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the
audio-visual recordings shall be made for documentary purposes only and shall be
made without comment except such annotations of scenes depicted therein as may be
necessary to explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases against the former
President shall be prohibited under pain of contempt of court and other sanctions in
case of violations of the prohibition; (e) to ensure that the conditions are observed, the
audio-visual recording of the proceedings shall be made under the supervision and
control of the Sandiganbayan or its Division concerned and shall be made pursuant to
rules promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the National
Museum and the Records Management and Archives Office for preservation and
exhibition in accordance with law.

G.R. Nos. 170270 & 179411               April 2, 2009

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED

BROADCASTING SYSTEM, INC., Petitioners,
vs.
HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA
FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents.

DECISION

TINGA, J.:

Whenever the force of government or any of its political subdivisions bears upon to
close down a private broadcasting station, the issue of free speech infringement cannot
be minimized, no matter the legal justifications offered for the closure. In many respects,
the present petitions offer a textbook example of how the constitutional guarantee of
freedom of speech, expression and of the press may be unlawfully compromised.
Tragically, the lower courts involved in this case failed to recognize or assert the
fundamental dimensions, and it is our duty to reverse, and to affirm the Constitution and
the most sacred rights it guarantees.

Before us are two petitions for review involving the same parties, the cases having been
consolidated by virtue of the Resolution of this Court dated 16 June 2008. 1 Both
petitions emanated from a petition for mandamus 2 filed with the Regional Trial Court
(RTC) of Cauayan City docketed as Special Civil Action No. Br. 20-171, the petition
having been dismissed in a Decision dated 14 September 2004 by the Cauayan City
RTC, Branch 20.3 Consequently, petitioners filed with the Court of Appeals a petition for
certiorari under Rule 65 and an appeal to the RTC decision. The appellate court ruled
against petitioners in both instances. The petition in G.R. No. 170270 assails the 27
October 2005 decision of the Court of Appeals in CA-G.R. SP No. 87815, 4 while the
petition in G.R. 179411 assails the 30 May 2007 decision of the Court of Appeals in
C.A.-G.R. SP No. 88283.5

I.

Bombo Radyo Philippines ("Bombo Radyo") operates several radio stations under the
AM and FM band throughout the Philippines. These stations are operated by
corporations organized and incorporated by Bombo Radyo, particularly petitioners
Newsounds Broadcasting Network, Inc. ("Newsounds") and Consolidated Broadcasting
System, Inc. ("CBS"). Among the stations run by Newsounds is Bombo Radyo DZNC
Cauayan (DZNC), an AM radio broadcast station operating out of Cauayan City,
Isabela. CBS, in turn, runs Star FM DWIT Cauayan ("Star FM"), also operating out of
Cauayan City, airing on the FM band. The service areas of DZNC and Star FM extend
from the province of Isabela to throughout Region II and the Cordillera region. 6

In 1996, Newsounds commenced relocation of its broadcasting stations, management

office and transmitters on property located in Minante 2, Cauayan City, Isabela. The
property is owned by CBS Development Corporation (CDC), an affiliate corporation
under the Bombo Radyo network which holds title over the properties used by Bombo
Radyo stations throughout the country. 7 On 28 June 1996, CDC was issued by the then
municipal government of Cauayan a building permit authorizing the construction of a
commercial establishment on the property. 8 On 5 July 1996, the Housing and Land Use
Regulatory Board (HLURB) issued a Zoning Decision certifying the property as
commercial.9 That same day, the Office of the Municipal Planning and Development
Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be
constructed by CDC conformed to local zoning regulations, noting as well that the
location "is classified as a Commercial area." 10 Similar certifications would be issued by
OMPDC from 1997 to 2001.11

A building was consequently erected on the property, and therefrom, DZNC and Star
FM operated as radio stations. Both stations successfully secured all necessary
operating documents, including mayor’s permits from 1997 to 2001. 12 During that
period, CDC paid real property taxes on the property based on the classification of the
land as commercial.13

All that changed beginning in 2002. On 15 January of that year, petitioners applied for
the renewal of the mayor’s permit. The following day, the City Assessor’s Office in
Cauayan City noted on CDC’s Declaration of Real Property filed for 2002 confirmed that
based on the existing file, CDC’s property was classified as "commercial." 14 On 28
January, representatives of petitioners formally requested then City Zoning
Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning clearance for the
property.15 Maximo, however, required petitioners to submit "either an approved land
conversion papers from the Department of Agrarian Reform (DAR) showing that the
property was converted from prime agricultural land to commercial land, or an approved
resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the
re-classification of the property from agricultural to commercial land." 16 Petitioners had
never been required to submit such papers before, and from 1996 to 2001, the OMPDC
had consistently certified that the property had been classified as commercial.

Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to
secure a mayor’s permit. Petitioners filed a petition for mandamus 17 with the Regional
Trial Court (RTC) of Cauayan City to compel the issuance of the 2002 mayor’s permit.
The case was raffled to Branch 19 of the Cauayan City RTC. When the RTC of
Cauayan denied petitioners’ accompanying application for injunctive relief, they filed a
special civil action for certiorari with the Court of Appeals, 18 but this would be dismissed
by the appellate court due to the availability of other speedy remedies with the trial
court. In February of 2003, the RTC dismissed the mandamus action for being moot and
academic.19

In the meantime, petitioners sought to obtain from the DAR Region II Office a formal
recognition of the conversion of the CDC property from agricultural to commercial. The
matter was docketed as Adm. Case No. A-0200A-07B-002. Then DAR Region II
Director Abrino L. Aydinan (Director Aydinan) granted the application and issued an
Order that stated that "there remains no doubt on the part of this Office of the non-
agricultural classification of subject land before the effectivity of Republic Act No. 6657
otherwise known as the Comprehensive Agrarian Reform Law of
1988."20 Consequently, the DAR Region II Office ordered the formal exclusion of the
property from the Comprehensive Agrarian Reform Program, and the waiver of any
requirement for formal clearance of the conversion of the subject land from agricultural
to non-agricultural use."21

On 16 January 2003, petitioners filed their applications for renewal of mayor’s permit for
the year 2003, attaching therein the DAR Order. Their application was approved.
However, on 4 March 2003, respondent Felicisimo Meer, Acting City Administrator of
Cauayan City, wrote to petitioners claiming that the DAR Order was spurious or void, as
the Regional Center for Land Use Policy Planning and Implementation (RCLUPPI)
supposedly reported that it did not have any record of the DAR Order. A series of
correspondences followed wherein petitioners defended the authenticity of the DAR
Order and the commercial character of the property, while respondent Meer demanded
independent proof showing the authenticity of the Aydinan Order. It does not appear
though that any action was taken against petitioners by respondents in 2003, and
petitioners that year paid realty taxes on the property based on the classification that
said property is commercial.22

The controversy continued into 2004. In January of that year, petitioners filed their
respective applications for their 2004 mayor’s permit, again with the DAR Order
attached to the same. A zonal clearance was issued in favor of petitioners. Yet in a
letter dated 13 January 2004, respondent Meer claimed that no record existed of DAR
Adm. Case No. A-0200A-07B-002 with the Office of the Regional Director of the DAR or
with the RCLUPPI.23 As a result, petitioners were informed that there was no basis for
the issuance in their favor of the requisite zoning clearance needed for the issuance of
the mayor’s permit.24

Another series of correspondences ensued between Meer and the station manager of
DZNC, Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR
Order and the commercial character of the property, while Meer twice extended the
period for application of the mayor’s permit, while reminding them of the need to submit
the certifications from the DAR or the Sangguniang Panlalawigan that the property had
been duly converted for commercial use.

The deadline for application for the mayor’s permit lapsed on 15 February 2004, despite
petitioners’ plea for another extension. On 17 February 2004, respondents Meer and
Racma Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property
and closed the radio stations. Petitioners proceeded to file a petition with the
Commission on Elections (COMELEC) seeking enforcement of the Omnibus Election
Code, which prohibited the closure of radio stations during the then-pendency of the
election period. On 23 March 2004, the COMELEC issued an order directing the parties
to maintain the status prevailing before 17 February 2004, thus allowing the operation of
the radio stations, and petitioners proceeded to operate the stations the following day.
Within hours, respondent Mayor Ceasar Dy issued a Closure Order dated 24 March
2004, stating therein that since petitioners did not have the requisite permits before 17
February 2004, the status quo meant that the stations were not in fact allowed to
operate.25 Through the intervention of the COMELEC, petitioners were able to resume
operation of the stations on 30 March 2004. On 9 May 2004, or two days before the
general elections of that year, the COMELEC denied the petition filed by petitioners and
set aside the status quo order.26 However, this Resolution was reconsidered just 9 days
later, or on 16 May 2004, and the COMELEC directed the maintenance of the status
quo until 9 June 2004, the date of the end of the election period.

Petitioners were thus able to continue operations until 10 June 2004, the day when
respondents yet again closed the radio stations. This closure proved to be more
permanent.

By this time, the instant legal battle over the sought-after mayor’s permits had already
been well under way. On 15 April 2004, petitioners filed a petition for mandamus,
docketed as SCA No. 20-171, with the RTC of Cauayan City, Branch 20. The petition
was accompanied by an application for the issuance of temporary restraining order and
writ of preliminary prohibitory injunction, both provisional reliefs being denied by the
RTC through an Order dated 20 April 2004. Respondents duly filed an Answer with
Counterclaims on 3 May 2004. Due to the aforementioned closure of the radio stations
on 10 June 2004, petitioners filed with the RTC a Motion for the Issuance of a Writ of
Preliminary Mandatory Injunction dated 15 June 2004, praying that said writ be issued
to allow petitioners to resume operations of the radio stations. No hearing would be
conducted on the motion, nor would it be formally ruled on by the RTC.

On 14 September 2004, the RTC rendered a Decision denying the petition for
mandamus.27 The RTC upheld all the arguments of the respondents, including their right
to deny the sought after mayor’s permit unless they were duly satisfied that the subject
property has been classified as commercial in nature. The Decision made no reference
to the application for a writ of preliminary mandatory injunction. Petitioners filed a motion
for reconsideration,28 citing the trial court’s failure to hear and act on the motion for
preliminary mandatory injunction as a violation of the right to due process, and disputing
the RTC’s conclusions with respect to their right to secure the mayor’s permit. This
motion was denied in an Order dated 1 December 2004.

Petitioners initiated two separate actions with the Court of Appeals following the rulings
of the RTC. On 13 December 2004, they filed a Petition for Certiorari under Rule 65,
docketed as CA G.R. No. 87815, raffled to the Fourteenth Division. 29 This petition
imputed grave abuse of discretion on the part of the RTC for denying their application
for preliminary mandatory injunction. On the same day, petitioners also filed a Notice of
Appeal with the RTC, this time in connection with the denial of their petition for
mandamus. This appeal was docketed as CA G.R. SP No. 88283 and raffled to the
Eleventh Division.

Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the
Court of Appeals in CA G.R. No. 87815 dismissed the Petition for Certiorari, ruling that
the RTC did not commit any grave abuse of discretion in impliedly denying the
application for preliminary mandatory injunction. On 30 May 2007, the Court of Appeals
in CA-G.R. SP No. 88283 denied the appeal by certiorari, affirming the right of the
respondents to deny petitioners their mayor’s permits. On both occasions, petitioners
filed with this Court respective petitions for review under Rule 45 – the instant petitions,
now docketed as G.R. Nos. 170270 and 179411.

On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary
injunction, "enjoining respondents from implementing the closure order dated March 24,
2005, or otherwise interfering with the operations of Bombo Radyo DZNC Cauayan
(NBN) and STAR FM DWIT Cauayan (CBS) in Cauayan City until final orders from this
Court."30 On 21 January 2008, the Court resolved to consolidate G.R. No. 170270 with
G.R. No. 179411, which had been initially dismissed outright but was reinstated on even
date.31

Certiorari lies in both instances.

II.

The fundamental constitutional principle that informs our analysis of both petitions is the
freedom of speech, of expression or the press.32 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

Petitioners have taken great pains to depict their struggle as a textbook case of denial
of the right to free speech and of the press. In their tale, there is undeniable political
color. They admit that in 2001, Bombo Radyo "was aggressive in exposing the
widespread election irregularities in Isabela that appear to have favored respondent Dy
and other members of the Dy political dynasty." 34 Respondent Ceasar Dy is the brother
of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-
election bid in 2004 by Grace Padaca, a former assistant station manager at petitioners’
own DZNC Bombo Radyo.35 A rival AM radio station in Cauayan City, DWDY, is owned
and operated by the Dy family.36 Petitioners likewise direct our attention to a 20
February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as
intending "to file disenfranchisement proceedings against DZNC-AM." 37

The partisan component of this dispute will no doubt sway many observers towards one
opinion or the other, but not us. The comfort offered by the constitutional shelter of free
expression is neutral as to personality, affinity, ideology and popularity. The judges
tasked to enforce constitutional order are expected to rule accordingly from the comfort
of that neutral shelter.

Still, it cannot be denied that our Constitution has a systemic bias towards free speech.
The absolutist tenor of Section 4, Article III testifies to that fact. The individual
discomforts to particular people or enterprises engendered by the exercise of the right,
for which at times remedies may be due, do not diminish the indispensable nature of
free expression to the democratic way of life.

The following undisputed facts bring the issue of free expression to fore. Petitioners are
authorized by law to operate radio stations in Cauayan City, and had been doing so for
some years undisturbed by local authorities. Beginning in 2002, respondents in their
official capacities have taken actions, whatever may be the motive, that have impeded
the ability of petitioners to freely broadcast, if not broadcast at all. These actions have
ranged from withholding permits to operate to the physical closure of those stations
under color of legal authority. While once petitioners were able to broadcast freely, the
weight of government has since bore down upon them to silence their voices on the
airwaves. An elementary school child with a basic understanding of civics lessons will
recognize that free speech animates these cases.

Without taking into account any extenuating circumstances that may favor the
respondents, we can identify the bare acts of closing the radio stations or preventing
their operations as an act of prior restraint against speech, expression or of the press.
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 38 While any system of
prior restraint comes to court bearing a heavy burden against its constitutionality, 39 not
all prior restraints on speech are invalid. 40

Nonetheless, there are added legal complexities to these cases which may not be
necessarily accessible to the layperson. The actions taken by respondents are colored
with legal authority, under the powers of local governments vested in the Local
Government Code (LGC), or more generally, the police powers of the State. We do not
doubt that Local Government Units (LGU) are capacitated to enact ordinances requiring
the obtention of licenses or permits by businesses, a term defined elsewhere in the LGC
as "trade or commercial activity regularly engaged in as a means of livelihood or with a
view to profit."

And there is the fact that the mode of expression restrained in these cases – broadcast
– is not one which petitioners are physically able to accomplish without interacting with
the regulatory arm of the government. Expression in media such as print or the Internet
is not burdened by such requirements as congressional franchises or administrative
licenses which bear upon broadcast media. Broadcast is hampered by its utilization of
the finite resources of the electromagnetic spectrum, which long ago necessitated
government intervention and administration to allow for the orderly allocation of
bandwidth, with broadcasters agreeing in turn to be subjected to regulation. There is no
issue herein that calls into question the authority under law of petitioners to engage in
broadcasting activity, yet these circumstances are well worth pointing out if only to
provide the correct perspective that broadcast media enjoys a somewhat lesser degree
of constitutional protection than print media or the Internet.
It emerges then that there exists tension between petitioners’ right to free expression,
and respondents’ authority by law to regulate local enterprises. What are the rules of
adjudication that govern the judicial resolution of this controversy?

B.

That the acts imputed against respondents constitute a prior restraint on the freedom of
expression of respondents who happen to be members of the press is clear enough.
There is a long-standing tradition of special judicial solicitude for free speech, meaning
that governmental action directed at expression must satisfy a greater burden of
justification than governmental action directed at most other forms of behavior. 41 We
had said in SWS v. COMELEC: "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. 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.’ There is thus a reversal of the normal presumption of validity that
inheres in every legislation."42

At the same time, jurisprudence distinguishes between 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; and
a content-based restraint or censorship, i.e., the restriction is based on the subject
matter of the utterance or speech.43 Content-based laws are generally treated as more
suspect than content-neutral laws because of judicial concern with discrimination in the
regulation of expression.44 Content-neutral regulations of speech or of conduct that may
amount to speech, are subject to lesser but still heightened scrutiny. 45

Ostensibly, the act of an LGU requiring a business of proof that the property from which
it operates has been zoned for commercial use can be argued, when applied to a radio
station, as content-neutral since such a regulation would presumably apply to any other
radio station or business enterprise within the LGU.

However, the circumstances of this case dictate that we view the action of the
respondents as a content-based restraint. In their petition for mandamus filed with the
RTC, petitioners make the following relevant allegations:

6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in

discussing public issues that include, among others, the conduct of public
officials that are detrimental to the constituents of Isabela, including Cauayan
City. In view of its wide coverage, DZNC has been a primary medium for the
exercise of the people of Isabela of their constitutional right to free speech.
Corollarily, DZNC has always been at the forefront of the struggle to maintain
and uphold freedom of the press, and the people’s corollary right to freedom of
speech, expression and petition the government for redress of grievances.
 6.2. Newsound’s only rival AM station in Cauayan and the rest of Isabela,
DWDY, is owned and operated by the family of respondent Dy. 46

xxxx

35. Respondents closure of petitioners’ radio stations is clearly tainted with ill motives.

35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in
exposing the widespread election irregularities in Isabela that appear to have favored
respondent Dy and other members of the Dy political dynasty. It is just too coincidental
that it was only after the 2001 elections (i.e., 2002) that the Mayor’s Office started
questioning petitioners’ applications for renewal of their mayor’s permits.

35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004,
respondent Dy was quoted as saying that he will "disenfranchise the radio station."
Such statement manifests and confirms that respondents’ denial of petitioners’ renewal
applications on the ground that the Property is commercial is merely a pretext and that
their real agenda is to remove petitioners from Cauayan City and suppress the latter’s
voice. This is a blatant violation of the petitioners’ constitutional right to press freedom.

A copy of the newspaper article is attached hereto as Annex "JJ."

35.3. The timing of respondents’ closure of petitioners’ radio stations is also very telling.
The closure comes at a most critical time when the people are set to exercise their right
of suffrage. Such timing emphasizes the ill motives of respondents. 47

In their Answer with Comment48 to the petition for mandamus, respondents admitted
that petitioners had made such exposes during the 2001 elections, though they denied
the nature and truthfulness of such reports. 49 They conceded that the Philippine Daily
Inquirer story reported that "Dy said he planned to file disenfranchisement proceedings
against [DZNC]-AM."50 While respondents assert that there are other AM radio stations
in Isabela, they do not specifically refute that station DWDY was owned by the Dy
family, or that DZNC and DWDY are the two only stations that operate out of Cauayan. 51

Prior to 2002, petitioners had not been frustrated in securing the various local
government requirements for the operation of their stations. It was only in the beginning
of 2002, after the election of respondent Ceasar Dy as mayor of Cauayan, that the local
government started to impose these new requirements substantiating the conversion of
CDC’s property for commercial use. Petitioners admit that during the 2001 elections,
Bombo Radyo "was aggressive in exposing the widespread election irregularities in
Isabela that appear to have favored Respondent Dy and other members of the Dy
political dynasty."52 Respondents’ efforts to close petitioners’ radio station clearly
intensified immediately before the May 2004 elections, where a former employee of
DZNC Bombo Radyo, Grace Padaca, was mounting a credible and ultimately
successful challenge against the incumbent Isabela governor, who happened to be the
brother of respondent Dy. It also bears notice that the requirements required of
petitioners by the Cauayan City government are frankly beyond the pale and not
conventionally adopted by local governments throughout the Philippines.

All those circumstances lead us to believe that the steps employed by respondents to
ultimately shut down petitioner’s radio station were ultimately content-based. The United
States Supreme Court generally treats restriction of the expression of a particular point
of view as the paradigm violation of the First Amendment. 53 The facts confronting us
now could have easily been drawn up by a constitutional law professor eager to provide
a plain example on how free speech may be violated.

The Court is of the position that the actions of the respondents warrant heightened or
strict scrutiny from the Court, the test which we have deemed appropriate in assessing
content-based restrictions on free speech, as well as for laws dealing with freedom of
the mind or restricting the political process, of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as expansion from its
earlier applications to equal protection.54 The immediate implication of the application of
the "strict scrutiny" test is that the burden falls upon respondents as agents of
government to prove that their actions do not infringe upon petitioners’ constitutional
rights. As content regulation cannot be done in the absence of any compelling
reason,55 the burden lies with the government to establish such compelling reason to
infringe the right to free expression.

III.

We first turn to whether the implicit denial of the application for preliminary mandatory
injunction by the RTC was in fact attended with grave abuse of discretion. This is the
main issue raised in G.R. No. 170270.

To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance
of a writ of preliminary injunction, claiming that "[t]here is insufficiency of allegation…
[t]here is no certainty that after the election period, the respondents will interfere with
the operation of the radio stations x x x which are now operating by virtue of the order of
the COMELEC."56 Petitioners filed a motion for reconsideration, which the RTC denied
on 13 May 2004. The refusal of the RTC to grant provisional relief gave way to the
closure of petitioners’ radio stations on 10 June 2004, leading for them to file a motion
for the issuance of a writ of preliminary mandatory injunction on 25 June 2004. This
motion had not yet been acted upon when on 14 September 2004, the RTC
promulgated its decision denying the petition for mandamus.

Among the arguments raised by petitioners in their motion for reconsideration before the
RTC was against the implied denial of their motion for the issuance of a writ of
preliminary mandatory injunction, claiming in particular that such implicit denial violated
petitioners’ right to due process of law since no hearing was conducted thereupon.
However, when the RTC denied the motion for reconsideration in its 1 December 2004
Order, it noted that its implied denial of the motion for a writ of preliminary mandatory
injunction was not a ground for reconsideration of its decision.
Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly
denied their motion for the issuance of a writ of preliminary mandatory injunction without
any hearing. The Court of Appeals pointed out that under Section 5 of Rule 58 of the
1997 Rules of Civil Procedure, it is the granting of a writ of preliminary injunction that
mandatorily requires a hearing. The interpretation of the appellate court is supported by
the language of the rule itself:

Sec. 5. Preliminary injunction not granted without notice; exception.― No preliminary

injunction shall be granted without hearing and prior notice to the party or person sought
to be enjoined. If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant before the matter
can be heard on notice, the court to which the application for preliminary injunction was
made, may issue ex parte a temporary restraining order to be effective only for a period
of twenty (20) days from service on the party or person sought to be enjoined, except as
herein provided. x x x

Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or
person sought to be enjoined if preliminary injunction should be granted. It imposes no
similar requirement if such provisional relief were to be denied. We in fact agree with the
Court of Appeals that "if on the face of the pleadings, the applicant for preliminary
injunction is not entitled thereto, courts may outrightly deny the motion without
conducting a hearing for the purpose." 57 The Court is disinclined to impose a mandatory
hearing requirement on applications for injunction even if on its face, injunctive relief is
palpably without merit or impossible to grant. Otherwise, our trial courts will be forced to
hear out the sort of litigation-happy attention-deprived miscreants who abuse the judicial
processes by filing complaints against real or imaginary persons based on trivial or
inexistent slights.

We do not wish though to dwell on this point, as there is an even more fundamental
point to consider. Even as we decline to agree to a general that the denial of an
application for injunction requires a prior hearing, we believe in this case that petitioners
deserved not only a hearing on their motion, but the very writ itself.

As earlier stated, the burden of presuming valid the actions of respondents sought,
fraught as they were with alleged violations on petitioners’ constitutional right to
expression, fell on respondents themselves. This was true from the very moment the
petition for mandamus was filed. It was evident from the petition that the threat against
petitioners was not wildly imagined, or speculative in any way. Attached to the petition
itself was the Closure Order dated 13 February 2004 issued by respondents against
petitioners.58 There was no better evidence to substantiate the claim that petitioners
faced the live threat of their closure. Moreover, respondents in their Answer admitted to
issuing the Closure Order.59

At the moment the petition was filed, there was no basis for the RTC to assume that
there was no actual threat hovering over petitioners for the closure of their radio
stations. The trial court should have been cognizant of the constitutional implications of
the case, and appreciated that the burden now fell on respondents to defend the
constitutionality of their actions. From that mindset, the trial court could not have
properly denied provisional relief without any hearing since absent any extenuating
defense offered by the respondents, their actions remained presumptively invalid.

Our conclusions hold true not only with respect to the implied denial of the motion for
preliminary injunction, but also with the initial denial without hearing on 20 April 2004 of
the prayer for a writ of preliminary injunction and temporary restraining order.
Admittedly, such initial denial is not the object of these petitions, yet we can observe
that such action of the RTC was attended with grave abuse of discretion, the trial court
betraying ignorance of the constitutional implications of the petition. With respect to the
subsequent "implied denial" of the writ of preliminary mandatory injunction, the grave
abuse of discretion on the part of the trial court is even more glaring. At that point,
petitioners’ radio stations were not merely under threat of closure, they were already
actually closed. Petitioners’ constitutional rights were not merely under threat of
infringement, they were already definitely infringed.

The application of the strict scrutiny analysis to petitioners’ claims for provisional relief
warrants the inevitable conclusion that the trial court cannot deny provisional relief to
the party alleging a prima facie case alleging government infringement on the right to
free expression without hearing from the infringer the cause why its actions should be
sustained provisionally. Such acts of infringement are presumptively unconstitutional,
thus the trial court cannot deny provisional relief outright since to do so would lead to
the sustention of a presumptively unconstitutional act. It would be necessary for the
infringer to appear in court and somehow rebut against the presumption of
unconstitutionality for the trial court to deny the injunctive relief sought for in cases
where there is a prima facie case establishing the infringement of the right to free
expression.

Those above-stated guidelines, which pertain most particularly to the ex parte denial of
provisional relief in free expression cases, stand independently of the established
requisites for a party to be entitled to such provisional reliefs. With respect to writs of
preliminary injunction, the requisite grounds are spelled out in Section 3 of Rule 58 of
the Rules of Court.

It may be pointed out that the application for preliminary mandatory injunction after
petitioners’ radio stations had been closed was mooted by the RTC decision denying
the petition for mandamus. Ideally, the RTC should have acted on the motion asking for
the issuance of the writ before rendering its decision. Given the circumstances,
petitioners were entitled to immediate relief after they filed their motion on 25 June
2004, some two and a half months before the RTC decision was promulgated on 14
September 2004. It is not immediately clear why the motion, which had been set for
hearing on 2 July 2004, had not been heard by the RTC, so we have no basis for
imputing bad faith on the part of the trial court in purposely delaying the hearing to
render it moot with the forthcoming rendition of the decision. Nonetheless, given the
gravity of the constitutional question involved, and the fact that the radio stations had
already been actually closed, a prudent judge would have strived to hear the motion and
act on it accordingly independent of the ultimate decision.

Since the prayer for the issuance of a writ of mandatory injunction in this case was
impliedly denied through the decision denying the main action, we have no choice but to
presume that the prayer for injunction was denied on the same bases as the denial of
the petition for mandamus itself. The time has come for us to review such denial, the
main issue raised in G.R. No. 179411.

IV.

The perspective from which the parties present the matter for resolution in G.R. No.
179411 is whether the property of CDC had been duly converted or classified for
commercial use, with petitioners arguing that it was while respondents claiming that the
property remains agricultural in character. This perspective, to our mind, is highly
myopic and implicitly assumes that the requirements imposed on petitioners by the
Cauayan City government are in fact legitimate.

The LGC authorizes local legislative bodies to enact ordinances authorizing the
issuance of permits or licenses upon such conditions and for such purposes intended to
promote the general welfare of the inhabitants of the LGU. 60 A municipal or city mayor is
likewise authorized under the LGC to "issue licenses and permits and suspend or
revoke the same for any violation of the conditions upon which said licenses or permits
had been issued, pursuant to law or ordinance." 61 Generally, LGUs have exercised its
authority to require permits or licenses from business enterprises operating within its
territorial jurisdiction.

A municipal license is essentially a governmental restriction upon private rights and is

valid only if based upon an exercise by the municipality of its police or taxing
powers.62 The LGC subjects the power of sanggunians to enact ordinances requiring
licenses or permits within the parameters of Book II of the Code, concerning "Local
Taxation and Fiscal Matters." It also necessarily follows that the exercise of this power
should also be consistent with the Constitution as well as the other laws of the land.

Nothing in national law exempts media entities that also operate as businesses such as
newspapers and broadcast stations such as petitioners from being required to obtain
permits or licenses from local governments in the same manner as other businesses
are expected to do so. While this may lead to some concern that requiring media
entities to secure licenses or permits from local government units infringes on the
constitutional right to a free press, we see no concern so long as such requirement has
been duly ordained through local legislation and content-neutral in character, i.e.,
applicable to all other similarly situated businesses.

Indeed, there are safeguards within the LGC against the arbitrary or unwarranted
exercise of the authority to issue licenses and permits. As earlier noted, the power
of sanggunians to enact ordinances authorizing the issuance of permits or licenses is
subject to the provisions of Book Two of the LGC. The power of the mayor to issue
license and permits and suspend or revoke the same must be exercised pursuant to law
or ordinance.63

In the case of Cauayan City, the authority to require a mayor’s permit was enacted
through Ordinance No. 92-004, enacted in 1993 when Cauayan was still a
municipality.1avvphi1.net We quote therefrom:

Sec. 3A.01. Imposition of Fee. — There shall be imposed and collected an annual fee at
the rates provided hereunder for the issuance of Mayor’s Permit to every person that
shall conduct business, trade or activity within the Municipality of Cauayan.

The permit fee is payable for every separate or distinct establishment or place where
the business trade or activity is conducted. One line of business or activity does not
become exempt by being conducted with some other business or activity for which the
permit fee has been paid.

xxxx

Sec. 3A.03. Application for Mayor’s Permit False Statements.― A written application for
a permit to operate a business shall be filed with the Office of the Mayor in three copies.
The application form shall set forth the name and address of the applicant, the
description or style of business, the place where the business shall be conducted and
such other pertinent information or data as may be required.

Upon submission of the application, it shall be the duty of the proper authorities to verify
if the other Municipal requirements regarding the operation of the business or activity
are complied with. The permit to operate shall be issued only upon such compliance
and after the payment of the corresponding taxes and fees as required by this revenue
code and other municipal tax ordinances.

Any false statement deliberately made by the applicant shall constitute sufficient ground
for denying or revoking the permit issued by the Mayor, and the applicant or licensee
may further be prosecuted in accordance with the penalties provided in this article.

A Mayor’s Permit shall be refused to any person:

(1) Whose business establishment or undertaking does not conform with zoning
regulations and safety, health and other requirements of the Municipality; (2) that has an
unsettled tax obligations, debt or other liability to the Municipal Government; and (3) that
is disqualified under any provision of law or ordinance to establish, or operate the
business for which a permit is being applied.64

Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it
operates as a content-neutral regulation that does not impose any special impediment
to the exercise of the constitutional right to free expression. Still, it can be seen how
under the veil of Ordinance No. 92-004 or any other similarly oriented ordinance, a local
government unit such as Cauayan City may attempt to infringe on such constitutional
rights.

A local government can quite easily cite any of its regulatory ordinances to impose
retaliatory measures against persons who run afoul it, such as a business owned by an
opponent of the government, or a

crusading newspaper or radio station. While the ill-motives of a local government do not
exempt the injured regulatory subject from complying with the municipal laws, such laws
themselves do not insulate those ill-motives if they are attended with infringements of
constitutional rights, such as due process, equal protection and the right to free
expression. Our system of laws especially frown upon violations of the guarantee to free
speech, expression and a free press, vital as these are to our democratic regime.

Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a
mayor’s permit submit "either an approved land conversion papers from the DAR
showing that its property was converted from prime agricultural land to commercial land,
or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod
authorizing the re-classification of the property from agricultural to commercial
land."65 The aforecited provision which details the procedure for applying for a mayor’s
permit does not require any accompanying documents to the application, much less
those sought from petitioners by respondents. Moreover, Ordinance No. 92-004 does
not impose on the applicant any burden to establish that the property from where the
business was to operate had been duly classified as commercial in nature.

According to respondents, it was only in 2002 that "the more diligent Respondent
Bagnos Maximo" discovered "the mistake committed by his predecessor in the issuance
of the Petitioners’ Zoning Certifications from 1996 to 2001." 66 Assuming that were true, it
would perhaps have given cause for the local government in requiring the business so
affected to submit additional requirements not required of other applicants related to the
classification of its property. Still, there are multitude of circumstances that belie the
claim that the previous certifications issued by the OMPDC as to the commercial
character of CDC’s property was incorrect.

On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as
Commercial.67 The HLURB is vested with authority to "review, evaluate and approve or
disapprove…the zoning component of …subdivisions, condominiums or estate
development projects including industrial estates, of both the public and private
sectors."68 In exercising such power, the HLURB is required to use Development Plans
and Zoning Ordinances of local governments herein. 69 There is no reason to doubt that
when the HLURB acknowledged in 1996 that the property in question was commercial,
it had consulted the development plans and zoning ordinances of Cauayan.

Assuming that respondents are correct that the property was belatedly revealed as non-
commercial, it could only mean that even the HLURB, and not just the local government
of Cauayan erred when in 1996 it classified the property as commercial. Or, that
between 1996 to 2002, the property somehow was reclassified from commercial to
agricultural. There is neither evidence nor suggestion from respondents that the latter
circumstance obtained.

Petitioners are also armed with six certifications issued by the OMPDC for the
consecutive years 1996 to 2001, all of which certify that the property is "classified as
commercial area…in conformity with the Land Use Plan of this municipality and does
not in any way violate the existing Zoning Ordinance of Cauayan, Isabela." 70 In addition,
from 1997 to 2004, petitioners paid real property taxes on the property based on the
classification of the property as commercial, without any objections raised by
respondents.71 These facts again tend to confirm that contrary to respondents’
assertions, the property has long been classified as commercial.

Petitioners persuasively argue that this consistent recognition by the local government
of Cauayan of the commercial character of the property constitutes estoppel against
respondents from denying that fact before the courts. The lower courts had ruled that
"the government of Cauayan City is not bound by estoppel," but petitioners point out our
holding in Republic v. Sandiganbayan72 where it was clarified that "this concept is
understood to refer to acts and mistakes of its officials especially those which are
irregular."73 Indeed, despite the general rule that the State cannot be put in estoppel by
the mistake or errors of its officials or agents, we have also recognized, thus:

Estoppels against the public are little favored. They should not be invoked except
in a rare and unusual circumstances, and may not be invoked where they would
operate to defeat the effective operation of a policy adopted to protect the public.
They must be applied with circumspection and should be applied only in those
special cases where the interests of justice clearly require it. Nevertheless, the
government must not be allowed to deal dishonorably or capriciously with its
citizens, and must not play an ignoble part or do a shabby thing; and subject to
limitations . . ., the doctrine of equitable estoppel may be invoked against public
authorities as well as against private individuals.[74]

Thus, when there is no convincing evidence to prove irregularity or negligence on the

part of the government official whose acts are being disowned other than the bare
assertion on the part of the State, we have declined to apply State immunity from
estoppel.75 Herein, there is absolutely no evidence other than the bare assertions of the
respondents that the Cauayan City government had previously erred when it certified
that the property had been zoned for commercial use. One would assume that if
respondents were correct, they would have adduced the factual or legal basis for their
contention, such as the local government’s land use plan or zoning ordinance that
would indicate that the property was not commercial. Respondents did not do so, and
the absence of any evidence other than bare assertions that the 1996 to 2001
certifications were incorrect lead to the ineluctable conclusion that respondents are
estopped from asserting that the previous recognition of the property as commercial
was wrong.
The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning
Administrator Romeo N. Perez (Perez), were incorrect as "he had no authority to make
the conversion or reclassification of the land from agricultural to commercial." 76 Yet
contrary to the premise of the RTC, the certifications issued by Perez did no such thing.
Nowhere in the certifications did it state that Perez was exercising the power to
reclassify the land from agricultural to commercial. What Perez attested to in those
documents was that the property "is classified as Commercial area," "in conformity with
the Land Use Plan of this municipality and does not in any way violate the existing
Zoning Ordinance of Cauayan, Isabela." What these certifications confirm is that
according to the Land Use Plan and existing zoning ordinances of Cauayan, the
property in question is commercial.

Compounding its error, the RTC also stated that following Section 65 77 of Rep. Act No.
6657, or the Comprehensive Agrarian Reform Law, "only the DAR, upon proper
application… can authorize the reclassification or conversion of the use of the land from
agricultural to residential, commercial or industrial." The citation is misleading. Section 4
of the same law provides for the scope of the agrarian reform program under the CARL
as covering "all public and private agricultural lands, as provided in Proclamation No.
131 and Executive Order No. 229, including other lands of the public domain suitable for
agriculture."78 Section 3(c) defines agricultural lands as "land devoted to agricultural
activity as defined in this Act and not classified as mineral, forest, residential,
commercial or industrial land."79 Obviously, if the property had already been classified
as commercial land at the time of the enactment of the CARL, it does not fall within the
class of agricultural lands which may be subject of conversion under Section 65 of that
law. Section 65, as relied upon by the trial court, would have been of relevance only if it
had been demonstrated by respondents that the property was still classified as
agricultural when the CARL was enacted.

It is worth emphasizing that because the acts complained of the respondents led to the
closure of petitioners’ radio stations, at the height of election season no less,
respondents actions warrant strict scrutiny from the courts, and there can be no
presumption that their acts are constitutional or valid. In discharging the burden of
establishing the validity of their actions, it is expected that respondents, as a condition
sine qua non, present the legal basis for their claim that the property was not zoned
commercially – the proclaimed reason for the closure of the radio stations. The lower
courts should have known better than to have swallowed respondents’ unsubstantiated
assertion hook, line and sinker.

We can also point out that aside from the evidence we have cited, petitioners’
contention that the property had been duly classified for commercial use finds
corroboration from the Order dated 14 March 2002 issued by DAR Region II Director
Aydinan in Adm. Case No. A-0200A-07B-002. The Order stated, viz:

Official records examined by this Office indicate continued use of subject land for
purposes other than agricultural since 1986. Back when Cauayan was still a
municipality, the Office of the Planning and Development Coordinator documented
subject land under a commercial classification. The Zoning Administrator deputized by
the Housing and Land Use Regulatory Board certified in 1998 that subject land’s
attribution to the Commercial Zone "is in conformity with the Land Use Plan of this
municipality and does not in any way violate any existing Zoning Ordinance of Cauayan,
Isabela" adding the stipulation that a 15 meter setback from the centerline of the
National Road has to be observed.

If the area in which subject land is found was already classified non-agricultural even
before urban growth saw Cauayan became a city in 2001, assuming its reversion to the
agricultural zone now taxes logic. In any case, such a dubious assumption can find no
support in any current land use plan for Cauayan approved by the National Economic
Development Authority.80

Petitioners’ citation of this Order has been viciously attacked by respondents, with
approval from the lower courts. Yet their challenges are quite off-base, and ultimately
irrelevant.1avvphi1

The Order has been characterized by respondents as a forgery, based on a certification

issued by the Head of the RCLUPPI Secretariat that his office "has no official record nor
case docketed of the petition filed by CBS Development Corporation, represented by
Charmy Sabigan and the order issued bearing Docket No. ADM. Case No. A-02200A-
07B-002 of the subject case, did not emanate from RCLUPPI which has its own
docketing system to applications for conversion/exemption under DOJ Opinion No. 44,
Series of 1990."81 Respondents thus hint at a scenario where petitioners scrambled to
create the Order out of nowhere in order to comply with the sought-after requirements.
However, an examination of the Order reveals an explanation that attests to the veracity
of the Order without denigrating from the truthfulness of the RCLUPPI certification.

The Order notes that the petition had been filed by CDC with the DAR Region II "to, in
effect, officially remove from the agrarian reform sub-zone, in particular, and the broad
agricultural, in general, Petitioner’s land holding embraced by Transfer Certificate of
Title No. T-254786 which is located in [B]arangay Minante II of Cauayan City x x x." 82 It
goes on to state:

Herein petition can go through the normal procedure and, after the submission of
certain documentary supports that have to be gathered yet from various agencies,
should be granted as a matter of course. However, a new dimension has been
introduced when the unformalized conversion of the use of subject land from an
agricultural to a non-agricultural mode has provided an excuse to some official quarters
to disallow existing commercial operation, nay, the broadcast activities of Petitioner and,
thus, perhaps threaten an essential freedom in our democratic setting, the liberty of
mass media organizations to dispense legitimate information to the public unhampered
by any extraneous obstacles. Hence, overarching public interest has made an official
declaration of subject landholding’s removal from the agricultural zone most urgent and,
thus immediate action on the case imperative.
To the extent that legitimate social interest are unnecessarily prejudiced otherwise,
procedural rules laid down by Government must yield to the living reason and to
common sense in the concrete world as long as the underlying principles of effective
social-justice administration and good governance are not unduly sacrificed. Thus, it is
incumbent upon the Department of Agrarian Reform, or DAR for brevity, to take into
account in decision-making with respect to the case at hand more basic principles in
order to uphold the cause of conscientious and timely public service.

Needless to say, this Office, given the latitude of discretion inherent to it, can
simultaneously address the Petition and the procedural concerns collateral to it when
subordinate offices tend to treat such concerns as factors complicating the essential
question or questions and view the Petition as one that it is not amenable to ready
problem-solving and immediate decision-making. To forestall a cycle of helpless
inaction or indecisive actions on the part of the subordinate offices as customarily
happens in cases of this nature, this Office shall proceed to treat the petition at hand as
a matter of original jurisdiction in line with its order of Assumption of Direct Jurisdiction
of 03 December 2001, a prior action taken, in general, by this Office over cases of
Land-Tenure Improvement, Failure, Problematic Coverage, Land-Owners’ and Special
Concerns, Other Potential Flash Points of Agrarian Conflict, and Long-Standing
Problems Calling for Discretionary Decision Making. 83

In so many words, DAR Region II Director Aydinan manifested that he was assuming
direct jurisdiction over the petition, to the exclusion of subordinate offices such as that
which issued the certification at the behest of the respondents, the RCLUPPI of the
DAR Region II Office. Thus, the RCLUPPI could have validly attested that "the subject
case did not emanate from the RCLUPPI which has its own docketing system to
applications for conversion/exemption under DOJ Opinion No. 44, Series of 1990." One
could quibble over whether Director Aydinan had authority to assume direct jurisdiction
over CDC’s petition to the exclusion of the RCLUPPI, but it would not detract from the
apparent fact that the Director of the DAR Region II Office did issue the challenged
Order. Assuming that the Order was issued without or in excess of jurisdiction, it does
not mean that the Order was forged or spurious, it would mean that the Order is void.

How necessary is it for us to delve into the validity or efficacy of the Aydinan Order?
Certainly, any conclusions we draw from the said Order are ultimately irrelevant to the
resolution of these petitions. The evidence is compelling enough that the property had
already been duly classified for commercial use long before the Aydinan Order was
issued. Respondents, who had the burden of proving that they were warranted in
ordering the closure of the radio stations, failed to present any evidence to dispute the
long-standing commercial character of the property. The inevitable conclusion is that
respondents very well knew that the property, was commercial in character, yet still
proceeded without valid reason and on false pretenses, to refuse to issue the mayor’s
permit and subsequently close the radio stations. There is circumstantial evidence that
these actions were animated by naked political motive, by plain dislike by the Cauayan
City powers-that-be of the content of the broadcast emanating in particular from DZNC,
which had ties to political opponents of the respondents. Respondents were further
estopped from disclaiming the previous consistent recognition by the Cauayan City
government that the property was commercially zoned unless they had evidence, which
they had none, that the local officials who issued such certifications acted irregularly in
doing so.

It is thus evident that respondents had no valid cause at all to even require petitioners to
secure "approved land conversion papers from the DAR showing that the property was
converted from prime agricultural land to commercial land." That requirement, assuming
that it can be demanded by a local government in the context of approving mayor’s
permits, should only obtain upon clear proof that the property from where the business
would operate was classified as agricultural under the LGU’s land use plan or zoning
ordinances and other relevant laws. No evidence to that effect was presented by the
respondents either to the petitioners, or to the courts.

V.

Having established that respondents had violated petitioners’ legal and constitutional
rights, let us now turn to the appropriate reliefs that should be granted.

At the time petitioners filed their special civil action for mandamus on 15 April 2004,
their radio stations remained in operation despite an earlier attempt by respondents to
close the same, by virtue of an order rendered by the COMELEC. The mandamus
action sought to compel respondents to immediately issue petitioners’ zoning
clearances and mayor’s permit for 2004. During the pendency of the action for
mandamus, respondents finally succeeded in closing the radio stations, and it was
possible at that stage for petitioners to have likewise sought the writs of prohibition
and/or certiorari. Petitioners instead opted to seek for a writ or preliminary mandatory
injunction from the trial court, a viable

recourse albeit one that remains ancillary to the main action for mandamus.

We had previously acknowledged that petitioners are entitled to a writ of preliminary

mandatory injunction that would have prevented the closure of the radio stations. In
addition, we hold that the writ of mandamus lies. Mandamus lies as the proper relief
whenever a public officer unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law.84 For the year 2004, petitioners had duly complied with the requirements
for the issuance of the same mayor’s permit they had obtained without issue in years
prior. There was no basis for respondents to have withheld the zoning clearances, and
consequently the mayor’s permit, thereby depriving petitioners of the right to broadcast
as certified by the Constitution and their particular legislative franchise.

We turn to the issue of damages. Petitioners had sought to recover from respondents
₱8 Million in temperate damages, ₱1 Million in exemplary damages, and ₱1 Million in
attorney’s fees. Given respondents’ clear violation of petitioners’ constitutional
guarantee of free expression, the right to damages from respondents is squarely
assured by Article 32 (2) of the Civil Code, which provides:

Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:

xxxx

(2) Freedom of speech;

We noted in Lim v. Ponce de Leon that "[p]ublic officials in the past have abused their
powers on the pretext of justifiable motives or good faith in the performance of their
duties… [and] the object of [Article 32 of the Civil Code] is to put an end to official abuse
by plea of the good faith."85 The application of Article 32 not only serves as a measure
of pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves
notice to public officers and employees that any violation on their part of any person’s
guarantees under the Bill of Rights will meet with final reckoning.

The present prayer for temperate damages is premised on the existence of pecuniary
injury to petitioner due to the actions of respondents, the amount of which nevertheless
being difficult to prove.86 Temperate damages avail when the court finds that some
pecuniary loss has been suffered but its amount can not, from the nature of the case, be
proved with certainty.87 The existence of pecuniary injury at bar cannot be denied.
Petitioners had no way of knowing it when they filed their petition, but the actions of
respondents led to the closure of their radio stations from June 2004 until this Court
issued a writ of preliminary injunction in January 2006. 88 The lost potential income
during that one and a half year of closure can only be presumed as substantial enough.
Still, despite that fact, possibly unanticipated when the original amount for claimed
temperate damages was calculated, petitioners have maintained before this Court the
same amount, ₱8 Million, for temperate damages. We deem the amount of ₱4 Million
"reasonable under the circumstances."89

Exemplary damages can be awarded herein, since temperate damages are available.
Public officers who violate the Constitution they are sworn to uphold embody "a poison
of wickedness that may not run through the body politic." 90 Respondents, by purposely
denying the commercial character of the property in order to deny petitioners’ the
exercise of their constitutional rights and their business, manifested bad faith in a
wanton, fraudulent, oppressive and malevolent manner. 91 The amount of exemplary
damages need not be proved where it is shown that plaintiff is entitled to temperate
damages,92 and the sought for amount of ₱1 Million is more than appropriate. We
likewise deem the amount of ₱500 Thousand in attorney’s fees as suitable under the
circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of
Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby
REVERSED and SET ASIDE. The instant petition for mandamus is hereby GRANTED
and respondents are directed to immediately issue petitioners’ zoning clearances and
mayor’s permits for 2004 to petitioners

Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma

Fernandez-Garcia are hereby ORDERED to pay petitioners JOINTLY AND
SEVERALLY the following amounts in damages:

(1) FOUR MILLION PESOS (₱4,000,000.00) as TEMPERATE DAMAGES 93;

(2) ONE MILLION PESOS (₱1,000,000.00) as EXEMPLARY DAMAGES;

(3) FIVE HUNDRED THOUSAND PESOS (₱ 500,000.00) as ATTORNEY’S

FEES.

Costs against respondents.

G.R. No. 164437               May 15, 2009

HECTOR C. VILLANUEVA, Petitioner,
vs.
PHILIPPINE DAILY INQUIRER, INC., LETTY JIMENEZ MAGSANOC, ROSAURO G.
ACOSTA, JOSE MARIA NOLASCO, ARTEMIO T. ENGRACIA, JR., RAFAEL
CHEEKEE, and MANILA DAILY BULLETIN PUBLISHING CORPORATION,
NAPOLEON G. RAMA, BEN F. RODRIGUEZ, ARTHUR S. SALES, CRIS J. ICBAN,
JR., Respondents.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Amended Decision 1 dated May 25, 2004
of the Court of Appeals in CA-G.R. CV No. 54134, reversing the Decision 2 of the
Regional Trial Court (RTC) of Negros Oriental, Dumaguete City, Branch 44 in Civil Case
No. 206-B, which had awarded damages to petitioner for respondents’ false reporting.

The basic facts in this case are uncomplicated.

Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the May
11, 1992 elections.

On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the
disqualification of petitioner from running in the elections. Said petition, however, was
denied by the COMELEC.3
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin
Publishing Corporation (Manila Bulletin) published the following story:

The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for

mayor of Bais City for having been convicted in three administrative cases for grave
abuse of authority and harassment in 1987, while he was officer-in-charge of the
mayor’s office of Bais City.4 [Emphasis and underscoring supplied.]

A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc.
(PDI) also came out with a similar story, to wit:

The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD

candidate for mayor of Bais City for having been convicted in three administrative
cases for grave abuse of authority and harassment in 1987, while he was the
officer-in-charge of the mayor’s office in the city.

The Comelec upheld the recommendation of the Comelec office in Bais City, stressing
that Villanueva’s conviction in the administrative cases barred him from seeking any
elective office.

The Comelec cited Section 40 of the Local Government Code of 1991, which provides
that among those who are disqualified from running for any elective position are "those
removed from office as a result of an administrative case."

Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government
Minister Aquilino Pimentel. Sometime during the same year, three administrative cases
were instituted against Villanueva before the Department of Local Government upon
complaint of Rebecco V. Fernandez and Dr. Harte C. Fuentes.

Sometime in May 1987, the ministry found Villanueva "guilty as charged" and ordered
him removed from his position as OIC of the city government, which decision was
approved by Minister Jaime Ferrer.

In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace
Hector Villanueva who had been removed from office.

The poll body also stated that insofar as the penalty of the removal is concerned, this
cannot be reversed anymore, and consequently cannot be the subject matter of an
appeal.

The indefinite term as OIC to which respondent was appointed in 1986 already lapsed,
with the holding of the 1988 local elections and the assumption of office of those elected
therein.5 [Emphasis and underscoring supplied.]

On May 11, 1992, the national and local elections were held as scheduled. When
results came out, it turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories,
petitioner sued respondents PDI and Manila Bulletin as well as their publishers and
editors for damages before the RTC of Bais City. He alleged that the articles were
"maliciously timed" to defeat him. He claimed he should have won by landslide, but his
supporters reportedly believed the news items distributed by his rivals and voted for
other candidates. He asked for actual damages of ₱270,000 for the amount he spent for
the campaign, moral damages of ₱10,000,000, an unspecified amount of exemplary
damages, attorney’s fees of ₱300,000 and costs of suit. 6

Respondents disclaimed liability. They asserted that no malice can be attributed to them
as they did not know petitioner and had no interest in the outcome of the election,
stressing that the stories were privileged in nature. 7

According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a
COMELEC commissioner’s press briefing. He, however, came in late and only a fellow
reporter told him that the disqualification case against petitioner was granted. He did not
bother to get a confirmation from anyone as he had a deadline to beat. 8

PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story
from a press release. He claimed that he found the press release on his desk the day
Manila Bulletin published the same story. The press release bore COMELEC’s
letterhead and was signed by one Sonia Dimasupil, a former Malaya newspaper editor
who was in-charge of COMELEC press releases. He tried to contact her but she was
out of the office. Since the news item was also published in the Manila Bulletin, he felt
confident the press release was authentic. He however failed to produce the press
release in court.9

On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:

WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants

Philippine Daily Inquirer, [Inc.] and Manila [Daily] Bulletin Publishing Corporation with
their respective officers are liable [for] damages to plaintiff in the following manner:

1. As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily]
Bulletin Publishing Corporation are ordered to pay ₱1,000,000.00 each to
plaintiff;

2. Both defendants are likewise ordered to pay an exemplary damage in the

amount of ₱500,000.00 each;

3. To pay plaintiff’s attorney’s fees in the amount of ₱100,000.00;

4. And to pay the costs.

SO ORDERED.10
The trial court found the news items derogatory and injurious to petitioner’s reputation
and candidacy. It faulted respondents for failing to verify the truth of the news tips they
published and held respondents liable for negligence, citing Policarpio v. Manila Times
Pub. Co., Inc.11 The trial court also ruled that because the news items lacked truth and
fairness, they were not privileged communications.

On appeal by respondents, the Court of Appeals dismissed the complaint. It explained

that although the stories were false and not privileged, as there is no proof they were
obtained from a press conference or release, respondents were not impelled by malice
or improper motive. There was also no proof that petitioner’s supporters junked him due
to the reports. Neither was there any proof he would win, making his action unfounded.

Before us, petitioner raises the lone issue of whether:

[THE] HONORABLE APPELLATE COURT COMMITTED … GRAVE ABUSE OF

DISCRETION AMOUNTING TO UTTER LACK OF JURISDICTION WHEN IT
UNILATERALLY, UNPROCEDURALLY AND ARBITRARILY CHANGED THE
PLEADING-BORNE AND PRE-TRIAL ORDER DELINEATED THEORY OF QUASI-
DELICT OF APPELLEE, THEREBY DISMISSING THE CASE FOR FAILURE TO
EVIDENCE AN ESSENTIAL REQUISITE OF ITS IMPOSED IRRELEVANT THEORY. 12

Simply stated, we are asked to resolve the issue of whether petitioner is required to
prove malice to be entitled to damages.

Petitioner argues that his cause of action is based on quasi-delict which only requires
proof of fault or negligence, not proof of malice beyond reasonable doubt as required in
a criminal prosecution for libel. He argues that the case is entirely different and separate
from an independent civil action arising from libel under Article 100 13 of the Revised
Penal Code. He claims he proffered proofs sustaining his claim for damages
under quasi-delict, not under the law on libel, as malice is hard to prove. He stresses
that nowhere in the complaint did he mention libel, and nothing in his complaint shows
that his cause of action had some shade of libel as defined in the Revised Penal Code.
He also did not hint a resort to a criminal proceeding for libel. 14

PDI and its officers argue that petitioner’s complaint clearly lays a cause of action
arising from libel as it highlights malice underlying the publications. And as malice is an
element of libel, the appellate court committed no error in characterizing the case as
one arising from libel.15

For their part, Manila Bulletin and its officers claim that petitioner changed his theory,
which must be disallowed as it violates respondents’ right to due process. Although
petitioner’s claim for damages before the trial court hinged on the erroneous
publications, which he alleged were maliciously timed, he claims in his petition before
this Court that his cause of action is actually one for quasi-delict or tort. They stress that
the prayer and allegations in petitioner’s complaint, which never alleged quasi-delict or
tort but malicious publication as basis for the claim for damages, control his case theory.
Thus, it may not be altered unless there was an amendment of the complaint to change
the cause of action. They claim that petitioner’s initiatory pleading and the trial court’s
pre-trial order and decision reveal that his cause of action for damages arose from the
publications of the "malicious" articles; hence, he should have proved actual malice to
be entitled to any award of damages. They added that the appellate court correctly ruled
that the articles were not published with actual malice. 161avvphil.zw+

We rule in favor of the respondents.

Basic is the rule that what determines the nature of an action as well as which court has
jurisdiction over it are the allegations of the complaint and the character of the relief
sought.17 The nature of a pleading is determined by allegations therein made in good
faith, the stage of the proceeding at which it is filed, and the primary objective of the
party filing the same. The ground chosen or the rationale adopted by the court in
resolving the case does not determine or change the real nature thereof.

The complaint was denominated as one for "damages", and a perusal of its content
reveals that the factual allegations constituted a complaint for damages based on
malicious publication. It specifically pointed out that petitioner lost the election because
of the bad publicity created by the malicious publication of respondents PDI and Manila
Bulletin. It is alleged numerous times that the action for damages stemmed from
respondents’ malicious publication. Petitioner sought that respondents be declared
guilty of irresponsible and malicious publication and be made liable for damages. The
fact that petitioner later on changed his theory to quasi-delict does not change the
nature of petitioner’s complaint and convert petitioner’s action into quasi-delict. The
complaint remains to be one for damages based on malicious publication.

Consequently, as the issue of malice was raised, it was incumbent on petitioner to

prove the same. The basic rule is that mere allegation is not evidence, and is not
equivalent to proof.18 As correctly stated by the Court of Appeals, while the questioned
news item was found to be untrue, this does not necessarily render the same malicious.

To fully appreciate the import of the complaint alleging malice and damages, we must
recall the essence of libel.

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."19 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. 20 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.21

We note that the publications or articles in question are neither private communications
nor true reports of official proceedings without any comments or remarks. However, this
does not necessarily mean that the questioned articles are not privileged. The
enumeration under Art. 354 is not an exclusive list of qualified privileged
communications since fair commentaries on matters of public interest are
likewise privileged and constitute a valid defense in an action for libel or
slander.22 The rule on privileged communication had its genesis not in the nation’s
penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech
and of the press. As early as 1918, in United States v. Cañete,23 this Court ruled that
publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech.24

In the instant case, there is no denying that the questioned articles dealt with matters of
public interest. These are matters about which the public has the right to be informed,
taking into account the very public character of the election itself. For this reason, they
attracted media mileage and drew public attention not only to the election itself but to
the candidates. As one of the candidates, petitioner consequently assumed the status of
a public figure within the purview of Ayers Productions Pty. Ltd. v. Capulong.25

But even assuming a person would not qualify as a public figure, it would not
necessarily follow that he could not validly be the subject of a public comment. For he
could; for instance, if and when he would be 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 public’s primary interest is in the event;
the public focus is on the conduct of the participant and the content, effect and
significance of the conduct, not the participant’s prior anonymity or notoriety.26

In any event, having been OIC-Mayor of Bais City after the People Power Revolution,
petitioner in this case as early as 1992 was already a well-known official and public
figure.

However, it must be stressed that the fact that a communication or publication is

privileged does not mean that it is not actionable; the privileged character simply does
away with the presumption of malice, which the plaintiff has to prove in such a
case.27 That proof in a civil case must of course be based on preponderance of
evidence. This, however, petitioner failed to do in this case.

Under the current state of our jurisprudence, to be considered malicious, the libelous
statement 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. "Reckless
disregard of what is false or not" means that the author or publisher entertains serious
doubt as to the truth of the publication, or that he possesses a high degree of
awareness of their probable falsity.28

In the instant case, we find no conclusive showing that the published articles in question
were written with knowledge that these were false or in reckless disregard of what was
false or not. According to Manila Bulletin reporter Edgardo T. Suarez, he got the story
from a fellow reporter who told him that the disqualification case against petitioner was
granted. PDI, on the other hand, said that they got the story from a press release the
very same day the Manila Bulletin published the same story. PDI claims that the press
release bore COMELEC’s letterhead, signed by one Sonia Dimasupil, who was in-
charge of COMELEC press releases. They also tried to contact her but she was out of
the office. Since the news item was already published in the Manila Bulletin, they felt
confident the press release was authentic. Following the narration of events narrated by
respondents, it cannot be said that the publications, were published with reckless
disregard of what is false or not.

Nevertheless, even assuming that the contents of the articles turned out to be 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. 29

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
malice or damages, i.e. libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community. 30

Likewise, in our view respondents’ failure to counter-check their report or present their
informant should not be a reason to hold them liable. 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." 31 Petitioner, in this case, presented no
proof that respondents entertained such awareness. Failure to present respondents’
informant before the court should not be taken against them. 32

Worth stressing, jurisprudence instructs us that a privileged communication should not

be subjected to microscopic examination to discover grounds for malice or falsity. Such
excessive scrutiny would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides.33

Further, worthy of note, before the filing of the complaint, respondents herein received
no word of protest, exception or objection from petitioner. Had the error in the news
reports in question been pointed out by interested parties to the respondents, their
publishers and editors could have promptly made a rectification through print and
broadcast media just before and during the election day deflecting thereby any
prejudice to petitioner’s political or personal interest.

As aptly observed in Quisumbing v. Lopez, et al.:34

Every citizen of course has the right to enjoy a good name and reputation, but we do not
consider that the respondents, under the circumstances of this case, had violated said
right or abused the freedom of the press. The newspapers should be given such
leeway and tolerance as to enable them to courageously and effectively perform
their important role in our democracy. In the preparation of stories, press reporters
and edition usually have to race with their deadlines; and consistently with good faith
and reasonable care, they should not be held to account, to a point of
suppression, for honest mistakes or imperfection in the choice of words. 35 [Emphasis
supplied.]

We find respondents entitled to the protection of the rules concerning qualified privilege,
growing out of constitutional guaranties in our Bill of Rights. We cannot punish
journalists including publishers for an honest endeavor to serve the public when moved
by a sense of civic duty and prodded by their sense of responsibility as news media to
report what they perceived to be a genuine report.

Media men are always reminded of their responsibilities as such. This time, there is also
a need to remind public figures of the consequences of being one. Fittingly, as held
in Time, Inc. v. Hill,36 one of the costs associated with participation in public affairs is an
attendant loss of privacy.

Exposure of the self to others in varying degrees is a concomitant of life in a civilized

community. The risk of this exposure is an essential incident of life in a society which
places a primary value on freedom of speech and of press. "Freedom of discussion, if it
would fulfill its historic function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of society to cope with the
exigencies of their period."37

On petitioner’s claim for damages, we find no evidence to support their award. Indeed, it
cannot be said that respondents published the questioned articles for the sole purpose
of harassing petitioner. Proof and motive that the publication was prompted by a sinister
design to vex and humiliate petitioner has not been clearly and preponderantly
established to entitle the petitioner to damages. There remains unfulfilled the need to
prove that the publications were made with actual malice – that is, with the knowledge
of the publications’ falsity or with reckless disregard of whether they were false or not. 38

Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:

For liability to arise then without offending press freedom, there is this test to meet: "The
constitutional guarantees require, we think, a federal rule that prohibits a public official
from recovering damages for a defamatory falsehood relating to his official conduct
unless he proves that the 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." The United States Supreme Court went further in Curtis Publishing Co. v.
Butts,39 where such immunity, was held as covering statements concerning
public figures regardless of whether or not they are government officials. Why
there should be such an extension is understandable in the light of the broad
scope enjoyed by press freedom which certainly allows a full and free discussion
of public issues. What can be more logical and appropriate, then, than such an
expansion of the principle. As noted by a commentator: "Since discussion of public
issues cannot be meaningful without reference to the men involved on both sides
of such issues, and since such men will not necessarily be public officials, one
cannot but agree that the Court was right in Curtis to extend the Times 40 rule to all
public figures."41 [Emphasis supplied.]

Furthermore, the guarantee of press freedom has also come to ensure that claims for
damages arising from the utilization of the freedom be not unreasonable or exorbitant
as to practically cause a chilling effect on the exercise thereof. Damages, in our view,
could not simply arise from an inaccurate or false statement without irrefutable proof of
actual malice as element of the assailed publication.

WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of
Appeals in CA-G.R. CV No. 54134 is AFFIRMED.

G.R. No. 180291               July 27, 2010

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA,

in his capacity as PRESIDENT and GENERAL MANAGER of the GSIS, Petitioners,
vs.
DINNAH VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL
RUBIO, ROWENA THERESE B. GRACIA, PILAR LAYCO, and ANTONIO JOSE
LEGARDA, Respondents.

DECISION

MENDOZA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the August 31, 2007 Decision 1 of the Court of Appeals (CA), in
CA-G.R. SP No. 98952, dismissing the petition for certiorari of Government Service
Insurance System (GSIS) assailing the Civil Service Commission's Resolution No.
062177.

THE FACTS:

Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the

GSIS, filed separate formal charges against respondents Dinnah Villaviza, Elizabeth
Duque, Adronico A. Echavez, Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco,
and Antonio Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the Best
Interest of the Service pursuant to the Rules of Procedure in Administrative
Investigation (RPAI) of GSIS Employees and Officials, III, D, (1, c, f) in relation to
Section 52A (3), (20), Rule IV, of the Uniform Rules on Administrative Cases in the Civil
Service (URACCS), in accordance with Book V of the Administrative Code of 1987,
committed as follows:

That on 27 May 2005, respondent, wearing red shirt together with some employees,
marched to or appeared simultaneously at or just outside the office of the Investigation
Unit in a mass demonstration/rally of protest and support for Messrs. Mario Molina and
Albert Velasco, the latter having surreptitiously entered the GSIS premises;

x x x           x x x          x x x

That some of these employees badmouthed the security guards and the GSIS
management and defiantly raised clenched fists led by Atty. Velasco who was barred by
Hearing Officer Marvin R. Gatpayat in an Order dated 24 May 2005 from appearing as
counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as
the Code of Conduct and Ethical Standards for Public Officials and Employees;

That respondent, together with other employees in utter contempt of CSC Resolution
No. 021316, dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited
Concerted Mass Actions in the Public Sector caused alarm and heightened some
employees and disrupted the work at the Investigation Unit during office hours. 2

This episode was earlier reported to PGM Garcia, through an office memorandum dated
May 31, 2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis
Nagtalon. On the same day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty.
Lutgardo Barbo, issued a memorandum to each of the seven (7) respondents requiring
them to explain in writing and under oath within three (3) days why they should not be
administratively dealt with.3

Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two
others, submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that
there was a planned mass action, the respondents explained that their act of going to
the office of the GSIS-IU was a spontaneous reaction after learning that their former
union president was there. Aside from some of them wanting to show their support, they
were interested in that hearing as it might also affect them. For her part, respondent
Villaviza submitted a separate letter explaining that she had a scheduled pre-hearing at
the GSIS-IU that day and that she had informed her immediate supervisor about it,
attaching a copy of the order of pre-hearing. These letters were not under oath. 4

PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct
and/or Conduct Prejudicial to the Best Interest of the Service against each of the
respondents, all dated June 4, 2005. Respondents were again directed to submit their
written answers under oath within three (3) days from receipt thereof. 5 None was filed.

On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding
all seven (7) respondents guilty of the charges and meting out the penalty of one (1)
year suspension plus the accessory penalties appurtenant thereto.

On appeal, the Civil Service Commission (CSC) found the respondents guilty of the

lesser offense of Violation of Reasonable Office Rules and Regulations and reduced the
penalty to reprimand. The CSC ruled that respondents were not denied their right to due
process but there was no substantial evidence to hold them guilty of Conduct Prejudicial
to the Best Interest of the Service. Instead,

x x x. The actuation of the appellants in going to the IU, wearing red shirts, to witness a
public hearing cannot be considered as constitutive of such offense. Appellants'
(respondents herein) assembly at the said office to express support to Velasco, their
Union President, who pledged to defend them against any oppression by the GSIS
management, can be considered as an exercise of their freedom of expression, a
constitutionally guaranteed right.6 x x x

PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the
Court of Appeals via a Petition for Review under Rule 43 of the Rules on Civil
Procedure.7 The CA upheld the CSC in this wise:

The Civil Service Commission is correct when it found that the act sought to be
punished hardly falls within the definition of a prohibited concerted activity or mass
action. The petitioners failed to prove that the supposed concerted activity of the
respondents resulted in work stoppage and caused prejudice to the public service. Only
about twenty (20) out of more than a hundred employees at the main office, joined the
activity sought to be punished. These employees, now respondents in this case, were
assigned at different offices of the petitioner GSIS. Hence, despite the belated claim of
the petitioners that the act complained of had created substantial disturbance inside the
petitioner GSIS' premises during office hours, there is nothing in the record that could
support the claim that the operational capacity of petitioner GSIS was affected or
reduced to substantial percentage when respondents gathered at the Investigation Unit.
Despite the hazy claim of the petitioners that the gathering was intended to force the
Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molina's case
and allow Atty. Velasco to represent Atty. Molina in his administrative case before
petitioner GSIS, there is likewise no concrete and convincing evidence to prove that the
gathering was made to demand or force concessions, economic or otherwise from the
GSIS management or from the government. In fact, in the separate formal charges filed
against the respondents, petitioners clearly alleged that respondents "marched to or
appeared simultaneously at or just outside the office of the Investigation Unit in a mass
demonstration/rally of protest and support for Mssrs. Mario Molina and Albert Velasco,
the latter surreptitiously entered the GSIS premises." Thus, petitioners are aware at the
outset that the only apparent intention of the respondents in going to the IU was to show
support to Atty. Mario Molina and Albert Velasco, their union officers. The belated
assertion that the intention of the respondents in going to the IU was to disrupt the
operation and pressure the GSIS administration to be lenient with Atty. Mario Molina
and Albert Velasco, is only an afterthought. 8

Not in conformity, PGM Garcia is now before us via this Petition for Review presenting
the following:

STATEMENT OF THE ISSUES

WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE

PROVISIONS OF THE RULES OF COURT ON THE EFFECT OF FAILURE TO DENY
THE ALLEGATIONS IN THE COMPLAINT AND FAILURE TO FILE ANSWER, WHERE
THE RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE ANY
RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.

II

WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS CANNOT BE

EQUATED WITH DUE PROCESS IN JUDICIAL SENSE AUTHORIZES AN
ADMINISTRATIVE TRIBUNAL TO CONSIDER IN EVIDENCE AND GIVE FULL
PROBATIVE VALUE TO UNNOTARIZED LETTERS THAT DID NOT FORM PART OF
THE CASE RECORD.

III

WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS BASED ON

EVIDENCE ON RECORD BUT MAKES A CONCLUSION OF LAW BASED ON THE
ALLEGATIONS OF A DOCUMENT THAT NEVER FORMED PART OF THE CASE
RECORDS IS VALID.

IV

WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE

OPERATIONAL CAPACITY OF AN AGENCY, DUE TO UNRULY MASS GATHERING
OF GOVERNMENT EMPLOYEES INSIDE OFFICE PREMISES AND WITHIN OFFICE
HOURS, IS REQUIRED TO HOLD THE SAID EMPLOYEES LIABLE FOR CONDUCT
PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE PURSUANT TO CSC
RESOLUTION NO. 021316.

WHETHER AN UNRULY MASS GATHERING OF TWENTY EMPLOYEES, LASTING

FOR MORE THAN AN HOUR DURING OFFICE HOURS, INSIDE OFFICE PREMISES
AND WITHIN A UNIT TASKED TO HEAR AN ADMINISTRATIVE CASE, TO PROTEST
THE PROHIBITION AGAINST THE APPEARANCE OF THEIR LEADER AS COUNSEL
IN THE SAID ADMINISTRATIVE CASE, FALLS WITHIN THE PURVIEW OF THE
CONSTITUTIONAL GUARANTEE TO FREEDOM OF EXPRESSION AND PEACEFUL
ASSEMBLY.

VI

WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF THEIR POSTS

FOR MORE THAN AN HOUR TO HOLD AN UNRULY PROTEST INSIDE OFFICE
PREMISES ONLY CONSTITUTES THE ADMINISTRATIVE OFFENSE OF VIOLATION
OF REASONABLE OFFICE RULES AND REGULATIONS. 9

The Court finds no merit in the petition.

Petitioners primarily question the probative value accorded to respondents' letters of

explanation in response to the memorandum of the GSIS-IU Manager. The respondents
never filed their answers to the formal charges. The petitioners argue that there being
no answers, the allegations in the formal charges that they filed should have been
deemed admitted pursuant to Section 11, Rule 8 of the Rules of Court which provides:

SECTION 11. Allegations not specifically denied deemed admitted.- Material averment

in the complaint, other than those as to the amount of liquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied specifically and under oath.

According to the petitioners, this rule is applicable to the case at bench pursuant to Rule
1, Section 4 of the Rules of Court which reads:

SECTION 4. In what cases not applicable. - These Rules shall not apply to election
cases, land registration, cadastral, naturalization and insolvency proceedings, and other
cases not herein provided for, except by analogy or in a suppletory character and
whenever practicable and convenient. (underscoring supplied)

The Court does not subscribe to the argument of the petitioners. Petitioners' own rules,
Rule XI, Section 4 of the GSIS' Amended Policy and Procedural Guidelines No. 178-04,
specifically provides:
If the respondent fails to file his Answer within five (5) working days from receipt of the
Formal Charge for the supporting evidence, when requested, he shall be considered to
have waived his right to file an answer and the PGM or the Board of Trustees, in proper
cases, shall render judgment, as may be warranted by the facts and evidence submitted
by the prosecution.

A perusal of said section readily discloses that the failure of a respondent to file an
answer merely translates to a waiver of "his right to file an answer." There is nothing in
the rule that says that the charges are deemed admitted. It has not done away with the
burden of the complainant to prove the charges with clear and convincing evidence.

It is true that Section 4 of the Rules of Court provides that the rules can be applied in a
"suppletory character." Suppletory is defined as "supplying deficiencies." 10 It means that
the provisions in the Rules of Court will be made to apply only where there is an
insufficiency in the applicable rule. There is, however, no such deficiency as the rules of
the GSIS are explicit in case of failure to file the required answer. What is clearly stated
there is that GSIS may "render judgment as may be warranted by the facts and
evidence submitted by the prosecution."

Even granting that Rule 8, Section 11 of the Rules of Court finds application in this
case, petitioners must remember that there remain averments that are not deemed
admitted by the failure to deny the same. Among them are immaterial allegations and
incorrect conclusions drawn from facts set out in the complaint. 11 Thus, even if
respondents failed to file their answer, it does not mean that all averments found in the
complaint will be considered as true and correct in their entirety, and that the
forthcoming decision will be rendered in favor of the petitioners. We must not forget that
even in administrative proceedings, it is still the complainant, or in this case the
petitioners, who have the burden of proving, with substantial evidence, the allegations in
the complaint or in the formal charges. 12

A perusal of the decisions of the CA and of the CSC will reveal that the case was
resolved against petitioners based, not on the absence of respondents' evidence, but on
the weakness of that of the petitioners. Thus, the CA wrote:

Petitioners correctly submitted the administrative cases for resolution without the
respondents' respective answer to the separate formal charges in accordance with
Section 4, Rule XI of the RPAI. Being in full control of the administrative proceeding and
having effectively prevented respondents from further submitting their responsive
answer and evidence for the defense, petitioners were in the most advantageous
position to prove the merit of their allegations in the formal charges. When petitioner
Winston Garcia issued those similarly worded decisions in the administrative cases
against the respondents, it is presumed that all evidence in their favor were duly
submitted and justly considered independent of the weakness of respondent's evidence
in view of the principle that ''the burden of proof belongs to the one who alleges and not
the one who denies."13
On the merits, what needs to be resolved in the case at bench is the question of
whether or not there was a violation of Section 5 of CSC Resolution No. 02-1316.
Stated differently, whether or not respondents' actions on May 27, 2005 amounted to a
"prohibited concerted activity or mass action." Pertinently, the said provision states:

Section 5. As used in this Omnibus Rules, the phrase ''prohibited concerted activity or
mass action'' shall be understood to refer to any collective activity undertaken by
government employees, by themselves or through their employees organizations, with
intent of effecting work stoppage or service disruption in order to realize their demands
of force concession, economic or otherwise, from their respective agencies or the
government. It shall include mass leaves, walkouts, pickets and acts of similar nature.
(underscoring supplied)

In this case, CSC found that the acts of respondents in going to the GSIS-IU office
wearing red shirts to witness a public hearing do not amount to a concerted activity or
mass action proscribed above. CSC even added that their actuations can be deemed
an exercise of their constitutional right to freedom of expression. The CA found no
cogent reason to deviate therefrom.

As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the
political rights of those in the government service, the concerted activity or mass action
proscribed must be coupled with the "intent of effecting work stoppage or service
disruption in order to realize their demands of force concession." Wearing similarly
colored shirts, attending a public hearing at the GSIS-IU office, bringing with them
recording gadgets, clenching their fists, some even badmouthing the guards and PGM
Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service
disruption and (ii) for the purpose of realizing their demands of force concession.

Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-
1316 are there to temper and focus the application of such prohibition. Not all collective
activity or mass undertaking of government employees is prohibited. Otherwise, we
would be totally depriving our brothers and sisters in the government service of their
constitutional right to freedom of expression.

Government workers, whatever their ranks, have as much right as any person in the
land to voice out their protests against what they believe to be a violation of their rights
and interests. Civil Service does not deprive them of their freedom of expression. It
would be unfair to hold that by joining the government service, the members thereof
have renounced or waived this basic liberty. This freedom can be reasonably regulated
only but can never be taken away.

A review of PGM Garcia's formal charges against the respondents reveals that he
himself was not even certain whether the respondents and the rest of the twenty or so
GSIS employees who were at the GSIS-IU office that fateful day marched there or just
simply appeared there simultaneously.14 Thus, the petitioners were not even sure if the
spontaneous act of each of the twenty or so GSIS employees on May 27, 2005 was a
concerted one. The report of Manager Nagtalon of the GSIS-SD which was the basis for
PGM Garcia's formal charges reflected such uncertainty. Thus,

Of these red shirt protesters, only Mr. Molina has official business at the Investigation
Unit during this time. The rest abandoned their post and duties for the duration of this
incident which lasted until 10:55 A.M. It was also observed that the protesters, some of
whom raised their clenched left fists, carefully planned this illegal action as evident in
their behavior of arrogance, defiance and provocation, the presence of various
recording gadgets such as VCRs, voice recorders and digital cameras, the bad
mouthing of the security guards and the PGM, the uniformity in their attire and the
collusion regarding the anomalous entry of Mr. Albert Velasco to the premises as
reported earlier.15

The said report of Nagtalon contained only bare facts. It did not show respondents'
unified intent to effect disruption or stoppage in their work. It also failed to show that
their purpose was to demand a force concession.

In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS, 16 the Court
upheld the position of petitioner GSIS because its employees, numbering between 300
and 800 each day, staged a walkout and participated in a mass protest or
demonstration outside the GSIS for four straight days. We cannot say the same for the
20 or so employees in this case. To equate their wearing of red shirts and going to the
GSIS-IU office for just over an hour with that four-day mass action in Kapisanan ng mga
Manggagawa sa GSIS case and to punish them in the same manner would most
certainly be unfair and unjust.

Recent analogous decisions in the United States, while recognizing the government's
right as an employer to lay down certain standards of conduct, tend to lean towards a
broad definition of "public concern speech" which is protected by their First Amendment.
One such case is that of Scott v. Meters.17 In said case, the New York Transit Authority
(NYTA), responsible for operation of New York City's mass transit service, issued a rule
prohibiting employees from wearing badges or buttons on their uniforms. A number of
union members wore union buttons promoting their opposition to a collective bargaining
agreement. Consequently, the NYTA tried to enforce its rule and threatened to subject
these union members to discipline. The court, though recognizing the government's
right to impose reasonable restrictions, held that the NYTA's rule was "unconstitutionally
overboard."

In another case, Communication Workers of America v. Ector County Hospital

District,18 it was held that,

A county hospital employee's wearing of a "Union Yes" lapel pin during a union
organization drive constituted speech on a matter of public concern, and the county's
proffered interest in enforcing the anti-adornment provision of its dress code was
outweighed by the employee's interest in exercising his First Amendment speech and
associational rights by wearing a pro-union lapel button. 19
Thus, respondents' freedom of speech and of expression remains intact, and CSC's
Resolution No. 02-1316 defining what a prohibited concerted activity or mass action has
only tempered or regulated these rights. Measured against that definition, respondents'
actuations did not amount to a prohibited concerted activity or mass action. The CSC
and the CA were both correct in arriving at said conclusion.

WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well
as its October 16, 2007 Resolution in CA G.R. SP No. 98952 are hereby AFFIRMED.

G.R. No. 164785               April 29, 2009

ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.

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

G.R. No. 165636               April 29, 2009

ELISEO F. SORIANO Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G.
ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as
members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB Respondents.

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and
Television Review and Classification Board (MTRCB) in connection with certain
utterances he made in his television show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae
ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of
the Iglesia ni Cristo (INC),2 against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in petitioner’s remark, was
then a minister of INC and a regular host of the TV program Ang Tamang
Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004
in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang
Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of

August 16, 2004, preventively suspended the showing of Ang Dating Daan program for
20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating
the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.5 The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the
adjudication board recuse themselves from hearing the case. 6 Two days after, however,
petitioner sought to withdraw7 his motion for reconsideration, followed by the filing with
this Court of a petition for certiorari and prohibition, 8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding

respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, "Ang Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.

SO ORDERED.9
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT

[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR

THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED

WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH,
AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN
AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES
NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and
veritably been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not
expressly authorize the MTRCB to issue preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative,

investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may
be conferred by the Constitution or by statute. 12 They have in fine only such powers or
authority as are granted or delegated, expressly or impliedly, by law. 13 And in
determining whether an agency has certain powers, the inquiry should be from the law
itself. But once ascertained as existing, the authority given should be liberally
construed.14

A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise
of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:

xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x
production, x x x 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 wrong or crime
such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the

attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s
authority and functions expressly set forth in PD 1986, more particularly under its Sec.
3(d), as quoted above, which empowers the MTRCB to "supervise, regulate, and grant,
deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by
television."

Surely, the power to issue preventive suspension forms part of the MTRCB’s express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
authority subsumed in or implied from such mandate. Any other construal would render
its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a

preliminary step in an administrative investigation. 15 And the power to discipline and
impose penalties, if granted, carries with it the power to investigate administrative
complaints and, during such investigation, to preventively suspend the person subject of
the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself
to impose preventive suspension through the medium of the IRR of PD 1986. It is true
that the matter of imposing preventive suspension is embodied only in the IRR of PD
1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the

case, and in order to prevent or stop further violations or for the interest and welfare of
the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20)
days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without

more, would not work to deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is expressly empowered by statute to
regulate and supervise television programs to obviate the exhibition or broadcast of,
among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioner’s
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended
the effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension
was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCB’s duty of regulating or supervising television programs, pending a determination
of whether or not there has actually been a violation. In the final analysis, Sec. 3,
Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed,
albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the
MTRCB to functions within the literal confines of the law, would give the agency little
leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly
intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we
reiterate, provides, "To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x x." Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be inferred or are
implicit in the wordings or conferred by necessary or fair implication of the enabling
act.17 As we held in Angara v. Electoral Commission, when a general grant of power is
conferred or a duty enjoined, every particular power necessary for the exercise of one
or the performance of the other is also conferred by necessary implication. 18 Clearly, the
power to impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The
scope of the MTRCB’s authority extends beyond motion pictures. What the acronym
MTRCB stands for would suggest as much. And while the law makes specific reference
to the closure of a television network, the suspension of a television program is a far
less punitive measure that can be undertaken, with the purpose of stopping further
violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective
should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive suspension

order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed
order after petitioner, in response to a written notice, appeared before that Board for a
hearing on private respondents’ complaint. No less than petitioner admitted that the
order was issued after the adjournment of the hearing, 19 proving that he had already
appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986,
preventive suspension shall issue "[a]ny time during the pendency of the case." In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly
violated PD 198620 and of administrative complaints that had been filed against him for
such violation.21

At any event, that preventive suspension can validly be meted out even without a
hearing.22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer
the criticisms coming from the INC ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all
persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed." 23 It guards against
undue favor and individual privilege as well as hostile discrimination. 24 Surely, petitioner
cannot, under the premises, place himself in the same shoes as the INC ministers, who,
for one, are not facing administrative complaints before the MTRCB. For another, he
offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCB’s disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains
temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the fact that
the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC
ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this
case, simply too different to even consider whether or not there is a prima facie
indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered
was religious speech, adding that words like "putang babae" were said in exercise of his
religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The
section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any

particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not
automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech.
Even petitioner’s attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible
defense or refutation of the alleged lies being spread by a rival religious group. They
simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his
detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue
dovetails with those challenging the three-month suspension imposed under the
assailed September 27, 2004 MTRCB decision subject of review under G.R. No.
165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground that the decision violates, apart from
his religious freedom, his freedom of speech and expression guaranteed under Sec. 4,
Art. III of the Constitution, which reads:
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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion

pictures come within the broad protection of the free speech and expression
clause.25 Each method though, because of its dissimilar presence in the lives of people
and accessibility to children, tends to present its own problems in the area of free
speech protection, with broadcast media, of all forms of communication, enjoying a
lesser degree of protection.26 Just as settled is the rule that restrictions, be it in the form
of prior restraint, e.g., judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits, prosecution
for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 27 The freedom of
expression, as with the other freedoms encased in the Bill of Rights, is, however, not
absolute. It may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially
private concern.28 In the oft-quoted expression of Justice Holmes, the constitutional
guarantee "obviously was not intended to give immunity for every possible use of
language."29 From Lucas v. Royo comes this line: "[T]he freedom to express one’s
sentiments and belief does not grant one the license to vilify in public the honor and
integrity of another. Any sentiments must be expressed within the proper forum and with
proper regard for the rights of others." 30

Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-

defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems." In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause.32 A speech would fall under the unprotected type if the utterances
involved are "no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." 33 Being of little or no value,
there is, in dealing with or regulating them, no imperative call for the application of the
clear and present danger rule or the balancing-of-interest test, they being essentially
modes of weighing competing values,34 or, with like effect, determining which of the
clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography,
false or misleading advertisement, insulting or "fighting words", i.e., those which by their
very utterance inflict injury or tend to incite an immediate breach of peace and
expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with
respect to the average child. Hence, it is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition
of obscenity that would apply to all cases, but nonetheless stated the ensuing
observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive." x x x What remains clear
is that obscenity is an issue proper for judicial determination and should be treated on a
case to case basis and on the judge’s sound discretion. 35

Following the contextual lessons of the cited case of Miller v. California, 36 a patently
offensive utterance would come within the pale of the term obscenity should it appeal to
the prurient interest of an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the

case reveal that to an average adult, the utterances "Gago ka talaga x x x, masahol ka
pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba!" may not constitute obscene but
merely indecent utterances. They can be viewed as figures of speech or merely a play
on words. In the context they were used, they may not appeal to the prurient interests of
an adult. The problem with the challenged statements is that they were uttered in a TV
program that is rated "G" or for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds. The term "putang
babae" means "a female prostitute," a term wholly inappropriate for children, who could
look it up in a dictionary and just get the literal meaning, missing the context within
which it was used. Petitioner further used the terms, "ang gumagana lang doon yung
ibaba," making reference to the female sexual organ and how a female prostitute uses it
in her trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to
why Sandoval is different from a female prostitute and the reasons for the dissimilarity.
And upon learning the meanings of the words used, young minds, without the guidance
of an adult, may, from their end, view this kind of indecent speech as obscene, if they
take these words literally and use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the opportunity to hear petitioner’s
words, when speaking of the average person in the test for obscenity, we are speaking
of the average child, not the average adult. The average child may not have the adult’s
grasp of figures of speech, and may lack the understanding that language may be
colorful, and words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such. In this
sense, we find petitioner’s utterances obscene and not entitled to protection under the
umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily accessible to
children. With respect to the young minds, said utterances are to be treated as
unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich
source of persuasive lessons. Foremost of these relates to indecent speech without
prurient appeal component coming under the category of protected speech depending
on the context within which it was made, irresistibly suggesting that, within a particular
context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.

In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue
by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica
Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as "patently offensive" and
"indecent" under a prohibiting law, though not necessarily obscene. FCC added,
however, that its declaratory order was issued in a "special factual context," referring, in
gist, to an afternoon radio broadcast when children were undoubtedly in the audience.
Acting on the question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the broadcast
medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the monologue
would be protected speech in other contexts, albeit it did not expound and identify a
compelling state interest in putting FCC’s content-based regulatory action under
scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of

protected speech that is content-based and that which is content-neutral. A content-
based restraint is aimed at the contents or idea of the expression, whereas a content-
neutral restraint intends to regulate the time, place, and manner of the expression under
well-defined standards tailored to serve a compelling state interest, without restraint on
the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the
backdrop of the following interplaying factors: First, the indecent speech was made via
television, a pervasive medium that, to borrow from Gonzales v. Kalaw
Katigbak,42 easily "reaches every home where there is a set [and where] [c]hildren will
likely be among the avid viewers of the programs therein shown"; second, the broadcast
was aired at the time of the day when there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his speech on a "G" or "for general
patronage" rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a
show for general patronage is "[s]uitable for all ages," meaning that the "material for
television x x x in the judgment of the BOARD, does not contain anything unsuitable for
children and minors, and may be viewed without adult guidance or supervision." The
words petitioner used were, by any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in petitioner’s utterances on a general-
patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, 43 false
or misleading advertisement,44 advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would
submit, exclusive or carved in stone. Without going into specifics, it may be stated
without fear of contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another
instance of unprotected speech, created by the necessity of protecting the welfare of
our children. As unprotected speech, petitioner’s utterances can be subjected to
restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be
grave and imminent.45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test
is uncalled for under the premises. The doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the printed or spoken words may not be
subject to prior restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the government has the
power to prohibit.46 Under the doctrine, freedom of speech and of press is susceptible of
restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in
the context of prosecutions for rebellion and other crimes involving the overthrow of
government.47 It was originally designed to determine the latitude which should be given
to speech that espouses anti-government action, or to have serious and substantial
deleterious consequences on the security and public order of the community. 48 The
clear and present danger rule has been applied to this jurisdiction. 49 As a standard of
limitation on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a
court to release a defendant from liability the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster. 50 As we observed in Eastern Broadcasting
Corporation, the clear and present danger test "does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums." 51

To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of "proximity and degree"
the Court, however, in several cases—Ayer Productions v. Capulong 52 and Gonzales v.
COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the
legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and assembly
in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,"54 then the "balancing of interests" test can be applied.

The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented. x x x We must, therefore, undertake the
"delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment
of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values

and individual interests competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has been called the "balancing-of-
interests" test which has found application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious
and detailed consideration of the interplay of interests observable in a given situation or
type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional

power restricting the individual’s freedom, and the social importance and value of the
freedom so restricted, "are to be judged in the concrete, not on the basis of
abstractions," a wide range of factors are necessarily relevant in ascertaining the point
or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not
the persons affected are few; (c) the value and importance of the public interest sought
to be secured by the legislation––the reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether the specific restriction decreed by
Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may
be achieved by some other measure less restrictive of the protected freedom. 55

This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory
that it is the court’s function in a case before it when it finds public interests served by
legislation, on the one hand, and the free expression clause affected by it, on the other,
to balance one against the other and arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom, then the court
will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve
appropriate and important interests.57 To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-
month suspension was slapped on him for breach of MTRCB rules. In this setting, the
assertion by petitioner of his enjoyment of his freedom of speech is ranged against the
duty of the government to protect and promote the development and welfare of the
youth.

After a careful examination of the factual milieu and the arguments raised by petitioner
in support of his claim to free speech, the Court rules that the government’s interest to
protect and promote the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioner’s prayer to continue as program
host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is
the freedom of speech or expression, for without the enjoyment of such right, a free,
stable, effective, and progressive democratic state would be difficult to attain. Arrayed
against the freedom of speech is the right of the youth to their moral, spiritual,
intellectual, and social being which the State is constitutionally tasked to promote and
protect. Moreover, the State is also mandated to recognize and support the vital role of
the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by
the Constitutional Commission, explained that the State shall "extend social protection
to minors against all forms of neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of discrimination." 58

Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent
minds. It has a compelling interest in helping parents, through regulatory mechanisms,
protect their children’s minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-building. 59 In the
same way, the State is mandated to support parents in the rearing of the youth for civic
efficiency and the development of moral character. 60

Petitioner’s offensive and obscene language uttered in a television broadcast, without

doubt, was easily accessible to the children. His statements could have exposed
children to a language that is unacceptable in everyday use. As such, the welfare of
children and the State’s mandate to protect and care for them, as parens
patriae,61 constitute a substantial and compelling government interest in regulating
petitioner’s utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or
prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read.

Although Cohen’s written message, ["Fuck the Draft"], might have been
incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s
vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the government’s interest in the "well-
being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend
to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set.
Children then will likely will be among the avid viewers of the programs therein shown.
As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. 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.62

The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the following considerations: (1) the use of television
with its unique accessibility to children, as a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan
program. And in agreeing with MTRCB, the court takes stock of and cites with approval
the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case

does not involve a two-way radio conversation between a cab driver and a dispatcher,
or a telecast of an Elizabethan comedy. We have not decided that an occasional
expletive in either setting would justify any sanction. x x x The [FFC’s] decision rested
entirely on a nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was emphasized by the
[FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be
merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’
We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise
of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers.
It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate
and prevent should such action served and further compelling state interests. One who
utters indecent, insulting, or offensive words on television when unsuspecting children
are in the audience is, in the graphic language of FCC, a "pig in the parlor." Public
interest would be served if the "pig" is reasonably restrained or even removed from the
"parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to prior
restraint are movies, television, and radio broadcast censorship in view of its access to
numerous people, including the young who must be insulated from the prejudicial
effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or license
before showing a motion picture or broadcasting a TV program. The Board can classify
movies and television programs and can cancel permits for exhibition of films or
television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it out
of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character." 63

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what
movies are "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people," and what "tend to incite
subversion, insurrection, rebellion or sedition," or "tend to undermine the faith and
confidence of the people in their government and/or duly constituted authorities," etc.
Moreover, its decisions are executory unless stopped by a court. 64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the
power of review and prior approval of MTRCB extends to all television programs and is
valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are required to get a permit before
they air their television programs. Consequently, their right to enjoy their freedom of
speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became "a necessary evil" with the
government taking the role of assigning bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt each
other’s signals. In this scheme, station owners and broadcasters in effect waived their
right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraint—denial
of permit or subsequent punishment, like suspension or cancellation of permit, among
others.

The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under
its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i)
of PD 1986 and the remedies that may be availed of by the aggrieved private party
under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per
se for petitioner’s exercise of his freedom of speech via television, but for the indecent
contents of his utterances in a "G" rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station
owners, program producers, and hosts have impliedly accepted the power of MTRCB to
regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement and
administration of the law which it is tasked to implement. Viewed in its proper context,
the suspension sought to penalize past speech made on prime-time "G" rated TV
program; it does not bar future speech of petitioner in other television programs; it is a
permissible subsequent administrative sanction; it should not be confused with a prior
restraint on speech. While not on all fours, the Court, in MTRCB, 66 sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV
episode without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of
indecent or obscene speech in a "G" rated program is not acceptable. As made clear
in Eastern Broadcasting Corporation, "the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media."
The MTRCB, as a regulatory agency, must have the wherewithal to enforce its
mandate, which would not be effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must be
met with appropriate and proportional disciplinary action. The suspension of a violating
television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioner’s television program is
justified, and does not constitute prohibited prior restraint. It behooves the Court to
respond to the needs of the changing times, and craft jurisprudence to reflect these
times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the

very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has earlier adequately explained why
petitioner’s undue reliance on the religious freedom cannot lend justification, let alone
an exempting dimension to his licentious utterances in his program. The Court sees no
need to address anew the repetitive arguments on religious freedom. As earlier
discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in
no way a religious speech. Parenthetically, petitioner’s attempt to characterize his
speech as a legitimate defense of his religion fails miserably. He tries to place his words
in perspective, arguing evidently as an afterthought that this was his method of refuting
the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on
the night he uttered them in his television program, the word simply came out as
profane language, without any warning or guidance for undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB, and
that he was unable to demonstrate that he was unjustly discriminated against in the
MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as
PD 1986 does not provide for the range of imposable penalties that may be applied with
respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that

Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness of
the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it,
and what is the scope of his authority. For a complex economy, that may indeed be the
only way in which the legislative process can go forward. A distinction has rightfully
been made between delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done, and delegation
of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be
regarded as denying the legislature the necessary resources of flexibility and
practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel.
A standard thus defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. 67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s
protestation about undue delegation of legislative power for the sole reason that PD
1986 does not provide for a range of penalties for violation of the law is untenable. His
thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of
penalties for violation of the provisions of the decree, went beyond the terms of the law.

Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the
MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the
MTRCB, by express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall
be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k)
of the decree authorizing the MTRCB "to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]." As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power would
surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged,
and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular

power necessary for the exercise of the one or the performance of the other is also
conferred. x x x [W]hen the statute does not specify the particular method to be followed
or used by a government agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to carry out its function. 68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought to be
enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power "[to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x." And Chapter XIII, Sec. 1 of the
IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to

the immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing
Rules and Regulations governing motion pictures, television programs, and related
promotional materials shall be penalized with suspension or cancellation of permits
and/or licenses issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table of
Administrative Penalties attached without prejudice to the power of the Board to amend
it when the need arises. In the meantime the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB under the law or partake of the nature of
an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a guardian of the
public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The
MTRCB may evaluate motion pictures, television programs, and publicity materials
"applying contemporary Filipino cultural values as standard," and, from there, determine
whether these audio and video materials "are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it deems
proper. The lawmaking body cannot possibly provide for all the details in the
enforcement of a particular statute.69 The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers. 70 Administrative regulations or
"subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the
law."71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the
exercise of its statutory disciplinary functions, according it ample latitude in fixing, by
way of an appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the case may
be, would be consistent with its mandate to effectively and efficiently regulate the movie
and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere
in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend
the program host or even to prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the broadcast of such television
programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered
to be within the decree’s penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating the
statute and for whom the penalty is sought. Thus, the MTRCB’s decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order
issued pursuant to said decision must be modified. The suspension should cover only
the television program on which petitioner appeared and uttered the offensive and
obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in

which absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply
utter gutter profanity on television without adverse consequences, under the guise of
free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms
of speech and expression are not absolute freedoms. To say "any act that restrains
speech should be greeted with furrowed brows" is not to say that any act that restrains
or regulates speech or expression is per se invalid. This only recognizes the importance
of freedoms of speech and expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to
the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as
follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a

penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

G.R. No. 164785               April 29, 2009

ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.

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

G.R. No. 165636               April 29, 2009

ELISEO F. SORIANO Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G.
ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as
members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB Respondents.

DECISION
VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and
Television Review and Classification Board (MTRCB) in connection with certain
utterances he made in his television show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae
ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of
the Iglesia ni Cristo (INC),2 against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in petitioner’s remark, was
then a minister of INC and a regular host of the TV program Ang Tamang
Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004
in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang
Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of

August 16, 2004, preventively suspended the showing of Ang Dating Daan program for
20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating
the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.5 The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the
adjudication board recuse themselves from hearing the case. 6 Two days after, however,
petitioner sought to withdraw7 his motion for reconsideration, followed by the filing with
this Court of a petition for certiorari and prohibition, 8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, "Ang Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.

SO ORDERED.9

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT

[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR

THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED

WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH,
AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN
AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES
NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and
veritably been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not
expressly authorize the MTRCB to issue preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative,

investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may
be conferred by the Constitution or by statute. 12 They have in fine only such powers or
authority as are granted or delegated, expressly or impliedly, by law. 13 And in
determining whether an agency has certain powers, the inquiry should be from the law
itself. But once ascertained as existing, the authority given should be liberally
construed.14

A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise
of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x

production, x x x 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 wrong or crime
such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the

attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s
authority and functions expressly set forth in PD 1986, more particularly under its Sec.
3(d), as quoted above, which empowers the MTRCB to "supervise, regulate, and grant,
deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by
television."
Surely, the power to issue preventive suspension forms part of the MTRCB’s express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
authority subsumed in or implied from such mandate. Any other construal would render
its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a

preliminary step in an administrative investigation. 15 And the power to discipline and
impose penalties, if granted, carries with it the power to investigate administrative
complaints and, during such investigation, to preventively suspend the person subject of
the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself
to impose preventive suspension through the medium of the IRR of PD 1986. It is true
that the matter of imposing preventive suspension is embodied only in the IRR of PD
1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the

case, and in order to prevent or stop further violations or for the interest and welfare of
the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20)
days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without

more, would not work to deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is expressly empowered by statute to
regulate and supervise television programs to obviate the exhibition or broadcast of,
among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioner’s
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended
the effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension
was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCB’s duty of regulating or supervising television programs, pending a determination
of whether or not there has actually been a violation. In the final analysis, Sec. 3,
Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed,
albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the
MTRCB to functions within the literal confines of the law, would give the agency little
leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly
intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we
reiterate, provides, "To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x x." Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be inferred or are
implicit in the wordings or conferred by necessary or fair implication of the enabling
act.17 As we held in Angara v. Electoral Commission, when a general grant of power is
conferred or a duty enjoined, every particular power necessary for the exercise of one
or the performance of the other is also conferred by necessary implication. 18 Clearly, the
power to impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The
scope of the MTRCB’s authority extends beyond motion pictures. What the acronym
MTRCB stands for would suggest as much. And while the law makes specific reference
to the closure of a television network, the suspension of a television program is a far
less punitive measure that can be undertaken, with the purpose of stopping further
violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective
should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive suspension

order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed
order after petitioner, in response to a written notice, appeared before that Board for a
hearing on private respondents’ complaint. No less than petitioner admitted that the
order was issued after the adjournment of the hearing, 19 proving that he had already
appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986,
preventive suspension shall issue "[a]ny time during the pendency of the case." In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly
violated PD 198620 and of administrative complaints that had been filed against him for
such violation.21

At any event, that preventive suspension can validly be meted out even without a
hearing.22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer
the criticisms coming from the INC ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all
persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed." 23 It guards against
undue favor and individual privilege as well as hostile discrimination. 24 Surely, petitioner
cannot, under the premises, place himself in the same shoes as the INC ministers, who,
for one, are not facing administrative complaints before the MTRCB. For another, he
offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCB’s disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains
temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the fact that
the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC
ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this
case, simply too different to even consider whether or not there is a prima facie
indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered
was religious speech, adding that words like "putang babae" were said in exercise of his
religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The
section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any

particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not
automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech.
Even petitioner’s attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible
defense or refutation of the alleged lies being spread by a rival religious group. They
simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his
detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue
dovetails with those challenging the three-month suspension imposed under the
assailed September 27, 2004 MTRCB decision subject of review under G.R. No.
165636. Both overlapping issues and arguments shall be jointly addressed.
 G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground that the decision violates, apart from
his religious freedom, his freedom of speech and expression guaranteed under Sec. 4,
Art. III of the Constitution, which reads:

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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion

pictures come within the broad protection of the free speech and expression
clause.25 Each method though, because of its dissimilar presence in the lives of people
and accessibility to children, tends to present its own problems in the area of free
speech protection, with broadcast media, of all forms of communication, enjoying a
lesser degree of protection.26 Just as settled is the rule that restrictions, be it in the form
of prior restraint, e.g., judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits, prosecution
for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 27 The freedom of
expression, as with the other freedoms encased in the Bill of Rights, is, however, not
absolute. It may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially
private concern.28 In the oft-quoted expression of Justice Holmes, the constitutional
guarantee "obviously was not intended to give immunity for every possible use of
language."29 From Lucas v. Royo comes this line: "[T]he freedom to express one’s
sentiments and belief does not grant one the license to vilify in public the honor and
integrity of another. Any sentiments must be expressed within the proper forum and with
proper regard for the rights of others." 30

Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-

defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems." In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause.32 A speech would fall under the unprotected type if the utterances
involved are "no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." 33 Being of little or no value,
there is, in dealing with or regulating them, no imperative call for the application of the
clear and present danger rule or the balancing-of-interest test, they being essentially
modes of weighing competing values,34 or, with like effect, determining which of the
clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography,
false or misleading advertisement, insulting or "fighting words", i.e., those which by their
very utterance inflict injury or tend to incite an immediate breach of peace and
expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with
respect to the average child. Hence, it is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition
of obscenity that would apply to all cases, but nonetheless stated the ensuing
observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive." x x x What remains clear
is that obscenity is an issue proper for judicial determination and should be treated on a
case to case basis and on the judge’s sound discretion. 35

Following the contextual lessons of the cited case of Miller v. California, 36 a patently
offensive utterance would come within the pale of the term obscenity should it appeal to
the prurient interest of an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the

case reveal that to an average adult, the utterances "Gago ka talaga x x x, masahol ka
pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba!" may not constitute obscene but
merely indecent utterances. They can be viewed as figures of speech or merely a play
on words. In the context they were used, they may not appeal to the prurient interests of
an adult. The problem with the challenged statements is that they were uttered in a TV
program that is rated "G" or for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds. The term "putang
babae" means "a female prostitute," a term wholly inappropriate for children, who could
look it up in a dictionary and just get the literal meaning, missing the context within
which it was used. Petitioner further used the terms, "ang gumagana lang doon yung
ibaba," making reference to the female sexual organ and how a female prostitute uses it
in her trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to
why Sandoval is different from a female prostitute and the reasons for the dissimilarity.
And upon learning the meanings of the words used, young minds, without the guidance
of an adult, may, from their end, view this kind of indecent speech as obscene, if they
take these words literally and use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the opportunity to hear petitioner’s
words, when speaking of the average person in the test for obscenity, we are speaking
of the average child, not the average adult. The average child may not have the adult’s
grasp of figures of speech, and may lack the understanding that language may be
colorful, and words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such. In this
sense, we find petitioner’s utterances obscene and not entitled to protection under the
umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily accessible to
children. With respect to the young minds, said utterances are to be treated as
unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich
source of persuasive lessons. Foremost of these relates to indecent speech without
prurient appeal component coming under the category of protected speech depending
on the context within which it was made, irresistibly suggesting that, within a particular
context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.

In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue
by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica
Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as "patently offensive" and
"indecent" under a prohibiting law, though not necessarily obscene. FCC added,
however, that its declaratory order was issued in a "special factual context," referring, in
gist, to an afternoon radio broadcast when children were undoubtedly in the audience.
Acting on the question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the broadcast
medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the monologue
would be protected speech in other contexts, albeit it did not expound and identify a
compelling state interest in putting FCC’s content-based regulatory action under
scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of

protected speech that is content-based and that which is content-neutral. A content-
based restraint is aimed at the contents or idea of the expression, whereas a content-
neutral restraint intends to regulate the time, place, and manner of the expression under
well-defined standards tailored to serve a compelling state interest, without restraint on
the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the
backdrop of the following interplaying factors: First, the indecent speech was made via
television, a pervasive medium that, to borrow from Gonzales v. Kalaw
Katigbak,42 easily "reaches every home where there is a set [and where] [c]hildren will
likely be among the avid viewers of the programs therein shown"; second, the broadcast
was aired at the time of the day when there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his speech on a "G" or "for general
patronage" rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a
show for general patronage is "[s]uitable for all ages," meaning that the "material for
television x x x in the judgment of the BOARD, does not contain anything unsuitable for
children and minors, and may be viewed without adult guidance or supervision." The
words petitioner used were, by any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in petitioner’s utterances on a general-
patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, 43 false
or misleading advertisement,44 advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would
submit, exclusive or carved in stone. Without going into specifics, it may be stated
without fear of contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another
instance of unprotected speech, created by the necessity of protecting the welfare of
our children. As unprotected speech, petitioner’s utterances can be subjected to
restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be
grave and imminent.45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test
is uncalled for under the premises. The doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the printed or spoken words may not be
subject to prior restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the government has the
power to prohibit.46 Under the doctrine, freedom of speech and of press is susceptible of
restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in
the context of prosecutions for rebellion and other crimes involving the overthrow of
government.47 It was originally designed to determine the latitude which should be given
to speech that espouses anti-government action, or to have serious and substantial
deleterious consequences on the security and public order of the community. 48 The
clear and present danger rule has been applied to this jurisdiction. 49 As a standard of
limitation on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a
court to release a defendant from liability the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster. 50 As we observed in Eastern Broadcasting
Corporation, the clear and present danger test "does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums." 51

To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of "proximity and degree"
the Court, however, in several cases—Ayer Productions v. Capulong 52 and Gonzales v.
COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the
legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and assembly
in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,"54 then the "balancing of interests" test can be applied.

The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented. x x x We must, therefore, undertake the
"delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment
of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values

and individual interests competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has been called the "balancing-of-
interests" test which has found application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious
and detailed consideration of the interplay of interests observable in a given situation or
type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional

power restricting the individual’s freedom, and the social importance and value of the
freedom so restricted, "are to be judged in the concrete, not on the basis of
abstractions," a wide range of factors are necessarily relevant in ascertaining the point
or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not
the persons affected are few; (c) the value and importance of the public interest sought
to be secured by the legislation––the reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether the specific restriction decreed by
Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may
be achieved by some other measure less restrictive of the protected freedom. 55

This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory
that it is the court’s function in a case before it when it finds public interests served by
legislation, on the one hand, and the free expression clause affected by it, on the other,
to balance one against the other and arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom, then the court
will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve
appropriate and important interests.57 To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-
month suspension was slapped on him for breach of MTRCB rules. In this setting, the
assertion by petitioner of his enjoyment of his freedom of speech is ranged against the
duty of the government to protect and promote the development and welfare of the
youth.
After a careful examination of the factual milieu and the arguments raised by petitioner
in support of his claim to free speech, the Court rules that the government’s interest to
protect and promote the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioner’s prayer to continue as program
host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is
the freedom of speech or expression, for without the enjoyment of such right, a free,
stable, effective, and progressive democratic state would be difficult to attain. Arrayed
against the freedom of speech is the right of the youth to their moral, spiritual,
intellectual, and social being which the State is constitutionally tasked to promote and
protect. Moreover, the State is also mandated to recognize and support the vital role of
the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by
the Constitutional Commission, explained that the State shall "extend social protection
to minors against all forms of neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of discrimination." 58

Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent
minds. It has a compelling interest in helping parents, through regulatory mechanisms,
protect their children’s minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-building. 59 In the
same way, the State is mandated to support parents in the rearing of the youth for civic
efficiency and the development of moral character. 60

Petitioner’s offensive and obscene language uttered in a television broadcast, without

doubt, was easily accessible to the children. His statements could have exposed
children to a language that is unacceptable in everyday use. As such, the welfare of
children and the State’s mandate to protect and care for them, as parens
patriae,61 constitute a substantial and compelling government interest in regulating
petitioner’s utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or
prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read.

Although Cohen’s written message, ["Fuck the Draft"], might have been
incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s
vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the government’s interest in the "well-
being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend
to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set.
Children then will likely will be among the avid viewers of the programs therein shown.
As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. 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.62

The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the following considerations: (1) the use of television
with its unique accessibility to children, as a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan
program. And in agreeing with MTRCB, the court takes stock of and cites with approval
the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case

does not involve a two-way radio conversation between a cab driver and a dispatcher,
or a telecast of an Elizabethan comedy. We have not decided that an occasional
expletive in either setting would justify any sanction. x x x The [FFC’s] decision rested
entirely on a nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was emphasized by the
[FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be
merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’
We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise
of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers.
It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate
and prevent should such action served and further compelling state interests. One who
utters indecent, insulting, or offensive words on television when unsuspecting children
are in the audience is, in the graphic language of FCC, a "pig in the parlor." Public
interest would be served if the "pig" is reasonably restrained or even removed from the
"parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to prior
restraint are movies, television, and radio broadcast censorship in view of its access to
numerous people, including the young who must be insulated from the prejudicial
effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or license
before showing a motion picture or broadcasting a TV program. The Board can classify
movies and television programs and can cancel permits for exhibition of films or
television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it out
of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character." 63
Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what
movies are "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people," and what "tend to incite
subversion, insurrection, rebellion or sedition," or "tend to undermine the faith and
confidence of the people in their government and/or duly constituted authorities," etc.
Moreover, its decisions are executory unless stopped by a court. 64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the
power of review and prior approval of MTRCB extends to all television programs and is
valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are required to get a permit before
they air their television programs. Consequently, their right to enjoy their freedom of
speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became "a necessary evil" with the
government taking the role of assigning bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt each
other’s signals. In this scheme, station owners and broadcasters in effect waived their
right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraint—denial
of permit or subsequent punishment, like suspension or cancellation of permit, among
others.

The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under
its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i)
of PD 1986 and the remedies that may be availed of by the aggrieved private party
under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per
se for petitioner’s exercise of his freedom of speech via television, but for the indecent
contents of his utterances in a "G" rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station
owners, program producers, and hosts have impliedly accepted the power of MTRCB to
regulate the broadcast industry.
Neither can petitioner’s virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement and
administration of the law which it is tasked to implement. Viewed in its proper context,
the suspension sought to penalize past speech made on prime-time "G" rated TV
program; it does not bar future speech of petitioner in other television programs; it is a
permissible subsequent administrative sanction; it should not be confused with a prior
restraint on speech. While not on all fours, the Court, in MTRCB, 66 sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV
episode without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of
indecent or obscene speech in a "G" rated program is not acceptable. As made clear
in Eastern Broadcasting Corporation, "the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media."
The MTRCB, as a regulatory agency, must have the wherewithal to enforce its
mandate, which would not be effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must be
met with appropriate and proportional disciplinary action. The suspension of a violating
television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioner’s television program is
justified, and does not constitute prohibited prior restraint. It behooves the Court to
respond to the needs of the changing times, and craft jurisprudence to reflect these
times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the

very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has earlier adequately explained why
petitioner’s undue reliance on the religious freedom cannot lend justification, let alone
an exempting dimension to his licentious utterances in his program. The Court sees no
need to address anew the repetitive arguments on religious freedom. As earlier
discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in
no way a religious speech. Parenthetically, petitioner’s attempt to characterize his
speech as a legitimate defense of his religion fails miserably. He tries to place his words
in perspective, arguing evidently as an afterthought that this was his method of refuting
the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on
the night he uttered them in his television program, the word simply came out as
profane language, without any warning or guidance for undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB, and
that he was unable to demonstrate that he was unjustly discriminated against in the
MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as
PD 1986 does not provide for the range of imposable penalties that may be applied with
respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that

Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness of
the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it,
and what is the scope of his authority. For a complex economy, that may indeed be the
only way in which the legislative process can go forward. A distinction has rightfully
been made between delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done, and delegation
of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be
regarded as denying the legislature the necessary resources of flexibility and
practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel.
A standard thus defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. 67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s
protestation about undue delegation of legislative power for the sole reason that PD
1986 does not provide for a range of penalties for violation of the law is untenable. His
thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of
penalties for violation of the provisions of the decree, went beyond the terms of the law.
Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the
MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the
MTRCB, by express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall
be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k)
of the decree authorizing the MTRCB "to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]." As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power would
surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged,
and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular

power necessary for the exercise of the one or the performance of the other is also
conferred. x x x [W]hen the statute does not specify the particular method to be followed
or used by a government agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to carry out its function. 68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought to be
enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power "[to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x." And Chapter XIII, Sec. 1 of the
IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to

the immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing
Rules and Regulations governing motion pictures, television programs, and related
promotional materials shall be penalized with suspension or cancellation of permits
and/or licenses issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table of
Administrative Penalties attached without prejudice to the power of the Board to amend
it when the need arises. In the meantime the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB under the law or partake of the nature of
an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a guardian of the
public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The
MTRCB may evaluate motion pictures, television programs, and publicity materials
"applying contemporary Filipino cultural values as standard," and, from there, determine
whether these audio and video materials "are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it deems
proper. The lawmaking body cannot possibly provide for all the details in the
enforcement of a particular statute.69 The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers. 70 Administrative regulations or
"subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the
law."71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the
exercise of its statutory disciplinary functions, according it ample latitude in fixing, by
way of an appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the case may
be, would be consistent with its mandate to effectively and efficiently regulate the movie
and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere
in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend
the program host or even to prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the broadcast of such television
programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered
to be within the decree’s penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating the
statute and for whom the penalty is sought. Thus, the MTRCB’s decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order
issued pursuant to said decision must be modified. The suspension should cover only
the television program on which petitioner appeared and uttered the offensive and
obscene language, which sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in
which absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply
utter gutter profanity on television without adverse consequences, under the guise of
free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms
of speech and expression are not absolute freedoms. To say "any act that restrains
speech should be greeted with furrowed brows" is not to say that any act that restrains
or regulates speech or expression is per se invalid. This only recognizes the importance
of freedoms of speech and expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to
the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as
follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a

penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

G.R. No. 178552               October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the

South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY.
SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES,
AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog,

NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-
KMU), represented by its National President Joselito V. Ustarez and Secretary
General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN
RIGHTS, represented by its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO
GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL
GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his
capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL
OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents.

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

G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING

WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION
(GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY
OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN,
PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE
FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR.
BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN
MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA
PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE
LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF
FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP),
THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS,

represented herein by Dr. Edelina de la Paz, and representing the following
organizations: HUSTISYA, represented by Evangeline Hernandez and also on her
own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on
her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT
PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on
his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP),
represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH
PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF
FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP),
THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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

G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty.

Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL),
SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO
OSMEÑA III and WIGBERTO E. TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-
TERRORISM COUNCIL (ATC), Respondents.

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

G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST),

GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG
KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST,
PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST),
PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG),
SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF
FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA
MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT
UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN
(SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR
PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA,
JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE
BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF
FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP),
THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism,"
otherwise known as the Human Security Act of 2007, 1 signed into law on March 6,
2007.

Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos,
Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition
on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang
Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-
KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their
respective officers3 who are also bringing the action in their capacity as citizens, filed a
petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership
and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of
Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition
and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang
Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino
Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya
(PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for
Democracy (HEAD), and Agham, represented by their respective officers, 4 and joined
by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty.
Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua
and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R.
No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya,

Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church People’s Response (PCPR), which were represented by their
respective officers5 who are also bringing action on their own behalf, filed a petition for
certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters

and organizations mostly based in the Southern Tagalog Region, 7 and
individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and
prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the
BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism

Council9 composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson,
and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo
Puno, and Finance Secretary Margarito Teves as members. All the petitions, except
that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff
Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of
Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence
and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial

or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting

requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case. 10

In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires 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.11
Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule on
locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question on standing is
whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some direct injury as a result of
its enforcement, and not merely that it suffers thereby in some indefinite way. It must
show that it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that
(1) it has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist

fronts" by the government, especially the military; whereas individual petitioners
invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with

the requirement that petitioner has experienced or is in actual danger of suffering direct
and personal injury, cases involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy.
None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R.

No. 178890, allege that they have been subjected to "close security surveillance by
state security forces," their members followed by "suspicious persons" and "vehicles
with dark windshields," and their offices monitored by "men with military build." They
likewise claim that they have been branded as "enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,

PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No.
178581, would like the Court to take judicial notice of respondents’ alleged action of
tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription without following the
procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads
the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to be
within the limits of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence, it can be said
that judicial notice is limited to facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they
may be matters which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally understood that
they may be regarded as forming part of the common knowledge of every person. As
the common knowledge of man ranges far and wide, a wide variety of particular facts
have been judicially noticed as being matters of common knowledge. But a court cannot
take judicial notice of any fact which, in part, is dependent on the existence or non-
existence of a fact of which the court has no constructive knowledge. 16 (emphasis and
underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice.
Petitioners’ apprehension is insufficient to substantiate their plea. That no specific
charge or proscription under RA 9372 has been filed against them, three years after its
effectivity, belies any claim of imminence of their perceived threat emanating from the
so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result in
direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America17 (US) and the European Union18 (EU) have both classified the
CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes
note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and EU classification
of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there
is yet to be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA
9372 has been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely without any threat
of, much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda
Ilagan,20 urged the government to resume peace negotiations with the NDF by removing
the impediments thereto, one of which is the adoption of designation of the CPP and
NPA by the US and EU as foreign terrorist organizations. Considering the policy
statement of the Aquino Administration21 of resuming peace talks with the NDF, the
government is not imminently disposed to ask for the judicial proscription of the CPP-
NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.22 Of recent development is the filing of
the first case for proscription under Section 1723 of RA 9372 by the Department of
Justice before the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf
Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under
RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006
against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino
Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for
the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. 26
The dismissed rebellion charges, however, do not save the day for petitioners. For one,
those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by
this Court. For another, rebellion is defined and punished under the Revised Penal
Code. Prosecution for rebellion is not made more imminent by the enactment of RA
9372, nor does the enactment thereof make it easier to charge a person with rebellion,
its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years after
the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing. 27 The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single
arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of "political surveillance," the Court finds that she has not
shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who
cite their being respectively a human rights advocate and an oppositor to the passage of
RA 9372. Outside these gratuitous statements, no concrete injury to them has been
pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in
G.R. No. 178552 also conveniently state that the issues they raise are of transcendental
importance, "which must be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have been charged, or
may be charged. Mere invocation of human rights advocacy has nowhere been held
sufficient to clothe litigants with locus standi. Petitioners must show an actual, or
immediate danger of sustaining, direct injury as a result of the law’s enforcement. To
rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy
cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending or
taxing power of Congress,28 whereas citizen standing must rest on direct and personal
interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a

public right, do not establish locus standi. Evidence of a direct and personal interest is
key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not 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.30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate

or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. 32

Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more

emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable—definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal right,
on the one hand, and a denial thereof on the other hand; that is, it must concern a real
and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati

into a Highly Urbanized City was held to be premature as it was tacked on uncertain,
contingent events.34 Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely wheedles the Court to
rule on a hypothetical problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections36 for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission on
Elections,37 to rule on the religious freedom claim of the therein petitioners based merely
on a perceived potential conflict between the provisions of the Muslim Code and those
of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest suffices to provide a basis for mounting a
constitutional challenge. This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the issues. 38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds,
since plaintiffs faced a "credible threat of prosecution" and "should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief." 40 The
plaintiffs therein filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. §2339B (a) (1), 41 proscribing the provision of
material support to organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support for the humanitarian
and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the conduct or
activity that a petitioner seeks to do, as there would then be a justiciable controversy. 42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity
that they seek to do. No demonstrable threat has been established, much less a real
and existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged

as "communist fronts" in no way approximate a credible threat of prosecution. From
these allegations, the Court is being lured to render an advisory opinion, which is not its
function.43

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.44

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law may be
abused.45 Allegations of abuse must be anchored on real events before courts may step
in to settle actual controversies involving rights which are legally demandable and
enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein

certain rules of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism46 under RA 9372 in that terms like "widespread and extraordinary
fear and panic among the populace" and "coerce the government to give in to an
unlawful demand" are nebulous, leaving law enforcement agencies with no standard to
measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to
free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline

the schools of thought on whether the void-for-vagueness and overbreadth doctrines
are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez
v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section

549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly
broad. The Court stated that "the overbreadth and the vagueness doctrines have
special application only to free-speech cases," and are "not appropriate for testing the
validity of penal statutes."50 It added that, at any rate, the challenged provision, under
which the therein petitioner was charged, is not vague. 51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court

stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense53 under the Voter’s Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language. 54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V.
Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic
Act No. 7080) clear and free from ambiguity respecting the definition of the crime of
plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify a
facial review of its validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity." The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area
of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the established
rule is that "one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be unconstitutional." As has
been pointed out, "vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes found vague
as a matter of due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court review
the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete
factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed
out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last resort," and
is generally disfavored. In determining the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated in a case must be examined in the
light of the conduct with which the defendant is charged.56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-applied challenge against a penal
statute (under a claim of violation of due process of law) or a speech regulation (under a
claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate
on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible

standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees 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.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected. 59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.60

Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the "chilling effect" on protected speech, the exercise of which should not at all times be
abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful,
so long as it refrains from diminishing or dissuading the exercise of constitutionally
protected rights.63

The Court reiterated that there are "critical limitations by which a criminal statute may be
challenged" and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x
may not be allowed."64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the
State’s ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding that the
law is clear as applied to him.65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is

limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception
to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights
of third parties; and the court invalidates the entire statute  "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of
the overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad law’s "very existence may cause others not before the court
to refrain from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.66 (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,67 observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment, 68 and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if
ever, will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or speech-related conduct. Attacks on overly broad
statutes are justified by the "transcendent value to all society of constitutionally
protected expression."71
Since a penal statute may only be assailed for being vague as applied to
petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is
legally impermissible absent an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of
the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding,
however, that there was no basis to review the law "on its face and in its entirety." 72 It
stressed that "statutes found vague as a matter of due process typically are invalidated
only 'as applied' to a particular defendant."73

American jurisprudence74 instructs that "vagueness challenges that do not involve the

First Amendment must be examined in light of the specific facts of the case at hand and
not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among
the most important guarantees of liberty under law." 75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at least
three cases,76 the Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy
provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any
of the cited provisions of the Revised Penal Code, or under any of the enumerated
special penal laws; (2) the commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic among the populace; and (3)
the offender is actuated by the desire to coerce the government to give in to an unlawful
demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,

petitioners contend that the element of "unlawful demand" in the definition of
terrorism77 must necessarily be transmitted through some form of expression protected
by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying phrases
in the other elements of the crime, including the coercion of the government to accede
to an "unlawful demand." Given the presence of the first element, any attempt at
singling out or highlighting the communicative component of the prohibition cannot
recategorize the unprotected conduct into a protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly

focuses on just one particle of an element of the crime. Almost every commission of a
crime entails some mincing of words on the part of the offender like in declaring to
launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis
of race will require an employer to take down a sign reading "White Applicants Only"
hardly means that the law should be analyzed as one regulating speech rather than
conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct
alter neither the intent of the law to punish socially harmful conduct nor the essence of
the whole act as conduct and not speech. This holds true a fortiori in the present case
where the expression figures only as an inevitable incident of making the element of
coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely
because the  conduct was, in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it practically impossible ever
to enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society. 79 (italics and underscoring
supplied)

Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct. 80 Since speech is not involved here, the Court
cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court
in said cases, however, found no basis to review the assailed penal statute on its face
and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a "credible threat of prosecution" and "should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible

threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of "terrorism" is thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on a statute’s future effect
on hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

G.R. No. 205728               January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP

VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL
CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY,
ATTY. MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the

people and all government authority emanates from them." – Article II, Section 1,
Constitution

All governmental authority emanates from our people. No unreasonable restrictions of

the fundamental and preferred right to expression of the electorate during political
contests no matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It
is significant and of first impression. We are asked to decide whether the Commission
on Elections (COMELEC) has the competence to limit expressions made by the citizens
— who are not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for
preliminary injunction and temporary restraining order 1 under Rule 65 of the Rules of
Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials 2 dated
February 22, 2013 and letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six
feet (6') by ten feet (10') in size. They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or Republic Act No. 10354. The
second tarpaulin is the subject of the present case. 4 This tarpaulin contains the heading
"Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act No. 10354, otherwise
known as the RH Law.6 Those who voted for the passing of the law were classified by
petitioners as comprising "Team Patay," while those who voted against it form "Team
Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
  Party List Akbayan
  Party List Bayan Muna
  Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored
nor paid for by any candidate. Petitioners also conceded that the tarpaulin contains
names ofcandidates for the 2013 elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election
Officer of Bacolod City, issued a Notice to Remove Campaign Materials 8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two feet (2’) by three feet (3’). 9

On February 25, 2013, petitioners replied 10 requesting, among others, that (1) petitioner
Bishop be given a definite ruling by COMELEC Law Department regarding the tarpaulin;
and (2) pending this opinion and the availment of legal remedies, the tarpaulin be
allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter 12 ordering the
immediate removal of the tarpaulin; otherwise, it will be constrained to file an election
offense against petitioners. The letter of COMELEC Law Department was silenton the
remedies available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon,
had already given you notice on February 22, 2013 as regards the election propaganda
material posted on the church vicinity promoting for or against the candidates and party-
list groups with the following names and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec

Resolution No. 9615 promulgated on January 15, 2013 particularly on the size (even
with the subsequent division of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please order/cause the
immediate removal of said election propaganda material, otherwise, we shall be
constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on
Elections inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech,
petitioners initiated this case through this petition for certiorari and prohibition with
application for preliminary injunction and temporary restraining order. 14 They question
respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013.
They pray that: (1) the petition be given due course; (2) a temporary restraining order
(TRO) and/or a writ of preliminary injunction be issued restraining respondents from
further proceeding in enforcing their orders for the removal of the Team Patay tarpaulin;
and (3) after notice and hearing, a decision be rendered declaring the questioned orders
of respondents as unconstitutional and void, and permanently restraining respondents
from enforcing them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining
order enjoining respondents from enforcing the assailed notice and letter, and set oral
arguments on March 19, 2013.16

On March 13, 2013, respondents filed their comment 17 arguing that (1) a petition for
certiorari and prohibition under Rule 65 of the Rules of Court filed before this court is not
the proper remedy to question the notice and letter of respondents; and (2) the tarpaulin
is an election propaganda subject to regulation by COMELEC pursuant to its mandate
under Article IX-C, Section 4 of the Constitution. Hence, respondents claim that the
issuances ordering its removal for being oversized are valid and constitutional. 18

During the hearing held on March 19, 2013, the parties were directed to file their
respective memoranda within 10 days or by April 1, 2013, taking into consideration the
intervening holidays.19

The issues, which also served as guide for the oral arguments, are: 20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF

COURTS DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS

ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE
EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW THIS
COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE
"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING
THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED

SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE
AUTHORITY TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN

VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND
STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter
are not final orders, decisions, rulings, or judgments of the COMELEC En Banc issued
in the exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules of
Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the
ouster of jurisdiction.22 As a special civil action, there must also be a showing that there
be no plain, speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this
court, whose power to review is "limited only to final decisions, rulings and orders of the
COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and letter are reviewable
only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution 24 on
COMELEC’s power to decide all questions affecting elections. 25 Respondents invoke
the cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar
filed the election protest.32 At issue was the validity of the promulgation of a COMELEC
Division resolution.33 No motion for reconsideration was filed to raise this issue before
the COMELEC En Banc. This court declared that it did not have jurisdiction and
clarified:

We have interpreted [Section 7, Article IX-A of the Constitution] 34 to mean final orders,
rulings and decisionsof the COMELEC rendered in the exercise of its adjudicatory or
quasi-judicial powers." This decision must be a final decision or resolution of the
Comelec en banc, not of a division, certainly not an interlocutory order of a division.The
Supreme Court has no power to review viacertiorari, an interlocutory order or even a
final resolution of a Division of the Commission on Elections. 35 (Emphasis in the original,
citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest case,
involving the mayoralty elections in Pagsanghan, Samar. 36 This time, the case was
brought to this court because the COMELEC First Division issued a status quo ante
order against the Regional Trial Court executing its decision pending appeal. 37 This
court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction to review interlocutory orders of a COMELEC Division. 38 However,
consistent with ABS-CBN Broadcasting Corporation v. COMELEC, 39 it clarified the
exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a
motion for reconsideration] may be glossed over to prevent miscarriage of justice, when
the issue involves the principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy available. 40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in
electoral contests — despite not being reviewed by the COMELEC En Banc, if:
 1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder
issued by the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest
case involving candidates for the city council of Muntinlupa City. 41 Petitioners in Soriano,
Jr.filed before this court a petition for certiorari against an interlocutory order of the
COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division
dismissed the main election protest case.43 Sorianoapplied the general rule that only
final orders should be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN. 44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of

one of the mayoralty candidates of Meycauayan, Bulacan. 45 The COMELEC Second
Division ruled that petitioner could not qualify for the 2007 elections due to the findings
in an administrative case that he engaged in vote buying in the 1995 elections. 46 No
motion for reconsideration was filed before the COMELEC En Banc. This court,
however, took cognizance of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case

involving the mayoralty candidates of Taguig City. 48 Petitioner assailed a resolution of
the COMELEC denying her motion for reconsideration to dismiss the election protest
petition for lack of form and substance. 49 This court clarified the general rule and
refused to take cognizance of the review of the COMELEC order. While recognizing the
exceptions in ABS-CBN, this court ruled that these exceptions did not apply. 50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not
operate as precedents to oust this court from taking jurisdiction over this case. All these
cases cited involve election protests or disqualification cases filed by the losing
candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their
petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of
its adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on

speech and the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to

lack or excess of jurisdiction in issuing the notice 51 dated February 22,2013 and
letter52 dated February 27, 2013 ordering the removal of the tarpaulin. 53 It is their
position that these infringe on their fundamental right to freedom of expression and
violate the principle of separation of church and state and, thus, are unconstitutional. 54

The jurisdiction of this court over the subject matter is determined from the allegations in
the petition. Subject matter jurisdiction is defined as the authority "to hear and determine
cases of the general class to which the proceedings in question belong and is conferred
by the sovereign authority which organizes the court and defines its
powers."55 Definitely, the subject matter in this case is different from the cases cited by
respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions
imposed by COMELEC. Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with the sovereign right to change
the contours of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with which we
protect this kind of speech does not depend on our evaluation of the cogency of the
message. Neither do we assess whether we should protect speech based on the
motives of COMELEC. We evaluate restrictions on freedom of expression from their
effects. We protect both speech and medium because the quality of this freedom in
practice will define the quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable
of repetition. Under the conditions in which it was issued and in view of the novelty of
this case,it could result in a "chilling effect" that would affect other citizens who want
their voices heard on issues during the elections. Other citizens who wish to express
their views regarding the election and other related issues may choose not to, for fear of
reprisal or sanction by the COMELEC. Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural platform for raising grave abuse of
discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred
to this court’s expanded exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether ornot 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.56 (Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all
questions affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise
of jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice
and letter on free speech. This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this provision cannot be interpreted to
mean that COMELEC has the exclusive power to decide any and allquestions that arise
during elections. COMELEC’s constitutional competencies during elections should not
operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for
certiorari and prohibition. This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse

of discretion. Thus, the constitutionality of the notice and letter coming from COMELEC
is within this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of
discretion or any act tainted with unconstitutionality on the part of any government
branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is this
court’s constitutional mandate to protect the people against government’s infringement
of their fundamental rights. This constitutional mandate out weighs the jurisdiction
vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of
courts in directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition. 57 They add
that observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog
v. Melicor.58 While respondents claim that while there are exceptions to the general rule
on hierarchy of courts, none of these are present in this case. 59

On the other hand, petitioners cite Fortich v. Corona 60 on this court’s discretionary
power to take cognizance of a petition filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the issues raised. . . ." 61 Petitioners submit
that there are "exceptional and compelling reasons to justify a direct resort [with] this
Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the

hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now
affirms that the policy is not to be ignored without serious consequences. The strictness
of the policy is designed to shield the Court from having to deal with causes that are
also well within the competence of the lower courts, and thus leave time to the Court to
deal with the more fundamental and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy. 64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs
of certiorari, prohibition, and mandamus, citing Vergara v. Suelto: 65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily

perform the functions assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the task of dealing with causes in
the first instance. Its original jurisdiction to issue the so-called extraordinary writs should
be exercised only where absolutely necessary or where serious and important reasons
exist therefore. Hence, that jurisdiction should generally be exercised relative to actions
or proceedings before the Court of Appeals, or before constitutional or other tribunals,
bodies or agencies whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writ’s procurement must be presented. This is and
should continue to be the policy in this regard, a policy that courts and lawyers must
strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court
to ensure that every level of the judiciary performs its designated roles in an effective
and efficient manner. Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent to determine issues
of law which may include the validity of an ordinance, statute, or even an executive
issuance in relation to the Constitution. 67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their writs generally reach
within those territorial boundaries. Necessarily, they mostly perform the all-important
task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which
properly present the ‘actual case’ that makes ripe a determination of the constitutionality
of such action. The consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not be practical
considering their decisions could still be appealed before the higher courts, such as the
Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature. This
nature ensures more standpoints in the review of the actions of the trial court. But the
Court of Appeals also has original jurisdiction over most special civil actions. Unlike the
trial courts, its writs can have a nationwide scope. It is competent to determine facts
and, ideally, should act on constitutional issues thatmay not necessarily be novel unless
there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further
reiterating — in the light of new circumstances or in the light of some confusions of
bench or bar — existing precedents. Rather than a court of first instance or as a
repetition of the actions of the Court of Appeals, this court promulgates these doctrinal
devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to
protect constitutional rights when these become exigent should not be emasculated by
the doctrine in respect of the hierarchy of courts. That has never been the purpose of
such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule. 68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it for exceptionally compelling reasons 69 or if
warranted by the nature of the issues clearly and specifically raised in the petition." 70 As
correctly pointed out by petitioners,71 we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct resort to
this court includes availing of the remedies of certiorari and prohibition toassail the
constitutionality of actions of both legislative and executive branches of the
government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right
to freedom of expression in the present case, but also of others in future similar cases.
The case before this court involves an active effort on the part of the electorate to
reform the political landscape. This has become a rare occasion when private citizens
actively engage the public in political discourse. To quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at
better social judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that was
awakened and invigorated by the idea of new society in which man's mind was free, his
fate determined by his own powers of reason, and his prospects of creating a rational
and enlightened civilization virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason
and initiative, will allow man to realize his full potentialities.It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant. 73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in

furtherance of political decision-making is recognized. It deserves the highest protection
the courts may provide, as public participation in nation-building isa fundamental
principle in our Constitution. As such, their right to engage in free expression of ideas
must be given immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance. 74 In

these cases, the imminence and clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of procedural niceties
when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of
speech and freedom of expression which warrants invocation of relief from this court.
The principles laid down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to suffrage not only
includes the right to vote for one’s chosen candidate, but also the right to vocalize that
choice to the public in general, in the hope of influencing their votes. It may be said that
in an election year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore, allows
for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first
impression, no jurisprudence yet exists that will guide the lower courts on this matter. In
Government of the United States v. Purganan,76 this court took cognizance of the case
as a matter of first impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the
issue of whether the right of suffrage includes the right of freedom of expression. This is
a question which this court has yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v.
Lim,78 this court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the
higher judgmentof this Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion. 79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule
with finality on whether COMELEC committed grave abuse of discretion or performed
acts contrary to the Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed
during the 2013 election period. Although the elections have already been concluded,
future cases may be filed that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is
easy to realize the chaos that would ensue if the Court of First Instance ofeach and
every province were [to] arrogate itself the power to disregard, suspend, or contradict
any order of the Commission on Elections: that constitutional body would be speedily
reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing
remedies with the lower courts, any ruling on their part would not have been binding for
other citizens whom respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties imposed upon
COMELEC. Hence, a ruling by this court would be in the best interest of respondents, in
order that their actions may be guided accordingly in the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate
remedy in the ordinary course of law that could free them from the injurious effects of
respondents’ acts in violation of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient ground to allow direct resort to
this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the
orders complained of were found to be patent nullities, or the appeal was consideredas
clearly an inappropriate remedy."82 In the past, questions similar to these which this
court ruled on immediately despite the doctrine of hierarchy of courts included citizens’
right to bear arms,83 government contracts involving modernization of voters’ registration
lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action
to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to
justify a direct resort to this court. While generally, the hierarchy of courts is respected,
the present case falls under the recognized exceptions and, as such, may be resolved
by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political
question, hence not within the ambit of this court’s power of review. They cite Justice
Vitug’s separate opinion in Osmeña v. COMELEC 86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states
that the "State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law." I see neither Article IX (C)(4) nor
Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of
general application, must yield to the specific demands of the Constitution. The freedom
of expression concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like all fundamental rights, it is not without
limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that all candidates are given an
equal chance to media coverage and thereby be equally perceived as giving real life to
the candidates’ right of free expression rather than being viewed as an undue restriction
of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court to pass
upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this
case.

The present petition does not involve a dispute between the rich and poor, or the
powerful and weak, on their equal opportunities for media coverage of candidates and
their right to freedom of expression. This case concerns the right of petitioners, who are
non-candidates, to post the tarpaulin in their private property, asan exercise of their right
of free expression. Despite the invocation of the political question doctrine by
respondents, this court is not proscribed from deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what

constitutes a political question:

What is generally meant, when it is said that a question is political, and not judicial, is
that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or
particular officer of the government, withdiscretionary power to act. 89 (Emphasis
omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the
law should be. In political forums, particularly the legislature, the creation of the textof
the law is based on a general discussion of factual circumstances, broadly construed in
order to allow for general application by the executive branch. Thus, the creation of the
law is not limited by particular and specific facts that affect the rights of certain
individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts’ understanding of the law.

The complementary nature of the political and judicial branches of government is

essential in order to ensure that the rights of the general public are upheld at all times.
In order to preserve this balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to the other. Courts
cannot rush to invalidate a law or rule. Prudence dictates that we are careful not to veto
political acts unless we can craft doctrine narrowly tailored to the circumstances of the
case.

The case before this court does not call for the exercise of prudence or modesty. There
is no political question. It can be acted upon by this court through the expanded
jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence

of different agencies and departments of the executive or those of the legislature. The
political question doctrine is used as a defense when the petition asks this court to
nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation,
presumptively, this court should act with deference. It will decline to void an act unless
the exercise of that power was so capricious and arbitrary so as to amount to grave
abuse of discretion.

The concept of a political question, however, never precludes judicial review when the
act of a constitutional organ infringes upon a fundamental individual or collective right.
Even assuming arguendo that the COMELEC did have the discretion to choose the
manner of regulation of the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If grave abuse
is not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to
decide.91

How this court has chosen to address the political question doctrine has undergone an
evolution since the timethat it had been first invoked in Marcos v. Manglapus.
Increasingly, this court has taken the historical and social context of the case and the
relevance of pronouncements of carefully and narrowly tailored constitutional doctrines.
This trend was followed in cases such as Daza v. Singson 92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of
the 1987 Constitution involving the removal of petitioners from the Commission on
Appointments. In times past, this would have involved a quint essentially political
question as it related to the dominance of political parties in Congress. However, in
these cases, this court exercised its power of judicial review noting that the requirement
of interpreting the constitutional provision involved the legality and not the wisdom of a
manner by which a constitutional duty or power was exercised. This approach was
again reiterated in Defensor Santiago v. Guingona, Jr. 94
In Integrated Bar of the Philippines v. Zamora, 95 this court declared again that the
possible existence ofa political question did not bar an examination of whether the
exercise of discretion was done with grave abuse of discretion. In that case, this court
ruled on the question of whether there was grave abuse of discretion in the President’s
use of his power to call out the armed forces to prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former
President resigned was not a political question even if the consequences would be to
ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use
the resolution of constitutional issues as leverage. But the expanded jurisdiction of this
court now mandates a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In
Llamas v. Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a settled
rule that when the issue involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the Constitution, We will not
decline to exercise our power of judicial review. And such review does not constitute a
modification or correction of the act of the President, nor does it constitute interference
with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET. 99 In this case, the House of
Representatives arguedthat the question of the validity of the second impeachment
complaint that was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice Reynato Puno elaborated
on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in
light of the new Constitution which expanded the definition of judicial power as including
"the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not 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." As well observed by retired Justice
Isagani Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments
including the President and the Congress, in the exercise of their discretionary
powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political question, as
applied in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes,
held: The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court,under previous
constitutions, would have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this
Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in appropriate cases."
(Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and
non-justiciable question lies in the answer to the question of whether there are
constitutionally imposed limits on powers or functions conferred upon political bodies. If
there are, then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits. 101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are
no constitutionally imposed limits on powers or functions conferred upon political
bodies. Hence, the existence of constitutionally imposed limits justifies subjecting the
official actions of the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.

I.E
Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative

remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65
that "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law."103 They add that the proper venue to assail the validity of the assailed
issuances was in the course of an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed against petitioners for posting
the tarpaulin, they claim that petitioners should resort to the remedies prescribed in Rule
34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the

controversy is already ripe for adjudication. Ripeness is the "prerequisite that something
had by then been accomplished or performed by either branch [or in this case, organ of
government] before a court may come into the picture." 106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter
threatening the filing of the election offense against petitioners is already an actionable
infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC

suggested in their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a
hierarchy of protected expressions, political expression would occupy the highest rank,
and among different kinds of political expression, the subject of fair and honest elections
would be at the top."108 Sovereignty resides in the people.109 Political speech is a direct
exercise of the sovereignty. The principle of exhaustion of administrative remedies
yields in order to protect this fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable,

the current controversy is within the exceptions to the principle. In Chua v. Ang, 110 this
court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with
and judicial action may be validly resorted to immediately: (a) when there is a violation
of due process; (b) when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess of jurisdiction; (d)
when there is estoppel on the part ofthe administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent is a department secretary whose acts
as analter ego of the President bear the implied and assumed approval of the latter; (g)
when to require exhaustion of administrative remedies would be unreasonable; (h)
when it would amount to a nullification of a claim; (i) when the subject matter is a private
land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First,
petitioners allegethat the assailed issuances violated their right to freedom of
expression and the principle of separation of church and state. This is a purely legal
question. Second, the circumstances of the present case indicate the urgency of judicial
intervention considering the issue then on the RH Law as well as the upcoming
elections. Thus, to require the exhaustion of administrative remedies in this case would
be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the
rules or to except a case from their operation when compelling reasons so warrant, or
whenthe purpose of justice requires it, [and when] [w]hat constitutes [as] good and
sufficient cause that will merit suspension of the rules is discretionary upon the
court".112 Certainly, this case of first impression where COMELEC has threatenedto
prosecute private parties who seek to participate in the elections by calling attention to
issues they want debated by the publicin the manner they feel would be effective is one
of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that
they had the power to regulate the tarpaulin.113 However, all of these provisions pertain
to candidates and political parties. Petitioners are not candidates. Neither do theybelong
to any political party. COMELEC does not have the authority to regulate the enjoyment
of the preferred right to freedom of expression exercised by a non-candidate in this
case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 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 therefor, for public
information campaigns and forums among candidates in connection with the objective
of holding free, orderly, honest, peaceful, and credible elections. 114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the

plebiscite for the creation of the Cordillera Autonomous Region. 116 Columnist Pablito V.
Sanidad questioned the provision prohibiting journalists from covering plebiscite issues
on the day before and on plebiscite day. 117 Sanidad argued that the prohibition was a
violation of the "constitutional guarantees of the freedom of expression and of the press.
. . ."118 We held that 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." 119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither
the franchise holders nor the candidates[,]" 120 thus, their right to expression during this
period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor
candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows: 122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidates. (Emphasis supplied) Based on the enumeration made on actsthat may be
penalized, it will be inferred that this provision only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC.

This was followed bythe assailed letter regarding the "election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list
groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions
"parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties
and party-list groups to erect common poster areas for their candidates in not more than
ten (10) public places such as plazas, markets, barangay centers and the like, wherein
candidates can post, display or exhibit election propaganda: Provided, That the size
ofthe poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of which shall not
exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any
lawful campaign material in:

a. Authorized common poster areasin public places subject to the requirements

and/or limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common
poster areas and those enumerated under Section 7 (g) of these Rules and the like is
prohibited. Persons posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the candidates and
parties caused the posting of campaign materials outside the common poster areas if
they do not remove the same within three (3) days from notice which shall be issued by
the Election Officer of the city or municipality where the unlawful election propaganda
are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election
Officeror other officials of the COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The

above provisions regulating the posting of campaign materials only apply to candidates
and political parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that
these are "allowed for all registered political parties, national, regional, sectoral parties
or organizations participating under the party-list elections and for all bona fide
candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . ." Section 6 of COMELEC
Resolution No. 9615 provides for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and in coordination with candidates
and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and
political parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party. 125 There was no
allegation that petitioners coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the Constitution, to some extent,
set a limit on the right to free speech during election period. 127

National Press Club involved the prohibition on the sale and donation of space and time
for political advertisements, limiting political advertisements to COMELEC-designated
space and time. This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the prohibition on the sale
and donation of space and time for political advertisements is tantamount to censorship,
which necessarily infringes on the freedom of speech of the candidates. 128

This court upheld the constitutionality of the COMELEC prohibition in National Press
Club. However, this case does not apply as most of the petitioners were electoral
candidates, unlike petitioners in the instant case. Moreover, the subject matter of
National Press Club, Section 11(b) of Republic Act No. 6646, 129 only refers to a
particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the
right of reporters or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary on the issues
involving the plebiscite, National Press Clubdoes not involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates
for the 2013 national elections because of the COMELEC notice and letter. It was not
merelya regulation on the campaigns of candidates vying for public office. Thus,
National Press Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed
to promote the election or defeat of a particular candidate or candidates to a public
office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of

persons for the purpose of soliciting votes and/or undertaking any campaign for
or against a candidate;
 (2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for

or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support

or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a

candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances
of aspirants for nomination for candidacy to a public office by a political party,
aggroupment, or coalition of parties shall not be considered as election campaign or
partisan election activity. Public expressions or opinions or discussions of probable
issues in a forthcoming electionor on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates
and political parties themselves. The focus of the definition is that the act must be
"designed to promote the election or defeat of a particular candidate or candidates to a
public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a
statement of either appreciation or criticism on votes made in the passing of the RH law.
Thus, petitioners invoke their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin
violate their fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda
subject to their regulation pursuant to their mandate under Article IX-C, Section 4 of the
Constitution. Thus, the assailed notice and letter ordering itsremoval for being oversized
are valid and constitutional.131

II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of the
Constitution even to governmental acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the

Revised Ordinances of 1927 of Manila for the public meeting and assembly organized
by petitioner Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets
and public places for purposes such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the Mayor’s refusal to issue a
permit for the holding of petitioner’s public meeting. 136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to peaceful assembly and to
petition for redress of grievances, albeit not absolute, 137 and the petition for mandamus
to compel respondent Mayor to issue the permit was granted. 138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit surveys. 139 The right to freedom
of expression was similarly upheld in this case and, consequently, the assailed
resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition
against the abridgment of speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech must be weighed against a
compelling state interest clearly allowed in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in
addition to the freedom of speech and of the press provided in the US Constitution. The
word "expression" was added in the 1987 Constitution by Commissioner Brocka for
having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9,
page 2, line 29, it says: "No law shall be passed abridging the freedom of speech." I
would like to recommend to the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it would refer to means of
expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the
freedom of speech, expression or of the press . . . ." 141 Speech may be said to be
inextricably linked to freedom itself as "[t]he right to think is the beginning of freedom,
and speech must be protected from the government because speech is the beginning of
thought."142

II.B.2

Communication is an essential outcome of protected speech. 143 Communication exists

when "(1) a speaker, seeking to signal others, uses conventional actions because he
orshe reasonably believes that such actions will be taken by the audience in the manner
intended; and (2) the audience so takes the actions." 144 "[I]n communicative action[,] the
hearer may respond to the claims by . . . either accepting the speech act’s claims or
opposing them with criticism or requests for justification." 145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech

sometimes referred to as ‘symbolic speech[,]’" 146 such that "‘when ‘speech’ and
‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of
expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner
of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu, 148 students who were

members of the religious sect Jehovah’s Witnesses were to be expelled from school for
refusing to salute the flag, sing the national anthem, and recite the patriotic pledge. 149 In
his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of
communication and a valid form of expression.150 He adds that freedom of speech
includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a
symbolic manner of communication that conveys its messageas clearly as the written or
spoken word. As a valid form of expression, it cannot be compelled any more than it can
be prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis case. The
conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than
verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the

classification of the motion picture "Kapit sa Patalim" as "For Adults Only." They
contend that the classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the communication of ideas and the
expression of the artistic impulse."154 It adds that "every writer,actor, or producer, no
matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity
appears to be unduly restrictive."156 However, the petition was dismissed solely on the
ground that there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms
part of the expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts
which make it easier to view its messages from greater distances. Furthermore, a larger
tarpaulin makes it easier for passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside moving vehicles have lesser
time to view the content of a tarpaulin. The larger the fonts and images, the greater the
probability that it will catch their attention and, thus, the greater the possibility that they
will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the
reader. From an ordinary person’s perspective, those who post their messages in larger
fonts care more about their message than those who carry their messages in smaller
media. The perceived importance given by the speakers, in this case petitioners, to their
cause is also part of the message. The effectivity of communication sometimes relies on
the emphasis put by the speakers and onthe credibility of the speakers themselves.
Certainly, larger segments of the public may tend to be more convinced of the point
made by authoritative figures when they make the effort to emphasize their messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate
to more opportunities to amplify, explain, and argue points which the speakers might
want to communicate. Rather than simply placing the names and images of political
candidates and an expression of support, larger spaces can allow for brief but
memorable presentations of the candidates’ platforms for governance. Larger spaces
allow for more precise inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in
our government.

These points become more salient when it is the electorate, not the candidates or the
political parties, that speaks. Too often, the terms of public discussion during elections
are framed and kept hostage by brief and catchy but meaningless sound bites extolling
the character of the candidate. Worse, elections sideline political arguments and
privilege the endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the electorate, the
latter have the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives to avoid
difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place. 158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect
the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the
right to criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial,

open, [and] ethical dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it definitely "includes [a] collective
decision making with the participation of all who will beaffected by the decision." 160 It
anchors on the principle that the cornerstone of every democracy is that sovereignty
resides in the people.161 To ensure order in running the state’s affairs, sovereign powers
were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy
may evolve to the right of the people to make government accountable. Necessarily,
this includes the right of the people to criticize acts made pursuant to governmental
functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political
discontent, should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies." 162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of
good government demand a full discussion of public affairs." 163 This court has, thus,
adopted the principle that "debate on public issues should be uninhibited, robust,and
wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."164

Second, free speech should be encouraged under the concept of a market place of
ideas. This theory was articulated by Justice Holmes in that "the ultimate good desired
is better reached by [the] free trade in ideas:" 165

When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas - that the best test of truth
is the power of the thought to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely can be carried out. 166

The way it works, the exposure to the ideas of others allows one to "consider, test, and
develop their own conclusions."167 A free, open, and dynamic market place of ideas is
constantly shaping new ones. This promotes both stability and change where recurring
points may crystallize and weak ones may develop. Of course, free speech is more than
the right to approve existing political beliefs and economic arrangements as it includes,
"[t]o paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than
for the thought that agrees with us."168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger." 169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a
means of assuring individual self-fulfillment," 170 among others. In Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills Co., Inc, 171 this court
discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment.Thru these freedoms the citizens can participate not merely
in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees. 172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations
perform [an] important democratic role [in providing] forums for the development of civil
skills, for deliberation, and for the formation of identity and community spirit[,] [and] are
largely immune from [any] governmental interference." 173 They also "provide a buffer
between individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential source of
opposition to the state."174 Free speech must be protected as the vehicle to find those
who have similar and shared values and ideals, to join together and forward common
goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and
minorities against majoritarian abuses perpetrated through [the] framework [of
democratic governance]."175 Federalist framers led by James Madison were concerned
about two potentially vulnerable groups: "the citizenry at large - majorities - who might
be tyrannized or plundered by despotic federal officials" 176 and the minorities who may
be oppressed by "dominant factions of the electorate [that] capture [the] government for
their own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its rulers, but to guard
one part of the society against the injustice of the other part." 178 We should strive to
ensure that free speech is protected especially in light of any potential oppression
against those who find themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory. 179 This provides
that "nonviolent manifestations of dissent reduce the likelihood of violence[.]" 180 "[A] dam
about to burst . . . resulting in the ‘banking up of a menacing flood of sullen anger
behind the walls of restriction’"181 has been used to describe the effect of repressing
nonviolent outlets.182 In order to avoid this situation and prevent people from resorting to
violence, there is a need for peaceful methods in making passionate dissent. This
includes "free expression and political participation" 183 in that they can "vote for
candidates who share their views, petition their legislatures to [make or] change laws, . .
. distribute literature alerting other citizens of their concerns[,]" 184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a peaceful
means of achieving one’s goal, considering the possibility that repression of nonviolent
dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of

protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners’ way of endorsing candidates who voted against the RH Law and rejecting
those who voted for it.186 As such, it is subject to regulation by COMELEC under its
constitutional mandate.187 Election propaganda is defined under Section 1(4) of
COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .

....

4. The term "political advertisement" or "election propaganda" refers to any matter

broadcasted, published, printed, displayed or exhibited, in any medium, which contain
the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to promote or oppose,
directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms
of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration, or otherwise capable of
pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their
opinions, views and beliefs about issues and candidates." 188 They argue that the
tarpaulin was their statement of approval and appreciation of the named public officials’
act of voting against the RH Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against the RH Law," 190 which was not
paid for by any candidate or political party. 191 Thus, "the questioned orders which . . .
effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our
scheme of constitutional values."193 These rights enjoy precedence and primacy.194 In
Philippine Blooming Mills, this court discussed the preferred position occupied by
freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, ofthe influential and
powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is
the dissemination of information to make more meaningful the equally vital right of
suffrage."196 A similar idea appeared in our jurisprudence as early as 1969, which was
Justice Barredo’s concurring and dissenting opinion in Gonzales v. COMELEC: 197

I like to reiterate over and over, for it seems this is the fundamental point others miss,
that genuine democracy thrives only where the power and right of the people toelect the
men to whom they would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government authority
emanates from them" (Section 1, Article II). Translating this declaration into actuality,
the Philippines is a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in office by their votes.
And in it is on this cornerstone that I hold it tobe self-evident that when the freedoms of
speech, press and peaceful assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right of the qualified citizen to
vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer
incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this
way that he can rightfully gain the confidence of the people. I have no patience for those
who would regard public dissection of the establishment as an attribute to be indulged
by the people only at certain periods of time. I consider the freedoms of speech, press
and peaceful assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be properly
enjoyed.It stands to reason therefore, that suffrage itself would be next to useless if
these liberties cannot be untrammelled [sic] whether as to degree or time. 198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that
some types of speech may be subject to regulation:

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. 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. Distinctionshave therefore been made in the
treatment, analysis, and evaluation ofthe permissible scope of restrictions on various
categories of speech. 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.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to

speech "both intended and received as a contribution to public deliberation about some
issue,"200 "foster[ing] informed and civicminded deliberation." 201 On the other hand,
commercial speech has been defined as speech that does "no more than propose a
commercial transaction."202 The expression resulting from the content of the tarpaulin is,
however, definitely political speech. In Justice Brion’s dissenting opinion, he discussed
that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it subject of
the regulations in RA 9006 and Comelec Resolution No. 9615." 203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live election one hence, Team
Buhay and Team Patay and the plea to support one and oppose the other." 204

While the tarpaulin may influence the success or failure of the named candidates and
political parties, this does not necessarily mean it is election propaganda. The tarpaulin
was not paid for or posted "in return for consideration" by any candidate, political party,
or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules
and regulations implementing Republic Act No. 9006 as an aid to interpret the law
insofar as the facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter

broadcasted, published, printed, displayed or exhibited, in any medium, which contain
the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to promote or oppose,
directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms
of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration, or otherwise capable of
pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while
sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed
to promote the election or defeat of a particular candidate or candidates to a public
office, and shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not
be considered acts of election campaigning or partisan politicalactivity unless expressed
by government officials in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and
parameters should be deemed narrowly tailored only in relation to the facts and issues
in this case. It also appears that such wording in COMELEC Resolution No. 9615 does
not similarly appear in Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full
discussion of public affairs. We acknowledged that free speech includes the right to
criticize the conduct of public men:

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 official dom. 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. 206

Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions. 207 In the 1951 case of
Espuelas v. People,208 this court noted every citizen’s privilege to criticize his or her
government, provided it is "specific and therefore constructive, reasoned or tempered,
and not a contemptuous condemnation of the entire government set-up." 209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law
provision "penaliz[ing] the anonymous criticism of a candidate by means of posters or
circulars."211 This court explained that it is the poster’s anonymous character that is
being penalized.212 The ponente adds that he would "dislike very muchto see this
decision made the vehicle for the suppression of public opinion." 213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent
their views. According to this court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is to ensurea true ferment of
ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their
government contributes to every society’s goal for development. It puts forward matters
that may be changed for the better and ideas that may be deliberated on to attain that
purpose. Necessarily, it also makes the government accountable for acts that violate
constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which
prohibits mass media from selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216 This court mentioned how
"discussion of public issues and debate on the qualifications of candidates in an election
are essential to the proper functioning of the government established by our
Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the
context of elections when the free exercise thereof informs the people what the issues
are, and who are supporting what issues." 218 At the heart of democracy is every
advocate’s right to make known what the people need to know, 219 while the meaningful
exercise of one’s right of suffrage includes the right of every voter to know what they
need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on

public issues, and the freedom of expression especially in relation to information that
ensures the meaningful exercise of the right of suffrage:

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. 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. 221 (Emphasis supplied, citations
omitted)

Speech with political consequences isat the core of the freedom of expression and must
be protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all
other rights and even government protection of state interest must bow." 222
The right to freedom of expression isindeed not absolute. Even some forms of protected
speech are still subjectto some restrictions. The degree of restriction may depend on
whether the regulation is content-based or content-neutral. 223 Content-based regulations
can either be based on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda. 224

On the other hand, petitioners argue that the present size regulation is content-based as
it applies only to political speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a
mere time, place, and manner regulation, it’s still unconstitutional for lack of a clear and
reasonable nexus with a constitutionally sanctioned objective." 226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared
with other forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the

questioned order applies only to posters and tarpaulins that may affect the elections
because they deliver opinions that shape both their choices. It does not cover, for
instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-
candidates will be adjudged as "election paraphernalia." There are no existing bright
lines to categorize speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to raise public issues that
should be tackled by the candidates as what has happened in this case. COMELEC’s
discretion to limit speech in this case is fundamentally unbridled.

Size limitations during elections hit ata core part of expression. The content of the
tarpaulin is not easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure. 228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is

measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive,
‘extremely serious and the degree of imminence extremely high.’" 230 "Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional
muster, with the government having the burden of overcoming the presumed
unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of expression. There is no
reason for the state to minimize the right of non-candidate petitioners to post the
tarpaulin in their private property. The size of the tarpaulin does not affect anyone else’s
constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter

of the utterance or speech."232 In contrast, content-neutral regulation includes controls
merely on the incidents of the speech such as time, place, or manner of the speech. 233

This court has attempted to define "content-neutral" restraints starting with the 1948
case of Primicias v. Fugoso.234 The ordinance in this case was construed to grant the
Mayor discretion only to determine the public places that may be used for the
procession ormeeting, but not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free speech and peaceful assembly
are "not absolute for it may be so regulated that it shall not beinjurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the community or
society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission

resolution that prohibited the passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police power in that the assailed rules
carry outthe legislative policy that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and convenience of the public." 239

As early as 1907, United States v. Apurado240 recognized 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. . . ."241 It is with this backdrop that the state is justified in imposing
restrictions on incidental matters as time, place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as
regards the date, public place, and time of the assembly. 242 This would afford the public
official time to inform applicants if there would be valid objections, provided that the
clear and present danger test is the standard used for his decision and the applicants
are given the opportunity to be heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-
neutral regulation. In the 2006 case of Bayan v. Ermita, 244 this court discussed how
Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their time,
place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed grave abuse of discretion when he
modified the rally permit by changing the venue from Mendiola Bridge to Plaza Miranda
without first affording petitioners the opportunity to be heard. 247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content
is not easily divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size
limit for tarpaulins are content-neutral regulations as these "restrict the mannerby which
speech is relayed but not the content of what is conveyed." 248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will
not pass the three requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its validity," 250 and it is subject
only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several
cases.252 A content-neutral 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 incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the furtherance of that interest. 253

On the first requisite, it is not within the constitutional powers of the COMELEC to
regulate the tarpaulin. As discussed earlier, this is protected speech by petitioners who
are non-candidates. On the second requirement, not only must the governmental
interest be important or substantial, it must also be compelling as to justify the
restrictions made.

Compelling governmental interest would include constitutionally declared principles. We

have held, for example, that "the welfare of children and the State’s mandate to protect
and care for them, as parens patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV broadcast." 255

Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free,
orderly, honest, peaceful, and credible election. 256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among candidates, as
allowing posters with different sizes gives candidates and their supporters the incentive
to post larger posters[,] [and] [t]his places candidates with more money and/or with
deep-pocket supporters at an undue advantage against candidates with more humble
financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of
[a private citizen] to freely express his choice and exercise his right of free speech." 258 In
any case, faced with both rights to freedom of speech and equality, a prudent course
would be to "try to resolve the tension in a way that protects the right of participation." 259

Second, the pertinent election lawsrelated to private property only require that the
private property owner’s consent be obtained when posting election propaganda in the
property.260 This is consistent with the fundamental right against deprivation of property
without due process of law.261 The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus, this regulation does not
apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective

measures to minimize election spending. Specifically, Article IX-C, Section 2(7)
provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidates. (Emphasis supplied) This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by
three feet (3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This
resolution implements the Fair Election Act that provides for the same size limitation. 263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of
the State in guaranteeing freedom of expression, any financial considerations behind
the regulation are of marginal significance." 264 In fact, speech with political
consequences, as in this case, should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective of minimizing election
spending considering there is no limit on the number of tarpaulins that may be posted. 265

The third requisite is likewise lacking. We look not only at the legislative intent or motive
in imposing the restriction, but more so at the effects of such restriction, if implemented.
The restriction must not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting
the maximum sizeof the tarpaulin would render ineffective petitioners’ message and
violate their right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be encouraged,
more so when exercised to make more meaningful the equally important right to
suffrage.

The restriction in the present case does not pass even the lower test of intermediate
scrutiny for content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that
this will cause a "chilling effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of
Marshall McLuhan, "the medium is the message." 266 McLuhan’s colleague and mentor
Harold Innis has earlier asserted that "the materials on which words were written down
have often counted for more than the words themselves." 267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for
the endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in
the form of tarpaulins, posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate or political party. This skirts
the constitutional value that provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the
situation that confronts us. In such cases, it will simply be a matter for investigation and
proof of fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any

political candidate should not be held hostage by the possibility of abuse by those
seeking to be elected. It is true that there can be underhanded, covert, or illicit dealings
so as to hide the candidate’s real levels of expenditures. However, labelling all
expressions of private parties that tend to have an effect on the debate in the elections
as election paraphernalia would be too broad a remedy that can stifle genuine speech
like in this case. Instead, to address this evil, better and more effective enforcement will
be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others
will spend their own resources in order to lend support for the campaigns. This may be
without agreement between the speaker and the candidate or his or her political party.
In lieu of donating funds to the campaign, they will instead use their resources directly in
a way that the candidate or political party would have doneso. This may effectively skirt
the constitutional and statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political
parties will carry in their election posters or media ads. The message of petitioner, taken
as a whole, is an advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of those who run for a
political position on this social issue be determinative of how the public will vote. It
primarily advocates a stand on a social issue; only secondarily — even almost
incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that
employs such devices as sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in society, private and government
alike. It seeks to effectively communicate a greater purpose, often used for "political and
social criticism"269 "because it tears down facades, deflates stuffed shirts, and unmasks
hypocrisy. . . . Nothing is more thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this literary field, claimed that
satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack." 271 Thus, satire frequently
uses exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it to mean
that the entire plan of the candidates in his list was to cause death intentionally. The
tarpaulin caricatures political parties and parodies the intention of those in the list.
Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team Buhay" that
further emphasizes the theme of its author: Reproductive health is an important marker
for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to any social objective. Thus,
they usually simply exhort the public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr.
Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been
wary of censorship or subsequent punishment that entails evaluation of the speaker’s
viewpoint or the content of one’s speech. This is especially true when the expression
involved has political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on the part of any
human institution no matter how endowed with the secular ability to decide legal
controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the
weakest dissent. Tolerance has always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional heretics of yesterday that have
become our visionaries. Heterodoxies have always given us pause. The unforgiving but
insistent nuance that the majority surely and comfortably disregards provides us with
the checks upon reality that may soon evolve into creative solutions to grave social
problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other

provisions which, taken together with the guarantee of free expression, enhances each
other’s value. Among these are the provisions that acknowledge the idea of equality. In
shaping doctrine construing these constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly tailored guidance fit to the facts as given
so as not to unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that
separate at the point of giving priority to equality vis-à-vis liberty. 272

In an equality-based approach, "politically disadvantaged speech prevails over

regulation[,] but regulation promoting political equality prevails over speech." 273 This
view allows the government leeway to redistribute or equalize ‘speaking power,’ such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society’s ideological ladder. 274 This view acknowledges
that there are dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of the majoritarian
world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic
self or to participate in the self determination of one’s communities is not new only to
law. It has always been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely "protect[ing] the already
established machinery of discrimination." 275 In his view, any improvement "in the normal
course of events" within an unequal society, without subversion, only strengthens
existing interests of those in power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression

may become meaningless if not taken in a real context. This tendency to tackle rights in
the abstract compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology

which results from a whole series of synthetic judgments. It stipulates the ability to
determine one’s own life: to be able to determine what to do and what not to do, what to
suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a
human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law, between
general and individual interest, common and private welfare in an established society,
but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies. 277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and
deliberated by the people — "implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis of knowledge, that they must
have access to authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought."278 He submits that "[d]ifferent opinions and
‘philosophies’ can no longer compete peacefully for adherence and persuasion on
rational grounds: the ‘marketplace of ideas’ is organized and delimited by those who
determine the national and the individual interest." 279 A slant toward left manifests from
his belief that "there is a ‘natural right’ of resistance for oppressed and overpowered
minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends
from established hierarchies, power structures, and indoctrinations. The tolerance of
libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations
such as "expressive, deliberative, and informational interests," 282 costs or the price of
expression, and background facts, when taken together, produce bases for a system of
stringent protections for expressive liberties. 283

Many legal scholars discuss the interest and value of expressive liberties. Justice
Brandeis proposed that "public discussion is a political duty." 284 Cass Sustein placed
political speech on the upper tier of his twotier model for freedom of expression, thus,
warranting stringent protection.285 He defined political speech as "both intended and
received as a contribution to public deliberation about some issue." 286

But this is usually related also tofair access to opportunities for such liberties. 287 Fair
access to opportunity is suggested to mean substantive equality and not mere formal
equalitysince "favorable conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some guarantee that efforts to
express views on matters of common concern will not be drowned out by the speech of
betterendowed citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech
with more speech."289 This view moves away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as the
preferred strategy for addressing them."290 However, in some cases, the idea of more
speech may not be enough. Professor Laurence Tribe observed the need for context
and "the specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be
viewed in a formal rather than a substantive sense." 292 Thus, more speech can only
mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of

Section 11(b) ofthe Electoral Reforms Law of 1987. 293 This section "prohibits mass
media from selling or giving free of charge print space or air time for campaign or other
political purposes, except to the Commission on Elections." 294 This court explained that
this provision only regulates the time and manner of advertising in order to ensure
media equality among candidates.295 This court grounded this measure on constitutional
provisions mandating political equality:296 Article IX-C, Section 4

Section 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 therefor, for public
information campaigns and forums among candidates in connection with the objective
of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that
protect and enhance the right of all the people to human dignity, reducesocial,
economic, and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more
substantive expressive freedoms that take equality of opportunities into consideration
during elections.

The other view

However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a bearing in
free speech doctrine. Under this view, "members of the public are trusted to make their
own individual evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to a freely
competitive ideological market."297 This is consistent with the libertarian suspicion on the
use of viewpoint as well as content to evaluate the constitutional validity or invalidity of
speech.

The textual basis of this view is that the constitutional provision uses negative rather
than affirmative language. It uses ‘speech’ as its subject and not
‘speakers’.298 Consequently, the Constitution protects free speech per se, indifferent to
the types, status, or associations of its speakers. 299 Pursuant to this, "government must
leave speakers and listeners in the private order to their own devices in sorting out the
relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that
freedom of speech includes "not only the right to express one’s views, but also other
cognate rights relevant to the free communication [of] ideas, not excluding the right to
be informed on matters of public concern." 301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications
of voters and candidates, education, means of transportation, health, public discussion,
private animosities, the weather, the threshold of a voter’s resistance to pressure — the
utmost ventilation of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua non for
elections to truly reflect the will of the electorate. 302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free
speech primacy such that"courts, as a rule are wary to impose greater restrictions as to
any attempt to curtail speeches with political content," 303 thus:

the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas
is still the best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the
US Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned
restrictions (even if content-neutral) on expressive liberty imposed in the name of
‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the political
arena."306 The majority did not use the equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a
person can speak, which takes out of his exclusive judgment the decision of when
enough is enough, deprives him of his free speech." 307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently

constricts the sum of public information and runs counter to our ‘profound national
commitment that debate on public issues should be uninhibited, robust, and wide-
open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not
ease the plight of those without funds in the first place . . . [and] even if one’s main
concern isslowing the increase in political costs, it may be more effective torely on
market forces toachieve that result than on active legal intervention." 309 According to
Herbert Alexander, "[t]o oppose limitations is not necessarily to argue that the sky’s the
limit [because in] any campaign there are saturation levels and a point where spending
no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes the
ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those who have less. Those
who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of
his or her expression. This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by

candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v.
COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken as
a whole, principally advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including
those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which
will not amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into

speech of persons who are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is regulated is declarative speech
that, taken as a whole, has for its principal object the endorsement of a candidate only.
The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to
meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the
least restrictive means to achieve that object. The regulation must only be with respect
to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it will
notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present
law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution
No. 9615 — if applied to this case, will not pass the test of reasonability. A fixed size for
election posters or tarpaulins without any relation to the distance from the intended
average audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet
could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression 311 and the meaningful exercise of the right
to suffrage,312 the present case also involves one’s right to property. 313

Respondents argue that it is the right of the state to prevent the circumvention of
regulations relating to election propaganda by applying such regulations to private
individuals.314 Certainly, any provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the tarpaulin in question
belongs to petitioners. Respondents have also agreed, during the oral arguments, that
petitioners were neither commissioned nor paid by any candidate or political party to
post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the
Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz: 315

Any regulation, therefore, which operates as an effective confiscation of private property

or constitutes an arbitrary or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of due process and equal
protection of the laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers
should be posted is "so broad that it encompasses even the citizen’s private
property."317 Consequently, it violates Article III, Section 1 of the Constitution which
provides thatno person shall be deprived of his property without due process of law.
This court explained:
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]) 318

This court ruled that the regulation in Adiong violates private property rights:

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
inthe common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front dooror 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.319 Respondents ordered petitioners, who are private citizens, to
remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may
be no expression when there is no place where the expression may be made.
COMELEC’s infringement upon petitioners’ property rights as in the present case also
reaches out to infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote
justifies the intrusion into petitioners’ property rights. Election laws and regulations must
be reasonable. It must also acknowledge a private individual’s right to exercise property
rights. Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting
of election propaganda in private property without the consent of the owners of such
private property. COMELEC has incorrectly implemented these regulations. Consistent
with our ruling in Adiong, we find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private property is an impermissible
encroachments on the right to property.

V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the
questioned notice and letter violated the right of petitioners to the free exercise of their
religion.

At the outset, the Constitution mandates the separation of church and state. 320 This
takes many forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting

the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. Noreligious test
shall be required for the exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession and
worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious make such act immune from any secular regulation. 324 The religious also have
a secular existence. They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop
amounts to religious expression. This notwithstanding petitioners’ claim that "the views
and position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is
inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325

The difficulty that often presents itself in these cases stems from the reality that every
act can be motivated by moral, ethical, and religious considerations. In terms of their
effect on the corporeal world, these acts range from belief, to expressions of these
faiths, to religious ceremonies, and then to acts of a secular character that may, from
the point of view of others who do not share the same faith or may not subscribe to any
religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this
court. Certainly, our powers of adjudication cannot be blinded by bare claims that acts
are religious in nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent

of Schools of Cebu326 in claiming that the court "emphatically" held that the adherents
ofa particular religion shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s
Witnesses from participating in the flag ceremony "out of respect for their religious
beliefs, [no matter how] "bizarre" those beliefsmay seem to others." 328 This court found a
balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations are
government policies that take religion specifically intoaccount not to promote the
government’s favored form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore is to remove a burden
on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan
explained, the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish." 330

This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither advances nor
inhibits religion; and (3) it does not foster an excessive entanglement with religion. 331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey
any religious doctrine of the Catholic church." 332 That the position of the Catholic church
appears to coincide with the message of the tarpaulin regarding the RH Law does not,
by itself, bring the expression within the ambit of religious speech. On the contrary, the
tarpaulin clearly refers to candidates classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim
that the expression onthe tarpaulin is an ecclesiastical matter. With all due respect to
the Catholic faithful, the church doctrines relied upon by petitioners are not binding upon
this court. The position of the Catholic religion in the Philippines as regards the RH Law
does not suffice to qualify the posting by one of its members of a tarpaulin as religious
speech solely on such basis. The enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political consequences and not
religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor

Relations Commission333 cited by petitioners finds no application in the present case.
The posting of the tarpaulin does not fall within the category of matters that are beyond
the jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and
other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its
duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or
limit the speech of the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office.Their message may be construed generalizations of very
complex individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team
Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of
a single issue — and a complex piece of legislation at that — can easily be interpreted
as anattempt to stereo type the candidates and party-list organizations. Not all may
agree to the way their thoughts were expressed, as in fact there are other Catholic
dioceses that chose not to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-
minded and non-judgmental. Some may have expected that the authors would give
more space to practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our

fundamental liberties. It is not a detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in the act that they do to others
but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the
minority. This can often be expressed by dominant institutions, even religious ones.
That they made their point dramatically and in a large way does not necessarily mean
that their statements are true, or that they have basis, or that they have been expressed
in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a

specie of expression protected by our fundamental law. It is an expression designed to
invite attention, cause debate, and hopefully, persuade. It may be motivated by the
interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will
have very real secular consequences. Certainly, provocative messages do matter for
the elections.

What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the
right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It
is protected as a fundamental and primordial right by our Constitution. The expression
in the medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order

previously issued is hereby made permanent. The act of the COMELEC in issuing the
assailed notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.

G.R. No. 169838             April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),

GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima
Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor
LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District
Chief Gen. PEDRO BULAONG, Respondents.

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

G.R. No. 169848             April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita
Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta
Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap,
Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita
Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon,
Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his
personal capacity, ANGELO REYES, in his official capacity as Secretary of the
Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as
the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as
the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in
his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER
PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER
THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

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

G.R. No. 169881             April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and

Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National
President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M.
TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO
LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT.
PEDRO BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and
taxpayers of the Philippines and that their rights as organizations and individuals were
violated when the rally they participated in on October 6, 2005 was violently dispersed
by policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R.
No. 169848,2 who allege that they were injured, arrested and detained when a peaceful
mass action they held on September 26, 2005 was preempted and violently dispersed
by the police. They further assert that on October 5, 2005, a group they participated in
marched to Malacañang to protest issuances of the Palace which, they claim, put the
country under an "undeclared" martial rule, and the protest was likewise dispersed
violently and many among them were arrested and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,3 allege that they conduct peaceful mass actions and that their rights as
organizations and those of their individual members as citizens, specifically the right to
peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of
"Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and
Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU
also co-sponsored was scheduled to proceed along España Avenue in front of the
University of Santo Tomas and going towards Mendiola bridge. Police officers blocked
them along Morayta Street and prevented them from proceeding further. They were
then forcibly dispersed, causing injuries on one of them. 4 Three other rallyists were
arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop
violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy
recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To
Assemble And Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to

assemble and petition the government for redress of grievances is essential and vital to
the strength and stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade,

procession or any other form of mass or concerted action held in a public place
for the purpose of presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or influencing any state of
affairs whether political, economic or social; or petitioning the government for
redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and

assemblages for religious purposes shall be governed by local
ordinances; Provided, however, That the declaration of policy as provided in
Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted
action in strike areas by workers and employees resulting from a labor dispute as
defined by the Labor Code, its implementing rules and regulations, and by the
Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public
assembly or in the dispersal of the same.
 (d) "Modification of a permit" shall include the change of the place and time of the
public assembly, rerouting of the parade or street march, the volume of loud-
speakers or sound system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be
required for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or
made in a freedom park duly established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated educational institution
which shall be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the
following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders
or organizers; the purpose of such public assembly; the date, time and duration
thereof, and place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and the public address
systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant
under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five
(5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing,
the office of the city or municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

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

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

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision in
an appropriate court of law.

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

(g) All cases filed in court under this section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the
use, for an appreciable length of time, of any public highway, boulevard, avenue, road
or street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will be no serious or undue
interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders
and organizers of a public assembly to take all reasonable measures and steps to the
end that the intended public assembly shall be conducted peacefully in accordance with
the terms of the permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;|avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-

demonstrators from disrupting the lawful activities of the public assembly;
 (c) To confer with local government officials concerned and law enforcers to the
end that the public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time
stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any
act unduly interfering with the rights of other persons not participating in the
public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies

shall not interfere with the holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away
from the area of activity ready to maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement
agencies, when their assistance is requested by the leaders or organizers, to perform
their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators
shall be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit

shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any
 property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the disturbance
persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding

subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance
or any provision of this Act. Such arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such purposes
in any place other than those set out in said permit: Provided, however, That no
person can be punished or held criminally liable for participating in or attending
an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the

provisions of this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the

right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement

agency or any person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

 (g) Acts described hereunder if committed within one hundred (100) meters from
the area of activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm,

pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public

assembly by the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts
defined in the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one

month and one day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g)
shall be punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six

months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or

unconstitutional, the validity or constitutionality of the other provisions shall not be
affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions,
orders, ordinances or parts thereof which are inconsistent with the provisions of this Act
are hereby repealed, amended, or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated
September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to

inflame the political situation, sow disorder and incite people against the duly constituted
authorities, we have instructed the PNP as well as the local government units to strictly
enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and
arrest all persons violating the laws of the land as well as ordinances on the proper
conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum

tolerance. The authorities will not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the
right to be protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful

conduct befitting of a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of
the Constitution and the International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines is a signatory. 5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly
regardless of the presence or absence of a clear and present danger. It also curtails the
choice of venue and is thus repugnant to the freedom of expression clause as the time
and place of a public assembly form part of the message for which the expression is
sought. Furthermore, it is not content-neutral as it does not apply to mass actions in
support of the government. The words "lawful cause," "opinion," "protesting or
influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against
the government because they are being tolerated. As a content-based legislation, it
cannot pass the strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as
it is a curtailment of the right to peacefully assemble and petition for redress of
grievances because it puts a condition for the valid exercise of that right. It also
characterizes public assemblies without a permit as illegal and penalizes them and
allows their dispersal. Thus, its provisions are not mere regulations but are actually
prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards.
The two standards stated in the laws (clear and present danger and imminent and grave
danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard
of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague
and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to
assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a
permit. And even assuming that the legislature can set limits to this right, the limits
provided are unreasonable: First, allowing the Mayor to deny the permit on clear and
convincing evidence of a clear and present danger is too comprehensive. Second, the
five-day requirement to apply for a permit is too long as certain events require instant
public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action
even before the rallyists can perform their act, and that no law, ordinance or executive
order supports the policy. Furthermore, it contravenes the maximum tolerance policy of
B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise
by the people of the right to peaceably assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila

City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo
Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal
Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in
his personal capacity; Angelo Reyes, as Secretary of the Interior and Local
Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private individuals acting
under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary,

PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and
PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that
they had been "injured, arrested or detained because of the CPR," and that
"those arrested stand to be charged with violating Batas Pambansa [No.] 880
and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly
claim that the time, place and manner regulation embodied in B.P. No. 880
violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is
content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P.
No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is less intrusive of free
speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5
requires the statement of the public assembly’s time, place and manner of
conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade.
Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the
basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test."
The status of B.P. No. 880 as a content-neutral regulation has been recognized
in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of

the time, place and manner of holding public assemblies and the law passes the
test for such regulation, namely, these regulations need only a substantial
governmental interest to support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive

has the authority to exercise police power to meet "the demands of the common
good in terms of traffic decongestion and public convenience." Furthermore, the
discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6
(a), (b), (c), (d), (e), 13 and 15 of the law.
 6. The standards set forth in the law are not inconsistent. "Clear and convincing
evidence that the public assembly will create a clear and present danger to public
order, public safety, public convenience, public morals or public health" and
"imminent and grave danger of a substantive evil" both express the meaning of
the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing
laws and ordinances to protect public interest and restore public order. Thus, it is
not accurate to call it a new rule but rather it is a more pro-active and dynamic
enforcement of existing laws, regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the
petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No.
7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his
denials of permits were under the "clear and present danger" rule as there was a clamor
to stop rallies that disrupt the economy and to protect the lives of other people; that J.
B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the
constitutionality of requiring a permit; that the permit is for the use of a public place and
not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of
all the Comments, the Court set the cases for oral arguments on April 4, 2006, 14 stating
the principal issues, as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5,

6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal
Declaration of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive

Response (CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

 (c) Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?

During the course of the oral arguments, the following developments took place and
were approved and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the

portions of their petitions raising factual issues, particularly those raising the
issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of
September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that
CPR should no longer be used as a legal term inasmuch as, according to
respondents, it was merely a "catchword" intended to clarify what was thought to
be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880
and that, as stated in the affidavit executed by Executive Secretary Eduardo
Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and
the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the
foregoing developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in

peaceful assembly and exercise the right of petition, as guaranteed by the Constitution,
is directly affected by B.P. No. 880 which requires a permit for all who would publicly
assemble in the nation’s streets and parks. They have, in fact, purposely engaged in
public assemblies without the required permits to press their claim that no such permit
can be validly required without violating the Constitutional guarantee. Respondents, on
the other hand, have challenged such action as contrary to law and dispersed the public
assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press, a right
that enjoys primacy in the realm of constitutional protection. For these rights constitute
the very basis of a functional democratic polity, without which all the other rights would
be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the
onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and
petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the
government for a redress of grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to engage in peaceful
concerted activities. These rights are guaranteed by no less than the Constitution,
particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section
3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and
promoting the people’s exercise of these rights. As early as the onset of this century,
this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and
even went as far as to acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to assemble and to
petition for redress of grievances would become a delusion and a snare and the attempt
to exercise it on the most righteous occasion and in the most peaceable manner would
expose all those who took part therein to the severest and most unmerited punishment,
if the purposes which they sought to attain did not happen to be pleasing to the
prosecuting authorities. If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost discretion
must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of

speech and to assembly and petition over comfort and convenience in the use of streets
and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute.
In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government
for redress of grievances, are fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise of those rights
is not absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional rights is
termed the sovereign "police power," which is the power to prescribe regulations, to
promote the health, morals, peace, education, good order or safety, and general welfare
of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional
and civil rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called municipal and city
councils to enact ordinances for the purpose. 18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances." Free speech,
like free press, may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. There is to be
then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil
that [the State] has a right to prevent." Freedom of assembly connotes the right
of the people to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference and respect. It
is not to be limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive evil that
the state has a right to prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. To paraphrase
the opinion of Justice Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by accident or coincidence that
the rights to freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the
exercise of this right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious
evil to public safety, public morals, public health, or any other legitimate public
interest.

2. Nowhere is the rationale that underlies the freedom of expression and

peaceable assembly better expressed than in this excerpt from an opinion of
Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights
was the child of the Enlightenment. Back of the guaranty of free speech lay faith
in the power of an appeal to reason by all the peaceful means for gaining access
to the mind. It was in order to avert force and explosions due to restrictions upon
rational modes of communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution." What was rightfully
stressed is the abandonment of reason, the utterance, whether verbal or printed,
being in a context of violence. It must always be remembered that this right
likewise provides for a safety valve, allowing parties the opportunity to give vent
to their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful
means may be the only alternative. Nor is this the sole reason for the expression
of dissent. It means more than just the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the name
of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to
force is ruled out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: "It is rather to be expected that more or
less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater the grievance and
the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that
for the constitutional right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided. To give free rein to one’s destructive urges is
to call for condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the
peace rally would start. The Philippines is committed to the view expressed in the
plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever
the title of streets and parks may rest, they have immemorially been held in trust
for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of
all; it is not absolute, but relative, and must be exercised in subordination to the
general comfort and convenience, and in consonance with peace and good
order; but must not, in the guise of regulation, be abridged or denied." The above
excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit
what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a promenade for
public use," which certainly is not the only purpose that it could serve. To repeat,
there can be no valid reason why a permit should not be granted for the
proposed march and rally starting from a public park that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates
of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v.
Fugoso has resolved any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a public meeting at
Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox v. State of New Hampshire, 312
U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any ground abutting thereon, shall
be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the
Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a
statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech
and press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration of
the time, place, and manner of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide
proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by
the Constitution, imply the existence of an organized society maintaining public
order without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public highways has never
been regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The control of
travel on the streets of cities is the most familiar illustration of this recognition of
social need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief

Justice Hughes in these words: "The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under which
the meeting is held but as to its purpose; not as to the relations of the speakers,
but whether their utterances transcend the bounds of the freedom of speech
 which the Constitution protects." There could be danger to public peace and
safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable.
It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given
all the relevant circumstances, still the assumption – especially so where the
assembly is scheduled for a specific public place – is that the permit must be for
the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should

inform the licensing authority of the date, the public place where and the time
when it will take place. If it were a private place, only the consent of the owner or
the one entitled to its legal possession is required. Such application should be
filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to the
proper judicial authority. Free speech and peaceable assembly, along with the
other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, -- even more so
than on the other departments – rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula,
no sanctifying phrase can, of course, dispense with what has been so felicitiously
termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and primacy. x
x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

Sec. 4. Permit when required and

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The
applicants for a permit to hold an
assembly should inform the licensing
authority of the date, the public
place where and the time when it will
take place. If it were a private place,
only the consent of the owner or the
one entitled to its legal possession is
required. Such application should be
filed well ahead in time to enable the
public official concerned to appraise
whether there may be valid objections
to the grant of the permit or to its grant
but at another public place. It is an
indispensable condition to such refusal
or modification that the clear and
present danger test be the standard for
the decision reached. If he is of the
view that there is such an imminent
and grave danger of a substantive evil,
the applicants must be heard on the
matter. Thereafter, his decision,
whether favorable or adverse, must be
transmitted to them at the earliest
opportunity. Thus if so minded, they
can have recourse to the proper
judicial authority.
when not required.-- A written permit
shall be required for any person or
persons to organize and hold a public
assembly in a public place. However,
no permit shall be required if the public
assembly shall be done or made in a
freedom park duly established by law
or ordinance or in private property, in
which case only the consent of the
owner or the one entitled to its legal
possession is required, or in the
campus of a government-owned and
operated educational institution which
shall be subject to the rules and
regulations of said educational
institution. Political meetings or rallies
held during any election campaign
period as provided for by law are not
covered by this Act.
Sec. 5. Application requirements.-- All
applications for a permit shall comply
with the following guidelines:
(a) The applications shall be in
writing and shall include the
names of the leaders or
organizers; the purpose of such
public assembly; the date, time
and duration thereof, and place
or streets to be used for the
intended activity; and the
probable number of persons
participating, the transport and
the public address systems to
be used.
(b) The application shall
incorporate the duty and
responsibility of applicant under
Section 8 hereof.
(c) The application shall be filed
with the office of the mayor of
 the city or municipality in whose
jurisdiction the intended activity
is to be held, at least five (5)
working days before the
scheduled public assembly.

(d) Upon receipt of the

application, which must be duly
acknowledged in writing, the
office of the city or municipal
mayor shall cause the same to
immediately be posted at a
conspicuous place in the city or
municipal building.

Sec. 6. Action to be taken on the

application. –

(a) It shall be the duty of the

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

(b) The mayor or any official

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

(c) If the mayor is of the view

that there is imminent and grave
danger of a substantive evil
warranting the denial or
modification of the permit, he
shall immediately inform the
applicant who must be heard on
the matter.

(d) The action on the permit

shall be in writing and served on
the applica[nt] within twenty-four
hours.

(e) If the mayor or any official

acting in his behalf denies the
application or modifies the terms
thereof in his permit, the
applicant may contest the
decision in an appropriate court
of law.

(f) In case suit is brought before

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

(g) All cases filed in court under

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

(h) In all cases, any decision

may be appealed to the
Supreme Court.

(i) Telegraphic appeals to be

followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies
but a restriction that simply regulates the time, place and manner of the assemblies.
This was adverted to in Osmeña v. Comelec,20 where the Court referred to it as a
"content-neutral" regulation of the time, place, and manner of holding public
assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds
of public assemblies22 that would use public places. The reference to "lawful cause"
does not make it content-based because assemblies really have to be for lawful causes,
otherwise they would not be "peaceable" and entitled to protection. Neither are the
words "opinion," "protesting" and "influencing" in the definition of public assembly
content based, since they can refer to any subject. The words "petitioning the
government for redress of grievances" come from the wording of the Constitution, so its
use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of
all rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger
to public order, public safety, public convenience, public morals or public health. This is
a recognized exception to the exercise of the right even under the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29
 1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society.

3. These rights and freedoms may in no case be exercised contrary to the

purposes and principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public),
or of public health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its
provisions. "Public" does not have to be defined. Its ordinary meaning is well-known.
Webster’s Dictionary defines it, thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished

by common interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally,

demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly
and petition only to the extent needed to avoid a clear and present danger of the
substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to
the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient
standard – the clear and present danger test stated in Sec. 6(a). The reference to
"imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the
same thing and is not an inconsistent standard. As to whether respondent Mayor has
the same power independently under Republic Act No. 7160 24 is thus not necessary to
resolve in these proceedings, and was not pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative
forum through the creation of freedom parks where no prior permit is needed for
peaceful assembly and petition at any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only
Cebu City has declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he
added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and
municipality set aside a freedom park within six months from its effectivity in 1985, or 20
years ago, would be pathetic and regrettable. The matter appears to have been taken
for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s
system of regulation of the people’s exercise of their right to peacefully assemble and
petition, the Court is constrained to rule that after thirty (30) days from the finality of this
Decision, no prior permit may be required for the exercise of such right in any public
park or plaza of a city or municipality until that city or municipality shall have complied
with Section 15 of the law. For without such alternative forum, to deny the permit would
in effect be to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General
has conceded that the use of the term should now be discontinued, since it does not
mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This
is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted
by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in
consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P.
Blg. 880, which is the "highest degree of restraint that the military, police and other
peacekeeping authorities shall observe during a public assembly or in the dispersal of
the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a
different meaning over the years. Many have taken it to mean inaction on the part of law
enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this
would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the
same law which requires all pubic assemblies to have a permit, which allows the
dispersal of rallies without a permit, and which recognizes certain instances when water
cannons may be used. This could only mean that "maximum tolerance" is not in conflict
with a "no permit, no rally policy" or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of tolerance required is
dependent on how peaceful or unruly a mass action is. Our law enforcers should
calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of
maximum tolerance I clearly was not referring to its legal definition but to the distorted
and much abused definition that it has now acquired. I only wanted to disabuse the
minds of the public from the notion that law enforcers would shirk their responsibility of
keeping the peace even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in enforcing the law but
would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well
as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed."
None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It
is thus absurd for complainants to even claim that I ordered my co-respondents to
violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P.
No. 880, CPR serves no valid purpose if it means the same thing as maximum
tolerance and is illegal if it means something else. Accordingly, what is to be followed is
and should be that mandated by the law itself, namely, maximum tolerance, which
specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies

shall not interfere with the holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away
from the area of activity ready to maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement
agencies, when their assistance is requested by the leaders or organizers, to perform
their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is
primordial.1avvphil.net Towards this end, law enforcement agencies shall observe the
following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators
shall be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit

shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
 (b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any
property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the disturbance
persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding

subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance
or any provision of this Act. Such arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or
any person to disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the
area of activity of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the
use of a motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where

mayors do not act on applications for a permit and when the police demand a permit
and the rallyists could not produce one, the rally is immediately dispersed. In such a
situation, as a necessary consequence and part of maximum tolerance, rallyists who
can show the police an application duly filed on a given date can, after two days from
said date, rally in accordance with their application without the need to show a permit,
the grant of the permit being then presumed under the law, and it will be the burden of
the authorities to show that there has been a denial of the application, in which case the
rally may be peacefully dispersed following the procedure of maximum tolerance
prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our
people, especially freedom of expression and freedom of assembly. In several policy
addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the
liberty of our people and to nurture their prosperity. He said that "in cases involving
liberty, the scales of justice should weigh heavily against the government and in favor of
the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed,
laws and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected
to heightened scrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our
legal firmament and must be struck down as a darkness that shrouds freedom. It merely
confuses our people and is used by some police agents to justify abuses. On the other
hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or
unduly restrict freedoms; it merely regulates the use of public places as to the time,
place and manner of assemblies. Far from being insidious, "maximum tolerance" is for
the benefit of rallyists, not the government. The delegation to the mayors of the power to
issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and
present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving
local governments a deadline of 30 days within which to designate specific freedom
parks as provided under B.P. No. 880. If, after that period, no such parks are so
identified in accordance with Section 15 of the law, all public parks and plazas of the
municipality or city concerned shall in effect be deemed freedom parks; no prior permit
of whatever kind shall be required to hold an assembly therein. The only requirement
will be written notices to the police and the mayor’s office to allow proper coordination
and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly

the Secretary of the Interior and Local Governments, are DIRECTED to take all
necessary steps for the immediate compliance with Section 15 of Batas Pambansa No.
880 through the establishment or designation of at least one suitable freedom park or
plaza in every city and municipality of the country. After thirty (30) days from the finality
of this Decision, subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition in the public parks or
plazas of a city or municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to
differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the
requirements of maximum tolerance. The petitions are DISMISSED in all other respects,
and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.

No costs.

G.R. No. 175241               February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President,

Jose Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ
BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.

DECISION

CARPIO MORALES, J.:

Petitioners Integrated Bar of the Philippines 1 (IBP) and lawyers H. Harry L. Roque and
Joel R. Butuyan appeal the June 28, 2006 Decision 2 and the October 26, 2006
Resolution3 of the Court of Appeals that found no grave abuse of discretion on the part
of respondent Jose "Lito" Atienza, the then mayor of Manila, in granting a permit to rally
in a venue other than the one applied for by the IBP.

On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz
(Cadiz), filed with the Office of the City Mayor of Manila a letter application 4 for a permit
to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to
be participated in by IBP officers and members, law students and multi-sectoral
organizations.

Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on
given date but indicated therein Plaza Miranda as the venue, instead of Mendiola
Bridge, which permit the IBP received on June 19, 2006.

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for
certiorari docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved
within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a
petition for certiorari docketed as G.R. No. 172951 which assailed the appellate court’s
inaction or refusal to resolve the petition within the period provided under the Public
Assembly Act of 1985.7

The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006,
respectively, denied the petition for being moot and academic, denied the relief that the
petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and
denied the motion for reconsideration.

The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed
with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD)
earlier barred petitioners from proceeding thereto. Petitioners allege that the participants
voluntarily dispersed after the peaceful conduct of the program.

The MPD thereupon instituted on June 26, 2006 a criminal action, 8 docketed as I.S. No.
06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a
venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of
August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first
assailed issuance, that the petition became moot and lacked merit. The appellate court
also denied petitioners’ motion for reconsideration by the second assailed issuance.

Hence, the filing of the present petition for review on certiorari, to which respondent filed
his Comment of November 18, 2008 which merited petitioners’ Reply of October 2,
2009.

The main issue is whether the appellate court erred in holding that the modification of
the venue in IBP’s rally permit does not constitute grave abuse of discretion.

Petitioners assert that the partial grant of the application runs contrary to the Pubic
Assembly Act and violates their constitutional right to freedom of expression and public
assembly.

The Court shall first resolve the preliminary issue of mootness.

Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot
upon the passing of the date of the rally on June 22, 2006.

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use
or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness. However, even in cases where supervening events had made the cases
moot, this Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and public. Moreover, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition, yet evading review.9

In the present case, the question of the legality of a modification of a permit to rally will
arise each time the terms of an intended rally are altered by the concerned official, yet it
evades review, owing to the limited time in processing the application where the
shortest allowable period is five days prior to the assembly. The susceptibility of
recurrence compels the Court to definitively resolve the issue at hand.

Respecting petitioners’ argument that the issues presented in CA-G.R. SP No. 94949
pose a prejudicial question to the criminal case against Cadiz, the Court finds it
improper to resolve the same in the present case.

Under the Rules,10 the existence of a prejudicial question is a ground in a petition to

suspend proceedings in a criminal action. Since suspension of the proceedings in the
criminal action may be made only upon petition and not at the instance of the judge or
the investigating prosecutor,11 the latter cannot take cognizance of a claim of prejudicial
question without a petition to suspend being filed. Since a petition to suspend can be
filed only in the criminal action,12 the determination of the pendency of a prejudicial
question should be made at the first instance in the criminal action, and not before this
Court in an appeal from the civil action.

In proceeding to resolve the petition on the merits, the appellate court found no grave
abuse of discretion on the part of respondent because the Public Assembly Act does
not categorically require respondent to specify in writing the imminent and grave danger
of a substantive evil which warrants the denial or modification of the permit and merely
mandates that the action taken shall be in writing and shall be served on respondent
within 24 hours. The appellate court went on to hold that respondent is authorized to
regulate the exercise of the freedom of expression and of public assembly which are not
absolute, and that the challenged permit is consistent with Plaza Miranda’s designation
as a freedom park where protest rallies are allowed without permit.

The Court finds for petitioners.

Section 6 of the Public Assembly Act reads:

Section 6. Action to be taken on the application -

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

(b) The mayor or any official acting in his behalf shall act on the application within
two (2) working days from the date the application was filed, failing which, the
permit shall be deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said application
shall be posted by the applicant on the premises of the office of the mayor and
shall be deemed to have been filed.
 (c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application [sic]
within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision in
an appropriate court of law.

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

(g) All cases filed in court under this Section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

(underscoring supplied)

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court

reiterated:

x x x Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to be accorded the
utmost deference and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and present danger
of a substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence
of our republican institutions and complements the right of free speech. To paraphrase
the opinion of Justice Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guarantee with the rights
of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave
and imminent, of a serious evil to public safety, public morals, public health, or
any other legitimate public interest.14 (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to
6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court
elucidated as follows:

x x x [The public official concerned shall] appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or  modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to the
proper judicial authority.16 (italics and underscoring supplied)

In modifying the permit outright, respondent gravely abused his discretion when he did
not immediately inform the IBP who should have been heard first on the matter of his
perceived imminent and grave danger of a substantive evil that may warrant the
changing of the venue. The opportunity to be heard precedes the action on the permit,
since the applicant may directly go to court after an unfavorable action on the
permit.1avvphi1

Respondent failed to indicate how he had arrived at modifying the terms of the permit
against the standard of a clear and present danger test which, it bears repeating, is an
indispensable condition to such modification. Nothing in the issued permit adverts to an
imminent and grave danger of a substantive evil, which "blank" denial or modification
would, when granted imprimatur as the appellate court would have it, render illusory any
judicial scrutiny thereof.

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."17 (emphasis and underscoring supplied)

Notably, respondent failed to indicate in his Comment any basis or explanation for his
action. It smacks of whim and caprice for respondent to just impose a change of venue
for an assembly that was slated for a specific public place. It is thus reversible error for
the appellate court not to have found such grave abuse of discretion and, under specific
statutory

provision, not to have modified the permit "in terms satisfactory to the applicant." 18

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-
G.R. SP No. 94949 are REVERSED. The Court DECLARES that respondent committed
grave abuse of discretion in modifying the rally permit issued on June 16, 2006 insofar
as it altered the venue from Mendiola Bridge to Plaza Miranda.

BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT

PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER
PURPOSES
 

Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985."

Section 2. Declaration of policy - The constitutional right of the people peaceably to

assemble and petition the government for redress of grievances is essential and vital to
the strength and stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.

Section 3. Definition of terms - For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade,

procession or any other form of mass or concerted action held in a public place
for the purpose of presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or influencing any state of
affairs whether political, economic or social; or petitioning the government for
redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and

assemblages for religious purposes shall be governed by local ordinances:
Provided, however, That the declaration of policy as provided in Section 2 of this
Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted
action in strike areas by workers and employees resulting from a labor dispute as
defined by the Labor Code, its implementing rules and regulations, and by the
Batas Pambansa Bilang 227.
 (b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public
assembly or in the dispersal of the same.

(d) "Modification of permit" shall include the change of the place and time of the
public assembly, rerouting of the parade or street march, the volume of loud-
speakers or sound system and similar changes.

Section 4. Permit when required and when not required - A written permit shall be
required for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or
made in a freedom park duly established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated educational institution
which shall be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Section 5. Application requirements - All applications for a permit shall comply with the
following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders
or organizers; the purpose of such public assembly; the date, time and duration
thereof, and place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and the public address
systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five
(5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing,
the office of the city or municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal building.

Section 6. Action to be taken on the application -

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

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

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application
within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision in
an appropriate court of law.

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

(g) All cases filed in court under this Section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Should the proposed public assembly involve
the use, for an appreciable length of time, of any public highway, boulevard, avenue,
road or street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will be no serious or undue
interference with the free flow of commerce and trade.

Section 8. Responsibility of applicant - It shall be the duty and responsibility of the

leaders and organizers of a public assembly to take all reasonable measures and steps
to the end that the intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but not be limited to the
following:

(a) To inform the participants of their responsibility under the permit;

(b) To police the ranks of the demonstrators in order to prevent non-

demonstrators from disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the
end that the public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time
stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any
act unduly interfering with the rights of other persons not participating in the
public assembly.

Section 9. Non-interference by law enforcement authorities - Law enforcement

agencies shall not interfere with the holding of a public assembly. However, to
adequately ensure public safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a place at least one hundred
(100) meter away from the area of activity ready to maintain peace and order at all
times.

Section 10. Police assistance when requested - It shall be imperative for law

enforcement agencies, when their assistance is requested by the leaders or organizers,
to perform their duties always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble and the freedom of
expression is primordial. Towards this end, law enforcement agencies shall observe the
following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators
shall be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.
Section 11. Dispersal of public assembly with permit - No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any
property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the disturbance
persists, the public assembly will be dispersed;

(c) If the violence or disturbances prevailing as stated in the preceding

subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance
or any provision of this Act. Such arrest shall be governed by Article 125 of the
Revised Penal Code, as amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public
assembly shall not constitute a group for dispersal.

Section 12. Dispersal of public assembly without permit - When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.

Section 13. Prohibited acts - The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such purposes
in any place other than those set out in said permit: Provided, however, That no
person can be punished or held criminally liable for participating in or attending
an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the

provisions of this Act by the mayor or any other official acting in his behalf.

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;
 (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement

agency or any person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from
the area of activity of the public assembly or on the occasion thereof;

1. the carrying of a deadly or offensive weapon or device such as firearm,

pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3 the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public

assembly by the use of a motor vehicle, its horns and loud sound systems.

Section 14. Penalties - Any person found guilty and convicted of any of the prohibited
acts defined in the immediately preceding Section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one

month and one day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g)
shall be punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six

months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Section 15. Freedom parks - Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity of this
Act.

Section 16. Constitutionality - Should any provision of this Act be declared invalid or

unconstitutional, the validity or constitutionality of the other provisions shall not be
affected thereby.

Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions,

orders, ordinances or parts thereof which are inconsistent with the provisions of this Act
are hereby repealed, amended, or modified accordingly.

Section 18. Effectivity - This Act shall take effect upon its approval.

A.M. No. P-02-1651             June 22, 2006

(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad
Escritor once again stands before the Court invoking her religious freedom and her
Jehovah God in a bid to save her family – united without the benefit of legal marriage -
and livelihood. The State, on the other hand, seeks to wield its power to regulate her
behavior and protect its interest in marriage and family and the integrity of the courts
where respondent is an employee. How the Court will tilt the scales of justice in the
case at bar will decide not only the fate of respondent Escritor but of other believers
coming to Court bearing grievances on their free exercise of religion. This case comes
to us from our remand to the Office of the Court Administrator on August 4, 2003. 1

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada

requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Piñas City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a child
within this live-in arrangement. Estrada believes that Escritor is committing an immoral
act that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act. 2 Consequently,
respondent was charged with committing "disgraceful and immoral conduct" under Book
V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998. 4 She admitted that she started living
with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman. She also admitted that
she and Quilapio have a son.5 But as a member of the religious sect known as the
Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious beliefs and
has the approval of her congregation. 6 In fact, after ten years of living together, she
executed on July 28, 1991, a "Declaration of Pledging Faithfulness." 7

For Jehovah’s Witnesses, the Declaration allows members of the congregation who
have been abandoned by their spouses to enter into marital relations. The Declaration
thus makes the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed. As laid out by the tenets of their
faith, the Jehovah’s congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities’ approval of the marital
relationship because of legal impediments. Only couples who have been baptized and
in good standing may execute the Declaration, which requires the approval of the elders
of the congregation. As a matter of practice, the marital status of the declarants and
their respective spouses’ commission of adultery are investigated before the
declarations are executed.8 Escritor and Quilapio’s declarations were executed in the
usual and approved form prescribed by the Jehovah’s Witnesses, 9 approved by elders
of the congregation where the declarations were executed, 10 and recorded in the Watch
Tower Central Office.11

Moreover, the Jehovah’s congregation believes that once all legal impediments for the
couple are lifted, the validity of the declarations ceases, and the couple should legalize
their union. In Escritor’s case, although she was widowed in 1998, thereby lifting the
legal impediment to marry on her part, her mate was still not capacitated to remarry.
Thus, their declarations remained valid.12 In sum, therefore, insofar as the congregation
is concerned, there is nothing immoral about the conjugal arrangement between
Escritor and Quilapio and they remain members in good standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in
asserting that her conjugal arrangement does not constitute disgraceful and immoral
conduct for which she should be held administratively liable, 13 the Court had to
determine the contours of religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.

A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins
and development of the religion clauses in the United States (U.S.) and the Philippines,
we held that in resolving claims involving religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the religion clauses in our Constitution; and (2) in deciding respondent’s plea
of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which
must be applied.14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on
the ultimate issue of whether respondent was to be held administratively liable for there
was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus, in
the decision dated August 4, 2003, we remanded the complaint to the Office of the
Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:

(a) examine the sincerity and centrality of respondent’s claimed religious belief
and practice;

(b) present evidence on the state’s "compelling interest" to override respondent’s

religious belief and practice; and

(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondent’s religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO
WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS
OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already
been ruled upon prior to the remand, and constitute "the law of the case" insofar as they
resolved the issues of which framework and test are to be applied in this case, and no
motion for its reconsideration having been filed. 16 The only task that the Court is left to
do is to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.

B. Law of the case

Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years ago, is
misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has
attained finality and constitutes the law of the case. Any attempt to reopen this final
ruling constitutes a crass contravention of elementary rules of procedure. Worse, insofar
as it would overturn the parties’ right to rely upon our interpretation which has long
attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive
infirmities in Mr. Justice Carpio’s belated attempts to disturb settled issues, and that he
had timely presented his arguments, the results would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old World

antecedents of the religion clauses, because "one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to religious
freedom in the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
experience."17 We delved into the conception of religion from primitive times, when it
started out as the state

itself, when the authority and power of the state were ascribed to God. 18 Then, religion
developed on its own and became superior to the state, 19 its subordinate,20 and even
becoming an engine of state policy. 21

We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the
Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religion’s invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of church and state saw
its birth in American constitutional democracy and in human history. 22

Strictly speaking, the American experiment of freedom and separation was not
translated in the First Amendment. That experiment had been launched four years
earlier, when the founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison said, the national
government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it. 23

The omission of an express guaranty of religious freedom and other natural rights,
however, nearly prevented the ratification of the Constitution. The restriction had to be
made explicit with the adoption of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the absence of
power.24 It commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof. 25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to
serve contradictory purposes. They have a single goal—to promote freedom of
individual religious beliefs and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs
and practice, while the Establishment Clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two
religion clauses were intended to deny government the power to use either the carrot or
the stick to influence individual religious beliefs and practices. 26

In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of non-
establishment to allow the free exercise of religion.

2. Religion Clauses in the U.S. Context

The Court then turned to the religion clauses’ interpretation and construction in the
United States, not because we are bound by their interpretation, but because the U.S.
religion clauses are the precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has been
volatile and fraught with inconsistencies whether within a Court decision or across
decisions. For while there is widespread agreement regarding the value of the First
Amendment religion clauses, there is an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has been reached by
those who have studied the religion clauses as regards its exact meaning and the
paucity of records in the U.S. Congress renders it difficult to ascertain its meaning. 27

U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation, which may
take the form of either (a) strict separation or (b) the tamer version of strict neutrality or
separation, or what Mr. Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between the
state and the Church to protect the state from the church. 28 Both protect the principle of
church-state separation with a rigid reading of the principle. On the other hand, the
second standard, the benevolent neutrality or accommodation, is buttressed by the view
that the wall of separation is meant to protect the church from the state. A brief review of
each theory is in order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect
the state from the church, and the state’s hostility towards religion allows no interaction
between the two. According to this Jeffersonian view, an absolute barrier to formal
interdependence of religion and state needs to be erected. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could the state adjust its
secular programs to alleviate burdens the programs placed on believers. 29 Only the
complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views, thus a strict
"wall of separation" is necessary. 30

Strict separation faces difficulties, however, as it is deeply embedded in American

history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly indirect
aid from religion.31 For example, less than twenty-four hours after Congress adopted the
First Amendment’s prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings enjoyed
by the nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.32 Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed and is
never likely to.33

The tamer version of the strict separationist view, the strict neutrality or separationist
view, (or, the governmental neutrality theory) finds basis in Everson v. Board of
Education,34 where the Court declared that Jefferson’s "wall of separation" encapsulated
the meaning of the First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require the state to be
their adversary. Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to handicap
religions than it is to favor them."35 The strict neutrality approach is not hostile to
religion, but it is strict in holding that religion may not be used as a basis for
classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require, accommodation of secular
programs to religious belief.36

The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the
Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in
Abington School District v. Schempp,37 strict neutrality could lead to "a brooding and
pervasive devotion to the secular and a passive, or even active, hostility to the religious"
which is prohibited by the Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision into
law by guaranteeing the free exercise of religion but not, say, of philosophy or science.
The strict neutrality approach all but erases this distinction. Thus it is not surprising that
the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.39

Thus, the dilemma of the separationist approach, whether in the form of strict separation
or strict neutrality, is that while the Jeffersonian wall of separation "captures the spirit of
the American ideal of church-state separation," in real life, church and state are not and
cannot be totally separate. This is all the more true in contemporary times when both
the government and religion are growing and expanding their spheres of involvement
and activity, resulting in the intersection of government and religion at many points. 40

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of

the "wall of separation," associated with Williams, founder of the Rhode Island colony.
Unlike the Jeffersonian wall that is meant to protect the state from the church, the wall is
meant to protect the church from the state. 41 This doctrine was expressed in Zorach v.
Clauson,42 which held, viz:

The First Amendment, however, does not say that in every and all respects there shall
be a separation of Church and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be
required to pay even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped parishioners into
their places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these
and all other references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court opens each session: "God
save the United States and this Honorable Court."

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We

guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their effective scope of religious
influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public life of
the United States as shown by many traditional government practices which, to strict
neutrality, pose Establishment Clause questions. Among these are the inscription of "In
God We Trust" on American currency; the recognition of America as "one nation under
God" in the official pledge of allegiance to the flag; the Supreme Court’s time-honored
practice of opening oral argument with the invocation "God save the United States and
this Honorable Court"; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for one
theological viewpoint—the existence of and potential for intervention by a god—over the
contrary theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor relief, in the
treatment of alcoholism and drug addiction, in foreign aid and other government
activities with strong moral dimension. 44

Examples of accommodations in American jurisprudence also abound, including, but

not limited to the U.S. Court declaring the following acts as constitutional: a state hiring
a Presbyterian minister to lead the legislature in daily prayers, 45 or requiring employers
to pay workers compensation when the resulting inconsistency between work and
Sabbath leads to discharge;46 for government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior; 47 or to provide
religious school pupils with books;48 or bus rides to religious schools;49 or with cash to
pay for state-mandated standardized tests. 50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion
clauses are invoked in relation to governmental action, almost invariably in the form of
legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion will be
challenged as unconstitutional, either because it violates the Free Exercise Clause or
the Establishment Clause or both. This is true whether one subscribes to the
separationist approach or the benevolent neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular
purpose and general applicability, but may incidentally or inadvertently aid or burden
religious exercise. Though the government action is not religiously motivated, these
laws have a "burdensome effect" on religious exercise.

The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the government’s
favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan
explained, the "government [may] take religion into account…to exempt, when possible,
from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish." 51 In the
ideal world, the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened may turn to the
courts for protection.52

Thus, what is sought under the theory of accommodation is not a declaration of

unconstitutionality of a facially neutral law, but an exemption from its application or its
"burdensome effect," whether by the legislature or the courts. 53 Most of the free exercise
claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral
law that has a "burdensome" effect.54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S.
blossomed in the case of Sherbert v. Verner,55 which ruled that state regulation that
indirectly restrains or punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.56 According to Sherbert, when a law of general
application infringes religious exercise, albeit incidentally, the state interest sought to be
promoted must be so paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation

under the law as her employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In
laying down the standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work constitutes no

conduct prompted by religious principles of a kind within the reach of state legislation. If,
therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional right of free exercise, or
because any incidental burden on the free exercise of appellant’s religion may be
justified by a "compelling state interest in the regulation of a subject within the State’s
constitutional power to regulate. . . ."57 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to
merely show a rational relationship of the substantial infringement to the religious right
and a colorable state interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible
limitation.’"58 The Court found that there was no such compelling state interest to
override Sherbert’s religious liberty. It added that even if the state could show that
Sherbert’s exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show
that no alternative means of regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge this burden. The Court
thus carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert’s benefits would force her to choose
between receiving benefits and following her religion. This choice placed "the same kind
of burden upon the free exercise of religion as would a fine imposed against (her) for
her Saturday worship." This germinal case of Sherbert firmly established the exemption
doctrine, 59 viz:

It is certain that not every conscience can be accommodated by all the laws of the land;
but when general laws conflict with scruples of conscience, exemptions ought to be
granted unless some "compelling state interest" intervenes.

Thus, Sherbert and subsequent cases held that when government action burdens, even
inadvertently, a sincerely held religious belief or practice, the state must justify the
burden by demonstrating that the law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious exemption would impair the state’s
ability to effectuate its compelling interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the highest level of judicial
scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of general application whenever
unjustified burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious
exemption was in order, notwithstanding that the law of general application had a
criminal penalty. Using heightened scrutiny, the Court overturned the conviction of
Amish parents for violating Wisconsin compulsory school-attendance laws. The Court,
in effect, granted exemption from a neutral, criminal statute that punished religiously
motivated conduct. Chief Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a legitimate
religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of sufficient magnitude
to override the interest claiming protection under the Free Exercise Clause. Long before
there was general acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit, prohibition
against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of
other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in the
exercise of their undoubted power to promote the health, safety, and general welfare, or
the Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the
State is not to deny that there are areas of conduct protected by the Free Exercise
Clause of the First Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot be neatly
confined in logic-tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise
clause claims were subject to heightened scrutiny or compelling interest test if
government substantially burdened the exercise of religion; (b) heightened scrutiny or
compelling interest test governed cases where the burden was direct, i.e., the exercise
of religion triggered a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit;63 and (c) the Court could carve out accommodations or exemptions from a
facially neutral law of general application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protected—
conduct beyond speech, press, or worship was included in the shelter of freedom of
religion. Neither Sherbert’s refusal to work on the Sabbath nor the Amish parents’
refusal to let their children attend ninth and tenth grades can be classified as conduct
protected by the other clauses of the First Amendment. Second, indirect impositions on
religious conduct, such as the denial of twenty-six weeks of unemployment insurance
benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at
issue in Yoder, were prohibited. Third, as the language in the two cases indicate, the
protection granted was extensive. Only extremely strong governmental interests justified
impingement on religious conduct, as the absolute language of the test of the Free
Exercise Clause suggests. 64

Fourth, the strong language was backed by a requirement that the government provide
proof of the important interest at stake and of the dangers to that interest presented by
the religious conduct at issue. Fifth, in determining the injury to the government’s
interest, a court was required to focus on the effect that exempting religious claimants
from the regulation would have, rather than on the value of the regulation in general.
Thus, injury to governmental interest had to be measured at the margin: assuming the
law still applied to all others, what would be the effect of exempting the religious
claimant in this case and other similarly situated religious claimants in the future?
Together, the fourth and fifth elements required that facts, rather than speculation, had
to be presented concerning how the government’s interest would be harmed by
excepting religious conduct from the law being challenged. 65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which
would impose a discipline to prevent manipulation in the balancing of interests. The
fourth and the fifth elements prevented the likelihood of exaggeration of the weight on
the governmental interest side of the balance, by not allowing speculation about the
effects of a decision adverse to those interests nor accepting that those interests would
be defined at a higher level of generality than the constitutional interests on the other
side of the balance. 66

Thus, the strict scrutiny and compelling state interest test significantly increased the
degree of protection afforded to religiously motivated conduct. While not affording
absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of
the U.S. Court often disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that under Sherbert and Yoder, the Free
Exercise Clause provided individuals some form of heightened scrutiny protection, if not
always a compelling interest one.68 The 1990 case of Employment Division, Oregon
Department of Human Resources v. Smith,69 drastically changed all that.

Smith involved a challenge by Native Americans to an Oregon law prohibiting use of

peyote, a hallucinogenic substance. Specifically, individuals challenged the state’s
determination that their religious use of peyote, which resulted in their dismissal from
employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits. 70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion
required an exemption from an otherwise valid law. Scalia said that "[w]e have never
held that an individual’s religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence contradicts that
proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an
individual of the obligation to comply with a ‘valid and neutral law of general applicability
of the ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).’" 72

Justice Scalia’s opinion then reviewed the cases where free exercise challenges had
been upheld—such as Cantwell, Murdock, Follet, Pierce, and Yoder—and said that
none involved the free exercise clause claims alone. All involved "the Free Exercise
Clause in conjunction with other constitutional protections, such as freedom of speech
and of the press, or the right of parents to direct the education of their children." 73 The
Court said that Smith was distinguishable because it did not involve such a "hybrid
situation," but was a free exercise claim "unconnected with any communicative activity
or parental right." 74

Moreover, the Court said that the Sherbert line of cases applied only in the context of
the denial of unemployment benefits; it did not create a basis for an exemption from
criminal laws. Scalia wrote that "[e]ven if we were inclined to breathe into Sherbert some
life beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law." 75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of
general applicability that burden religion. Justice Scalia said that "[p]recisely because
‘we are a cosmopolitan nation made up of people of almost conceivable religious
preference,’ and precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an interest of the highest
order." The Court said that those seeking religious exemptions from laws should look to
the democratic process for protection, not the courts. 76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny
and the compelling justification approach were abandoned for evaluating laws
burdening religion; neutral laws of general applicability only have to meet the rational
basis test, no matter how much they burden religion. 77

Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the
compelling state interest test, asserting that "(t)he compelling state interest test
effectuates the First Amendment’s command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear and
compelling government interest ‘of the highest order.’" 78 She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling interest test reflects
the First Amendment’s mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society." 79

Justice O’Connor also disagreed with the majority’s description of prior cases and
especially its leaving the protection of minority religions to the political process. She said
that, "First Amendment was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be viewed with hostility." 80

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and
Marshall. The dissenting Justices agreed with Justice O’Connor that the majority had
mischaracterized precedents, such as in describing Yoder as a "hybrid" case rather
than as one under the free exercise clause. The dissent also argued that strict scrutiny
should be used in evaluating government laws burdening religion. 81

Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan

majority of Congress noisily denounced the decision. 83 Smith has the rather unusual
distinction of being one case that is almost universally despised (and this is not too
strong a word) by both the liberals and conservatives. 84 Liberals chasten the Court for
its hostility to minority faiths which, in light of Smith’s general applicability rule, will
allegedly suffer at the hands of the majority faith whether through outright hostility or
neglect. Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular nation that is
increasingly hostile to religious belief as an oppressive and archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized
as exhibiting a shallow understanding of free exercise jurisprudence. 86 First, the First
amendment was intended to protect minority religions from the tyranny of the religious
and political majority. 87 Critics of Smith have worried about religious minorities, who can
suffer disproportionately from laws that enact majoritarian mores. 88 Smith, in effect
would allow discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate almost invariably from
relatively politically powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.91 Second, Smith leaves too much leeway for pervasive
welfare-state regulation to burden religion while satisfying neutrality. After all, laws not
aimed at religion can hinder observance just as effectively as those that target
religion.92 Government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise
Clause could not afford protection to inadvertent interference, it would be left almost
meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine simply defies common
sense. The state should not be allowed to interfere with the most deeply held
fundamental religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious inadvertent
impact on religion.95

At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the
difficulty in defining and limiting the term "religion" in today’s pluralistic society, and (2)
the belief that courts have no business determining the significance of an individual’s
religious beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free
exercise protection to the political process or to allow a "system in which each
conscience is a law unto itself." 96 The Court’s characterization of its choices have been
soundly rejected as false, viz:

If one accepts the Court’s assumption that these are the only two viable options, then
admittedly, the Court has a stronger argument. But the Free Exercise Clause cannot be
summarily dismissed as too difficult to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of "religion" must be
protected. Accordingly, the Constitution compels the Court to struggle with the contours
of what constitutes "religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Court’s two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires
the Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to contemplate."

It is not clear whom the Court feels would be most hurt by this "parade of horribles."
Surely not religious individuals; they would undoubtedly prefer their religious beliefs to
be probed for sincerity and significance rather than acquiesce to the Court’s approach
of simply refusing to grant any constitutional significance to their beliefs at all. If the
Court is concerned about requiring lawmakers at times constitutionally to exempt
religious individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free Exercise
Clause through such legislation as the [Religious Freedom Restoration Act of 1993],
and in any case, the Court should not be overly concerned about hurting legislature’s
feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court
is concerned about putting such burden on judges. If so, it would truly be odd to say that

requiring the judiciary to perform its appointed role as constitutional interpreters is a

burden no judge should be expected to fulfill.97

Parenthetically, Smith’s characterization that the U.S. Court has "never held that an
individual’s religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate"—an assertion which Mr. Justice
Carpio adopted unequivocally in his dissent—has been sharply criticized even implicitly
by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not
do so by opposing the arguments that the Court was wrong as a matter of original
meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the
Smith decision made shocking use of precedent]—those points were often conceded. 98

To justify its perversion of precedent, the Smith Court attempted to distinguish the
exemption made in Yoder, by asserting that these were premised on two constitutional
rights combined—the right of parents to direct the education of their children and the
right of free exercise of religion. Under the Court’s opinion in Smith, the right of free
exercise of religion standing alone would not allow Amish parents to disregard the
compulsory school attendance law, and under the Court’s opinion in Yoder, parents
whose objection to the law was not religious would also have to obey it. The fatal flaw in
this argument, however, is that if two constitutional claims will fail on its own, how would
it prevail if combined?99 As for Sherbert, the Smith Court attempted to limit its doctrine
as applicable only to denials of unemployment compensation benefits where the
religiously-compelled conduct that leads to job loss is not a violation of criminal law. And
yet, this is precisely why the rejection of Sherbert was so damaging in its effect: the
religious person was more likely to be entitled to constitutional protection when forced to
choose between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. 100

Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.101 So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. 102 The
RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise
claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion."103 The Act declares that its purpose is to restore the compelling
interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee
its application in all cases where free exercise of religion is substantially burdened; and
to provide a claim of defense to a person whose religious exercise is substantially
burdened by government.104 The RFRA thus sought to overrule Smith and make strict
scrutiny the test for all free exercise clause claims. 105

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the Fourteenth
Amendment in enacting the law. The Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights. 107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of
lack of judicial respect for the constitutional decision-making by a coordinate branch of
government. In Smith, Justice Scalia wrote:

"Values that are protected against governmental interference through enshrinement in

the Bill of Rights are not thereby banished from the political process. Just as society
believes in the negative protection accorded to the press by the First Amendment is
likely to enact laws that affirmatively foster the dissemination of the printed word, so
also a society that believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a

nearly unanimous Congress. Contrary to the Court’s characterization of the RFRA as a
kind of usurpation of the judicial power to say what the Constitution means, the law
offered no definition of Free Exercise, and on its face appeared to be a procedural
measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power of
Congress to act towards the states in matters of religion arises from the Fourteenth
Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of
legislature to give accommodations, is in effect contrary to the benevolent neutrality or
accommodation approach. Moreover, if we consider the history of the incorporation of
the religion clauses in the U.S., the decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith. Smith is dangerous precedent
because it subordinates fundamental rights of religious belief and practice to all neutral,
general legislation. Sherbert recognized the need to protect religious exercise in light of
the massive increase in the size of government, the concerns within its reach, and the
number of laws administered by it. However, Smith abandons the protection of religious
exercise at a time when the scope and reach of government has never been greater. It
has been pointed out that Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force conformity on religious
minorities whose practice irritate or frighten an intolerant majority. 109

The effect of Smith is to erase entirely the concept of mandatory accommodations,

thereby emasculating the Free Exercise Clause. Smith left religious freedom for many in
the hands of the political process, exactly where it would be if the religion clauses did
not exist in the Bill of Rights. Like most protections found in the Bill of Rights, the
religion clauses of the First Amendment are most important to those who cannot prevail
in the political process. The Court in Smith ignores the fact that the protections found in
the Bill of Rights were deemed too important to leave to the political process. Because
mainstream religions generally have been successful in protecting their interests
through the political process, it is the non-mainstream religions that are adversely
affected by Smith. In short, the U.S. Supreme Court has made it clear to such religions
that they should not look to the First Amendment for religious freedom. 110

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a) those which are
found to be constitutionally compelled, i.e., required by the Free Exercise Clause; (b)
those which are discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and (c) those which the
religion clauses prohibit.111

Mandatory accommodation results when the Court finds that accommodation is required
by the Free Exercise Clause, i.e, when the Court itself carves out an exemption. This
accommodation occurs when all three conditions of the compelling interest test are met,
i.e, a statute or government action has burdened claimant’s free exercise of religion,
and there is no doubt as to the sincerity of the religious belief; the state has failed to
demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great
and the advancement of public purposes is incomparable that only indifference or
hostility could explain a refusal to make exemptions. Thus, if the state’s objective could
be served as well or almost as well by granting an exemption to those whose religious
beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required
by law. The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions of
Sherbert.112

In permissive accommodation, the Court finds that the State may, but is not required to,
accommodate religious interests. The U.S. Walz case illustrates this situation where the
U.S. Supreme Court upheld the constitutionality of tax exemption given by New York to
church properties, but did not rule that the state was required to provide tax exemptions.
The Court declared that "(t)he limits of permissible state accommodation to religion are
by no means co-extensive with the noninterference mandated by the Free Exercise
Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in public
schools and Marsh v. Chambers,115 allowing payment of legislative chaplains from
public funds. Parenthetically, the Court in Smith has ruled that this is the only
accommodation allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it determines
that the legislative accommodation runs afoul of the establishment or the free exercise
clause, it results to a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation interests. To say that
there are valid exemptions buttressed by the Free Exercise Clause does not mean that
all claims for free exercise exemptions are valid.116 An example where accommodation
was prohibited is McCollum v. Board of Education, 117 where the Court ruled against
optional religious instruction in the public school premises. 118

Given that a free exercise claim could lead to three different results, the question now
remains as to how the Court should determine which action to take. In this regard, it is
the strict scrutiny-compelling state interest test which is most in line with the benevolent
neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is
that freedom to carry out one’s duties to a Supreme Being is an inalienable right, not
one dependent on the grace of legislature. Religious freedom is seen as a substantive
right and not merely a privilege against discriminatory legislation. With religion looked
upon with benevolence and not hostility, benevolent neutrality allows accommodation of
religion under certain circumstances.

Considering that laws nowadays are rarely enacted specifically to disable religious
belief or practice, free exercise disputes arise commonly when a law that is religiously
neutral and generally applicable on its face is argued to prevent or burden what
someone’s religious faith requires, or alternatively, requires someone to undertake an
act that faith would preclude. In essence, then, free exercise arguments contemplate
religious exemptions from otherwise general laws.119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment’s mandate of preserving religious liberty to the
fullest extent possible in a pluralistic society.120 Underlying the compelling state interest
test is the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.121

In its application, the compelling state interest test follows a three-step process,
summarized as follows:

If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some important (or ‘compelling’) secular
objective and that it is the least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimant’s
beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant’s religious denomination. ‘Only
beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs,
however sincere and conscientious, do not suffice. 122

In sum, the U.S. Court has invariably decided claims based on the religion clauses
using either the separationist approach, or the benevolent neutrality approach. The
benevolent neutrality approach has also further been split by the view that the First
Amendment requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in Smith, however, is that
that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the

Philippines, it is immediately clear that one cannot simply conclude that we have
adopted—lock, stock and barrel—the religion clauses as embodied in the First
Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in the
U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations, similar exemptions for religion are
mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church property, 123 salary of
religious officers in government institutions,124 and optional religious instruction.125 Our
own preamble also invokes the aid of a divine being. 126 These constitutional provisions
are wholly ours and have no counterpart in the U.S. Constitution or its amendments.
They all reveal without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses. 127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous
insofar as it asserted that the 1935 Constitution incorporates the Walz ruling as this
case was decided subsequent to the 1935 Constitution is a misreading of the ponencia.
What the ponencia pointed out was that even as early as 1935, or more than three
decades before the U.S. Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the same in our
Constitution, as a mandatory accommodation.

There is no ambiguity with regard to the Philippine Constitution’s departure from the
U.S. Constitution, insofar as religious accommodations are concerned. It is indubitable
that benevolent neutrality-accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the Philippine Constitution. 128 As stated in our
Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution xxxx Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited
the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus,
when a religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S. authorities to
support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the Philippine religion clauses’
history. As a result, in a case where the party claims religious liberty in the face of a
general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions, however, are not
and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other
provisions on religion in all three constitutions. It is a cardinal rule in constitutional
construction that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner that will give to
all of them full force and effect. From this construction, it will be ascertained that the
intent of the framers was to adopt a benevolent neutrality approach in interpreting the
religious clauses in the Philippine constitutions, and the enforcement of this intent is the
goal of construing the constitution.129 [citations omitted]

We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s
interpretation of the religion clauses to effectively deny accommodations on the sole
basis that the law in question is neutral and of general application. For even if it were
true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an
individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate," our own Constitutions have
made significant changes to accommodate and exempt religion. Philippine
jurisprudence shows that the Court has allowed exemptions from a law of general
application, in effect, interpreting our religion clauses to cover both mandatory and
permissive accommodations.130

To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this
case, plaintiff was required by an ordinance to secure a mayor’s permit and a municipal
license as ordinarily required of those engaged in the business of general merchandise
under the city’s ordinances. Plaintiff argued that this amounted to "religious censorship
and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or occupation of selling
said "merchandise" for profit, it also ruled that applying the ordinance to plaintiff and
requiring it to secure a license and pay a license fee or tax would impair its free exercise
of religious profession and worship and its right of dissemination of religious beliefs "as
the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint of
such right can only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive evil which the State
has the right to prevent. (citations omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division

Superintendent of Schools.132 The case involved several Jehovah’s Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving
the religious freedom issue, a unanimous Court overturned an earlier ruling denying
such exemption,133 using the "grave and imminent danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified. 134 (emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general
application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of
Victoriano v. Elizalde Rope Workers Union135 is an example of the application of Mr.
Justice Carpio’s theory of permissive accommodation, where religious exemption is
granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350
was questioned. The said R.A. exempt employees from the application and coverage of
a closed shop agreement—mandated in another law—based on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect." Interestingly, the secular purpose of the
challenged law which the Court upheld was the advancement of "the constitutional right
to the free exercise of religion."136

Having established that benevolent neutrality-accommodation is the framework by

which free exercise cases must be decided, the next question then turned to the test
that should be used in ascertaining the limits of the exercise of religious freedom. In our
Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as in the case at bar, the compelling
state interest test, is proper, viz:

Philippine jurisprudence articulates several tests to determine these limits. Beginning

with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and
present danger" test in the maiden case of American Bible Society. Not surprisingly, all
the cases which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is often used
in cases on freedom of expression. On the other hand, the Gerona and German cases
set the rule that religious freedom will not prevail over established institutions of society
and law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not congruent
with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar
to Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the state’s interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the
Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such higher
sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just
and humane society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state’s interest and religious liberty, reasonableness shall be
the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays.
In the end, the "compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty will not be
preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing
the applicability of the benevolent neutrality framework and compelling state interest
test, states that "[i]t is true that a test needs to be applied by the Court in determining
the validity of a free exercise claim of exemption as made here by Escritor." This
assertion is inconsistent with the position negating the benevolent neutrality or
accommodation approach. If it were true, indeed, that the religion clauses do not require
accommodations based on the free exercise of religion, then there would be no need for
a test to determine the validity of a free exercise claim, as any and all claims for
religious exemptions from a law of general application would fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing
free exercise exemption claims because it forces the Court to confront how far it can
validly set the limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as opposite concepts, and
then rejecting relevant and instructive American jurisprudence (such as the Smith case)
just because it does not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith
is that only legislative accommodations are allowed under the Free Exercise Clause, it
cannot be used in determining a claim of religion exemption directly anchored on the
Free Exercise Clause. Thus, even assuming that the Smith doctrine actually espouses
the theory of accommodation or benevolent neutrality, the accommodation is limited to
the permissive, or legislative exemptions. It, therefore, cannot be used as a test in
determining the claims of religious exemptions directly under the Free Exercise Clause
because Smith does not recognize such exemption. Moreover, Mr. Justice Carpio’s
advocacy of the Smith doctrine would effectively render the Free Exercise protection—a
fundamental right under our Constitution—nugatory because he would deny its status
as an independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process.
We explained this process in detail, by showing the questions which must be answered
in each step, viz:

…First, "[H]as the statute or government action created a burden on the free exercise of
religion?" The courts often look into the sincerity of the religious belief, but without
inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimant’s belief is
ascertained to avoid the mere claim of religious beliefs to escape a mandatory
regulation. xxx

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty?" In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do
more than assert the objectives at risk if exemption is given; it must precisely show how
and to what extent those objectives will be undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state?" The analysis requires the state to
show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties xxx. 138 [citations omitted]

Again, the application of the compelling state interest test could result to three situations
of accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that
the State may, but is not required to, accommodate religious interests, permissive
accommodation results. Finally, if the Court finds that that establishment concerns
prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He
posits the view that the law should prevail in the absence of a legislative exemption, and
the Court cannot make the accommodation or exemption.

Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The
cases of American Bible Society, Ebralinag, and Victoriano demonstrate that our
application of the doctrine of benevolent neutrality-accommodation covers not only the
grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible,
even if anchored directly on an invocation of the Free Exercise Clause alone, rather
than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the
Court granted an accommodation/exemption to a religious act from the application of
general penal laws, permissive accommodation based on religious freedom has been
granted with respect to one of the crimes penalized under the Revised Penal Code, that
of bigamy.

In the U.S. case of Reynolds v. United States, 139 the U.S. Court expressly denied to
Mormons an exemption from a general federal law criminalizing polygamy, even if it was
proven that the practice constituted a religious duty under their faith. 140 In
contradistinction, Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known
as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy "shall not apply to a person married…under Muslim law."
Thus, by legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized this
accommodation when, in his dissent in our Decision dated August 4, 2003 and citing
Sulu Islamic Association of Masjid Lambayong v. Malik, 141 he stated that a Muslim
Judge "is not criminally liable for bigamy because Shari’a law allows a Muslim to have
more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation

only" advocacy in this jurisdiction becomes manifest. Having anchored his argument on
the Smith doctrine that "the guaranty of religious liberty as embodied in the Free
Exercise Clause does not require the grant of exemptions from generally applicable
laws to individuals whose religious practice conflict with those laws," his theory is
infirmed by the showing that the benevolent neutrality approach which allows for both
mandatory and permissive accommodations was unequivocally adopted by our framers
in the Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance
is the antithesis to the notion that religion clauses, like the other fundamental liberties
found in the Bill or Rights, is a preferred right and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in
Sherbert is not applicable when the law in question is a generally applicable criminal
law. Stated differently, even if Mr. Justice Carpio conceded that there is no question that
in the Philippine context, accommodations are made, the question remains as to how
far the exemptions will be made and who would make these exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommodation is uncertain, for Philippine law and jurisprudence
have, in fact, allowed legislative accommodation. Second, the power of the Courts to
grant exemptions in general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided, not just
once, but twice by the Court. Thus, the crux of the matter is whether this Court can
make exemptions as in Ebralinag and the American Bible Society, in cases involving
criminal laws of general application.

We hold that the Constitution itself mandates the Court to do so for the following
reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the
Philippine religion clauses, the benevolent neutrality-accommodation approach in
Philippine jurisdiction is more pronounced and given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of
mandatory accommodations, was to address the "inadvertent burdensome effect" that
an otherwise facially neutral law would have on religious exercise. Just because the law
is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise
Clause. As stated by Justice O’Connor in her concurring opinion in Smith, "[t]here is
nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as laws aimed at
religion."142

Third, there is wisdom in accommodation made by the Court as this is the recourse of
minority religions who are likewise protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference
and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:

....In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate intent to
interfere with religious practice. At times, this effect is unavoidable as a practical matter
because some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or
hostility could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case when the
religious practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows accommodations
prevents needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien
concept, nor will it be applied for the first time, as an exemption of such nature, albeit by
legislative act, has already been granted to Moslem polygamy and the criminal law of
bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental
rights like the right to life, liberty or property, the Religion Clauses are stated in absolute
terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful
order." Only the right to free speech is comparable in its absolute grant. Given the
unequivocal and unqualified grant couched in the language, the Court cannot simply
dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise
that the law in question is a general criminal law. 143 If the burden is great and the
sincerity of the religious belief is not in question, adherence to the benevolent neutrality-
accommodation approach require that the Court make an individual determination and
not dismiss the claim outright.

At this point, we must emphasize that the adoption of the benevolent neutrality-
accommodation approach does not mean that the Court ought to grant exemptions
every time a free exercise claim comes before it. This is an erroneous reading of the
framework which the dissent of Mr. Justice Carpio seems to entertain. Although
benevolent neutrality is the lens with which the Court ought to view religion clause
cases, the interest of the state should also be afforded utmost protection. This is
precisely the purpose of the test—to draw the line between mandatory, permissible and
forbidden religious exercise. Thus, under the framework, the Court cannot simply
dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely
is the protection afforded by the religion clauses of the Constitution. 144 As stated in the
Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of
its merits as discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad from
which the Court should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty "not only for a
minority, however small- not only for a majority, however large but for each of us" to the
greatest extent possible within flexible constitutional limits. 145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned,
what remained to be resolved, upon which remand was necessary, pertained to the final
task of subjecting this case to the careful application of the compelling state interest
test, i.e., determining whether respondent is entitled to exemption, an issue which is
essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the
Hearing Officer’s report,146 along with the evidence submitted by the OSG, this case is
once again with us, to resolve the penultimate question of whether respondent should
be found guilty of the administrative charge of "disgraceful and immoral conduct." It is at
this point then that we examine the report and documents submitted by the hearing
officer of this case, and apply the three-step process of the compelling state interest test
based on the evidence presented by the parties, especially the government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the
sincerity and centrality of respondent’s claimed religious belief and practice are beyond
serious doubt.147 Thus, having previously established the preliminary conditions required
by the compelling state interest test, i.e., that a law or government practice inhibits the
free exercise of respondent’s religious beliefs, and there being no doubt as to the
sincerity and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least restrictive means of
achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest
abuses, endangering paramount interests" which could limit or override respondent’s
fundamental right to religious freedom. Neither did the government exert any effort to
show that the means it seeks to achieve its legitimate state objective is the least
intrusive means.

The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of
Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract
Society of the Philippines, Inc.

Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondent’s claimed religious belief and practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September
30, 2003 issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed

religious belief and practice; and (2) to prove that the Declaration of Pledging
Faithfulness, being a purely internal arrangement within the congregation of the
Jehovah’s Witnesses, cannot be a source of any legal protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling
interest to override respondent’s claimed religious belief and practice, in order to protect
marriage and the family as basic social institutions. The Solicitor General, quoting the
Constitution148 and the Family Code,149 argues that marriage and the family are so
crucial to the stability and peace of the nation that the conjugal arrangement embraced
in the Declaration of Pledging Faithfulness should not be recognized or given effect, as
"it is utterly destructive of the avowed institutions of marriage and the family for it
reduces to a mockery these legally exalted and socially significant institutions which in
their purity demand respect and dignity." 150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor
General in so far as he asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social institutions, which is ultimately
the public policy underlying the criminal sanctions against concubinage and bigamy. He
also argues that in dismissing the administrative complaint against respondent, "the
majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal
Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to respondent’s
criminal conduct, the majority is in fact recognizing a practice, custom or agreement that
subverts marriage. He argues in a similar fashion as regards the state’s interest in the
sound administration of justice.

There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of justice.
Indeed, the provisions by which respondent’s relationship is said to have impinged, e.g.,
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles
334 and 349 of the Revised Penal Code, and even the provisions on marriage and
family in the Civil Code and Family Code, all clearly demonstrate the State’s need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the
fundamental rights in our Constitution. It is a fundamental right that enjoys a preferred
position in the hierarchy of rights — "the most inalienable and sacred of human rights,"
in the words of Jefferson. Hence, it is not enough to contend that the state’s interest is
important, because our Constitution itself holds the right to religious freedom sacred.
The State must articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of right by
itself.

Thus, it is not the State’s broad interest in "protecting the institutions of marriage and
the family," or even "in the sound administration of justice" that must be weighed against
respondent’s claim, but the State’s narrow interest in refusing to make an exception for
the cohabitation which respondent’s faith finds moral. In other words, the government
must do more than assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.

To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s
interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a
free exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly
assert that unbending application of a criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case
at bar, the State has not evinced any concrete interest in enforcing the concubinage or
bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The State’s asserted interest thus amounts only
to the symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the
words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision,
dated August 4, 2003, to deny the exemption would effectively break up "an otherwise
ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of
marriage and the family.

The Solicitor General also argued against respondent’s religious freedom on the basis
of morality, i.e., that "the conjugal arrangement of respondent and her live-in partner
should not be condoned because adulterous relationships are constantly frowned upon
by society";152 and "that State laws on marriage, which are moral in nature, take clear
precedence over the religious beliefs and practices of any church, religious sect or
denomination on marriage. Verily, religious beliefs and practices should not be
permitted to override laws relating to public policy such as those of marriage." 153

The above arguments are mere reiterations of the arguments raised by Mme. Justice
Ynares-Santiago in her dissenting opinion to our Decision dated August 4, 2003, which
she offers again in toto. These arguments have already been addressed in our decision
dated August 4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-
Santiago’s dissenting opinion dwelt more on the standards of morality, without
categorically holding that religious freedom is not in issue. 155 We, therefore, went into a
discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised Penal Code,158 or
"morals" in the New Civil Code,159 or "moral character" in the Constitution, 160 the
distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind; 161

(b) Although the morality contemplated by laws is secular, benevolent neutrality

could allow for accommodation of morality based on religion, provided it does not
offend compelling state interests;162

(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. 163

(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable.164 Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal.165

(e) While there is no dispute that under settled jurisprudence, respondent’s

conduct constitutes "disgraceful and immoral conduct," the case at bar involves
the defense of religious freedom, therefore none of the cases cited by Mme.
Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the
Jehovah’s Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable
by law.167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
respondent with conduct prejudicial to the best interest of the service, and we reiterate
that the dissent offends due process as respondent was not given an opportunity to
defend herself against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the best interest of the
service.168

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the
Court grants respondent exemption from the laws which respondent Escritor has been
charged to have violated, the exemption would not apply to Catholics who have secured
church annulment of their marriage even without a final annulment from a civil court.
First, unlike Jehovah’s Witnesses, the Catholic faith considers cohabitation without
marriage as immoral. Second, but more important, the Jehovah’s Witnesses have
standards and procedures which must be followed before cohabitation without marriage
is given the blessing of the congregation. This includes an investigative process
whereby the elders of the congregation verify the circumstances of the declarants. Also,
the Declaration is not a blanket authority to cohabit without marriage because once all
legal impediments for the couple are lifted, the validity of the Declaration ceases, and
the congregation requires that the couple legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.

Nevertheless, insofar as he raises the issue of equality among religions, we look to the
words of the Religion Clauses, which clearly single out religion for both a benefit and a
burden: "No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof…" On its face, the language grants a unique advantage to
religious conduct, protecting it from governmental imposition; and imposes a unique
disadvantage, preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action seems to be
a curious reading. There are no "free exercise" of "establishment" provisions for
science, sports, philosophy, or family relations. The language itself thus seems to
answer whether we have a paradigm of equality or liberty; the language of the Clause is
clearly in the form of a grant of liberty. 169

In this case, the government’s conduct may appear innocent and nondiscriminatory but
in effect, it is oppressive to the minority. In the interpretation of a document, such as the
Bill of Rights, designed to protect the minority from the majority, the question of which
perspective is appropriate would seem easy to answer. Moreover, the text, history,
structure and values implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equality—a reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability
to use the government (law) to assist their own religion or burden others—makes the
most sense in the interpretation of the Bill of Rights, a document designed to protect
minorities and individuals from mobocracy in a democracy (the majority or a coalition of
minorities). 170

As previously discussed, our Constitution adheres to the benevolent neutrality approach

that gives room for accommodation of religious exercises as required by the Free
Exercise Clause.171 Thus, in arguing that respondent should be held administratively
liable as the arrangement she had was "illegal per se because, by universally
recognized standards, it is inherently or by its very nature bad, improper, immoral and
contrary to good conscience,"172 the Solicitor General failed to appreciate that
benevolent neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests. 173

Finally, even assuming that the OSG has proved a compelling state interest, it has to
further demonstrate that the state has used the least intrusive means possible so that
the free exercise is not infringed any more than necessary to achieve the legitimate goal
of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties.174 Again, the Solicitor General utterly failed to
prove this element of the test. Other than the two documents offered as cited above
which established the sincerity of respondent’s religious belief and the fact that the
agreement was an internal arrangement within respondent’s congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure
any such evidence to show that the means the state adopted in pursuing this compelling
interest is the least restrictive to respondent’s religious freedom.

Thus, we find that in this particular case and under these distinct circumstances,
respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a
case for exemption from the law based on her fundamental right to freedom of religion.
The Court recognizes that state interests must be upheld in order that freedoms -
including religious freedom - may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the
state, and so the state interest sought to be upheld must be so compelling that its
violation will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to subscribe
to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Asscociate Justice

ANGELINA SANDOVAL- ANTONIO T. CARPIO

GUTIERREZ
 Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes
1
 Estrada v. Escritor, 455 Phil. 411 (2003).
2
 Id. at 444. Incidentally, Escritor moved for the inhibition of Judge Caoibes from
hearing her case to avoid suspicion and bias as she previously filed an
administrative case against him. Escritor’s motion was denied.
3
 Id. The Code provides:

Sec. 46. Discipline: General Provisions. –

(a) No officer or employee in the Civil Service shall be suspended or

dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

4
 Id. at 445.
5
 Id. at 445, 447.
6
 Id. at 445, 453, and 457.
7
 Id. at 445-456. The Declaration provides:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.

Quilapio, Jr., as my mate in marital relationship; that I have done all within
my ability to obtain legal recognition of this relationship by the proper
public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this
marital relationship.

I recognize this relationship as a binding tie before ‘Jehovah’ God and

before all persons to be held to and honored in full accord with the
principles of God’s Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise to legalize
this union.

Signed this 28th day of July 1991.

Parenthetically, Escritor’s partner, Quilapio, executed a similar pledge on

the same day. Both pledges were executed in Atimonan, Quezon and
signed by three witnesses. At the time Escritor executed her pledge, her
husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his wife.
Id. at 446.
8
 Id. at 447-448, 452-453. Based on the testimony of Gregorio Salazar, a
member of the Jehovah’s Witnesses since 1985. As presiding minister since
1991, he is aware of the rules and regulations of the Congregation. An
authenticated copy of the magazine article entitled, "Maintaining Marriage Before
God and Men," which explains the rationale behind the Declaration, was also
presented.
9
 Id. at 449.
10
 Id. at 452.
11
 Id. at 449.
12
 See id. at 447-452.
13
 Id. at 445, 453, and 457.
14
 Id. at 596.
15
 Id. at 599-600.
16
 Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457; Gokongwei
v. SEC, G.R. No. 52129, April 21, 1980, 97 SCRA 78; Commissioner of Public
Highways v. Burgos, G.R. No. L-36706, March 31, 1980, 96 SCRA 831;
Municipality of Daet v. C.A., G.R. No. L-35861, October 18, 1979, 93 SCRA 503;
and People’s Homesite and Housing Corp. v. Mencias, G.R. No. L-24114,
August 16, 1967, 20 SCRA 1031.
17
 See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468 (2003).
18
 During primitive times, when there was no distinction between the religious and
secular, and the same authority that promulgated laws regulating relations
between man and man promulgated laws concerning man’s obligations to the
supernatural. See id. at 458-459.
19
 This was the time of theocracy, during the rise of the Hebrew state and the
Mosaic religion. See id. at 459-461.
20
 Following the rise of Saul, and the pre-Christian Rome which engaged in
emperor-worship. See id. at 461-462.
21
 Id. at 462-463.
22
 Id. at 468.
23
 Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 565(4th ed. 1997).
24
 Id.
25
 See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003).
26
 Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 575(4th ed. 1997).
27
 Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing Beth, L., American Theory
of Church and State 71 (1958).
28
 See id. at 487, 512-516.
29
 Id. at 515, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 46
(1980); Beth, L., American Theory of Church and State 71 & 72 (1958); and
Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making
1276 (2nd ed. 1980).
30
 Id. at 515, citing The Constitution and Religion 1541.
31
 See Drakeman, D., Church-State Constitutional Issues 55 (1991), citing Cord,
R., Separation of Church and State: Historical Fact and Current Fiction 50. Thus:

The [separationist] school of thought argues that the First Congress

intended to allow government support of religion, at least as long as that
support did not discriminate in favor of one particular religion. . . the
Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that appointed
a chaplain, he declared several national days of prayer and fasting during
his presidency, and he sponsored Jefferson’s bill for punishing Sabbath
breakers; moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent book,
"there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and
sponsor, James Madison, intended that Amendment to create a state of
complete independence between religion and government. In fact, the
evidence in the public documents goes the other way." Id. at 513-514.
32
 Id. at 514, citing Drakeman, D., Church-State Constitutional Issues 55 (1991),
Cord, R., Separation of Church and State: Historical Fact and Current Fiction 50;
and 1 The Debates and Proceedings in the Congress of the United States,
Compiled from Authentic Materials 949-950 (Annala, Gales, J. and Seaton, W.,
eds.). Only two members of U.S. Congress opposed the resolution, one on the
ground that the move was a "mimicking of European customs, where they made
a mere mockery of thanksgivings," the other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings throughout Western history
was acknowledged and the motion was passed without further recorded
discussion.
33
 Id. at 515, citing Weber, P., Neutrality and First Amendment Interpretation in
Equal Separation 3 (1990).
34
 330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court adopted
Jefferson’s metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. Said the U.S. Court:
"The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest
breach…." Id. at 18.
35
 Everson v. Board of Education, 330 U.S. 1, 18 (1947).
36
 See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing The Constitution and
Religion 1541; and Kurland, Of Church and State and the Supreme Court, 29
U.Chi.L.Rev. 1, 5 (1961). Parenthetically, the U.S. Court in Employment Division,
Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), echoed
the rationale of the separationists, when it held that if government acts in pursuit
of a generally applicable law with a secular purpose that merely incidentally
burdens religious exercise, the First Amendment has not been offended.
37
 374 U.S. 203 (1963).
38
 Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing Buzzard, L., Ericsson, S.,
The Battle for Religious Liberty 60 (1980).
39
 Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free Exercise of
Religion in Weber, P., Equal Separation 1189 (1990).
40
 Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a Pluralist
Concept of Accommodation, in Weber, P., Equal Separation 74-75 (1990).
41
 I.e., the "garden" of the church must be walled in for its own protection from the
"wilderness" of the world with its potential for corrupting those values so
necessary to religious commitment. According to Williams, this wall is breached,
for the church is in the state, and so the remaining purpose of the wall is to
safeguard religious liberty. Williams’ wall, therefore, would allow for interaction
between church and state, but is strict with regard to state action which would
threaten the integrity of religious commitment. His conception of separation is not
total such that it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality.

See discussion of the birth of the theory in Estrada v. Escritor, 455 Phil.
411, 518-519 (2003).
42
 343 U.S. 306 (1951).
43
 Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
44
 Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).
45
 Marsh v. Chambers, 463 US 783, 792-93 (1983).
46
 Sherbert v. Verner, 374 US 398, 403-04 (1963).
47
 Bowen v. Kendrick, 487 US 589, 611 (1988).
48
 Board of Education v. Allen, 392 US 236, 238 (1968).
49
 Everson v. Board of Education, 330 US 1, 17 (1947).
50
 Committee for Public Education and Religious Liberty v. Regan, 444 US 646,
653-54 (1980).
51
 Cited in McConnel, M., Accommodation of Religion: An Update and a
Response to the Critics, 60 The George Washington Law Review 685, 688. See
Estrada v. Escritor, 455 Phil. 411, 522-523 (2003).
52
 Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S., The
Resurrection of Religious Freedom, 107 Harvard Law Review 118, 1280129
(1993).
53
 Id. at 482, citing Sullivan, K., Religion and Liberal Democracy, 59 The
University of Chicago Law Review 195, 214-215 (1992).
54
 Id.
55
 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, Bradley
C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev. 1287, 1302 (2005).
56
 Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
57
 Sherbert v. Verner, 374 U.S. 398, 403 (1963).
58
 Id. at 406.
59
 Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I., The Religion
Clauses and Justice Brennan in Full, 87 California Law Review 1105, 1114, 1105
and 1110 (1999).
60
 Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
61
 406 U.S. 205 (1972).
62
 Id. at 214-215, 219-220.
63
 Ivan E. Bodensteiner, The Demise of the First Amendment as a Guarantor of
Religious Freedom, 27 Whittier L. Rev. 415,417-418 (2005). (citations omitted)
64
 See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty
Versus Equality, 1993 B. Y. U. L. Rev. 7, 30-32 (1993).
65
 Id. at 30-32.
66
 Id.
67
 Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing Stephens, Jr., O.H. and
Scheb, II J.M., American Constitutional Law 522-523 and 526 (2nd ed. 1999).
68
 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1304 (2005).
69
 494 U.S. 872 (1990).
70
 Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1211 (2nd ed.
2002).
71
 494 U.S. 872, 878-889 (1990), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1211 (2nd ed. 2002).
72
 494 U.S. 872, 879 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
73
 494 U.S. 872, 881 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
74
 494 U.S. 872, 882 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
75
 494 U.S. 872, 884 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
76
 494 U.S. 872, 888 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
77
 See Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1213 (2nd
ed. 2002).
78
 Employment Division v. Smith, 494 U.S. 872, 906 (1990). (O’Connor, J.
concurring in the judgment) This portion of her concurring opinion was supported
by Justices Brennan, Marshall and Blackmun who dissented from the Court’s
decision; cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1212 (2nd ed. 2002).
79
 Id at 903. (O’Connor, J. concurring in the judgment), cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
80
 Id. at 902. (O’Connor, J. concurring in the judgment) cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
81
 Id. at 908-909. (Blackmun, J. dissenting), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1213 (2nd ed. 2002).
82
 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
83
 Id.
84
 Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule: The Failure of
the Oregon Employment Division v. Smith "Hybrid Rights Exception," 108 Penn.
St. L. Rev. 573, 581 (2003).
85
 Id.
86
 Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell, M.,
Accommodation of Religion: An Update and a Response to the Critics, 60 The
George Washington Law Review 685, 726 (1992).
87
 Id. at 482, citing McCoy, T., A Coherent Methodology for First Amendment
Speech and Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1352
(1995).
88
 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
89
 Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II Ducat, C., Constitutional
Interpretation 1180 & 1191 (2000). See also Sullivan, K., Religion and Liberal
Democracy, 59 The University of Chicago Law Review 195, 216 (1992).
90
 Id. at 502, citing McConnell, M., Religious Freedom at a Crossroads, 59 The
University of Chicago Law Review 115, 139 (1992).
91
 Id., citing Sullivan, K., Religion and Liberal Democracy, 59 The University of
Chicago Law Review 195, 216 (1992).
92
 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
93
 Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent
Methodology for First Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
94
 Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v. Gobitis, 310
U.S. 586 (1940); and Employment Division, Oregon Department of Human
Resources v. Smith, 494 U.S. 872 (1990).
95
 Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent
Methodology for First Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
96
 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
97
 Bodensteiner, Ivan E., The Demise of the First Amendment As a Guarantor of
Religious Freedom, 27 Whittier L. Rev. 415, 419 (2005).
98
 Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule: The Failure of
the Oregon Employment Division v. Smith "Hybrid Rights Exception", 108 Penn.
St. L. Rev. 573, 584 (2003).
99
 See Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 620-621 (4th ed. 1997).
100
 Id.
101
 Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S., The
Resurrection of Religious Freedom, 107 Harvard Law Review 118 (1993).
102
 42 U.S.C. §2000bb.
103
 42 U.S.C. §2000bb, Sec. (a) (4), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1216 (2nd ed. 2002).
104
 Id.
105
 Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed.
2002).
106
 City of Boerne v. Flores, 521 U.S. 507 (1997), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).
107
 City of Boerne clearly invalidated the RFRA as applied to state and local
governments, but did not resolve the constitutionality of the law as applied to the
federal government. Some federal courts have expressly ruled that the RFRA is
constitutional as applied to the federal government. See Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).
108
 See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr., Religious
Freedom: History, Cases, and Other Materials on the Interaction of Religion and
Government 531 (2001).
109
 Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 278 (1993).
110
 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
111
 Estrada v. Escritor, 455 Phil. 411, 526 (2003).
112
 Id. at 527, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 61-
62 (1980).
113
 Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
114
 343 U.S. 306 (1952).
115
 463 U.S. 783 (1983).
116
 McConnell, M., Accommodation of Religion: An Update and a Response to the
Critics, 60 The George Washington Law Review 685, 715 (1992).
117
 333 U.S. 203 (1948).
118
 Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing Buzzard, L., Ericsson, S.,
The Battle for Religious Liberty 61-63 (1980).
119
 Kmiec, Douglas W. & Presser, Stephen B., Individual Rights and the American
Constitution 105 (1998).
120
 Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited in
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed.
2002).
121
 See, e.g. Michael McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. Chi. L. Rev. 1109 (1990); Jesse H. Choper, The Rise and
Decline of the Constitutional Protection of Religious Liberty, 70 Neb. L. Rev. 651
(1991) (criticizing Smith). Cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1213 (2nd ed. 2002).
122
 McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harvard Law Review 1410, 1416-1417 (1990).
123
 Constitution, (1935), Art. VI, Sec. 22, par 3(b); Constitution, (1973), Art. VI,
Sec. 22(3); and Constitution, (1987), Art.VI, Sec. 28(3).
124
 Constitution, (1935), Art. VI, Sec. 23(3); Constitution, (1973), Art. VIII, Sec.
18(2); and Constitution, (1987), Art. VI, Sec. 29(2).
125
 Constitution, (1935) Art. XIII, Sec. 5; Constitution, (1973), Art. XV, Sec. 8(8);
and Constitution, (1987), Art. XIV, Sec. 3(3).
126
 "Divine Providence" in the 1935 and 1973 Constitutions; and "Almighty God"
in the 1987 Constitution.
127
 Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
128
 Id. at 564 and 575.
129
 Id. at 563-564.
130
 Id. at 574. As stated in the Decision dated August 4, 2003:

Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in
explaining the nature, extent and limitations of these clauses. However, a
close scrutiny of these cases would also reveal that while U.S.
jurisprudence on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the most part, benevolent
neutrality which gives room for accommodation. Id. at 536.
131
 101 Phil. 386 (1957).
132
 G.R. No. 95770, March 1, 1993, 219 SCRA 256.
133
 Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this prior case,
petitioners were also members of the Jehovah’s Witnesses. They challenged a
Department Order issued by the Secretary of Education implementing Republic
Act No. 1265 which prescribed compulsory flag ceremonies in all public schools.
In violation of the Order, petitioner’s children refused to salute the Philippine flag,
sing the national anthem, or recite the patriotic pledge, hence they were expelled
from school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious
belief. The Court denied exemption, and sustained the expulsion of petitioners’
children, on the ground that "If the exercise of religious belief clashes with the
established institutions of society and with the law, then the former must yield to
the latter."
134
 Id. at 270-271.
135
 G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also Basa v.
Federacion Obrera, G.R. No. L-27113, November 19, 1974, 61 SCRA 93;
Gonzalez v. Central Azucarera de Tarlac Labor Union, G.R. No. L-38178,
October 3, 1985, 139 SCRA 30.
136
 Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, September 12,
1974, 59 SCRA 54, 74-75. The Court stressed that "(a)lthough the exemption
may benefit those who are members of religious sects that prohibit their
members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect." In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden imposed by union
security agreements which Congress itself also imposed through the Industrial
Peace Act. The Court concluded the issue of exemption by citing Sherbert which
laid down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interest"
intervenes. The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption." Id.
137
 Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).
138
 Id. at 529-531.
139
 98 U.S. 145 (1878).
140
 See Kmiec, Douglas, W, & Presser, Stephen B, Individual Rights and the
American Constitution 105 (1998). In this case, the issue was whether a general
federal law criminalizing polygamy can be applied to a Mormon whose religion
included that practice. The U.S. Court, in affirming Reynold’s conviction, ruled
that the prohibition of polygamy was justified by the importance of monogamous,
heterosexual marriage, a practice upon which society may be said to be built,
and perhaps even upon which democratic traditions depend. Thus, according to
the U.S. Court, this important societal interest prevails over the countervailing
religious practice of the Mormons.
141
 A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.
142
 494 U.S. 872 (1990). (O’Connor, J. concurring) According to Justice
O’Connor:

…Even if, as an empirical matter, a government’s criminal laws might

usually serve a compelling interest in health, safety, or public order, the
First Amendment at least requires a case-by-case determination of the
question, sensitive to the facts of each particular claim… Given the range
of conduct that a State might legitimately make criminal, we cannot
assume, merely because a law carries criminal sanctions and is generally
applicable, that the First Amendment never requires the State to grant a
limited exemption for religiously motivated conduct.

Parenthetically, J. Brennan, J. Marshall, and J. Blackmun joined Parts I

and II of Justice O’Connor’s opinion, including the above-cited portions,
but did not concur in the judgment.
143
 See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty
Versus Equality, 1993 B. Y. U. L. Rev. 7, 12-13 (1993).
144
 Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).
145
 Id., citing McConnell, M., Religious Freedom at a Crossroads, 59(1) Univ. of
Chicago Law Review 115, 169 (1992).
146
 Dated May 6, 2005, by retired Associate Justice Romulo S. Quimbo, rollo, p.
714.
147
 Rollo, pp. 687-689.
148
 OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing Constitution, Art. II,
Sec. 12, which provides: "The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution."
149
 Id. at 21, citing the Family Code, Art. 149, which provides: "The family, being
the foundation of the nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and
no custom, practice or agreement destructive of the family shall be recognized or
given effect."
150
 Id. at 21-22.
151
 See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).
152
 OSG Memorandum-In-Intervention, rollo, p. 23.
153
 Id. at 26.
154
 Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of the decision
addressed the issue of morality raised by Mme. Justice Ynares-Santiago and Mr.
Justice Vitug, who also had a separate opinion, albeit differing in conclusion.
155
 Id. at 580.
156
 Id. at 586-588.
157
 Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis
supplied)
158
 Title Six of the Revised Penal Codeis entitled Crimes against Public Morals
and includes therein provisions on gambling and betting. (emphasis supplied)
159
 The New Civil Code provides, viz:

"Article 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good ustoms or prejudicial to a third person with a
right recognized by law.

Article 21. Any person who willfully causes loss or injury to another in manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.

Article 1306. The contran/a>blish such stipulations, clauses, terms and

conditions as they may deem convenient, provided that are not contrary to law,
morals, good customs, public order, or public policy.

Article 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy; x x x" (emphases supplied)
160
 Article XIV, Section 3 provides in relevant part, viz:

(1)All educational institutions shall include the study of the Constitution as

part of the curricula.

(2)They shall inculcate patriotism and nationalism, foster love of humanity,

respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational
efficiency. (emphasis supplied)
 161
 Estrada v. Escritor, 455 Phil. 411, 586 (2003).
162
 Id. at 589-590.
163
 Id. at 591.
164
 Id. at 592.
165
 Id. at 593.
166
 Id. at 593-595.
167
 Id. at 594-595.
168
 Id. at 595-596.
169
 Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus
Equality, 1993 B. Y. U. L. Rev. 7, 12 (1993).
170
 Id. at 51.
171
 Estrada v. Escritor, 455 Phil. 411, 574 (2003).
172
 OSG Memorandum-In-Intervention, rollo, p. 708.
173
 See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).
174
 Id. at 529-531.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

With due respect, I am unable to agree with the finding of the majority that "in this
particular case and under these particular circumstances, respondent Escritor’s
conjugal arrangement does not constitute disgraceful and immoral conduct" and its
decision to dismiss the administrative complaint filed by petitioner against respondent
Soledad S. Escritor.
The issue in this case is simple. What is the meaning or standard of "disgraceful and
immoral conduct" to be applied by the Supreme Court in disciplinary cases involving
court personnel?

The degree of morality required of every employee or official in the public service has
been consistently high. The rules are particularly strict when the respondent is a Judge
or a court employee.1 Even where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no untoward conduct involving
public officers should be left without proper and commensurate sanction. 2 The
compassion is shown through relatively light penalties. Never, however, has this Court
justified, condoned, or blessed the continuation of an adulterous or illicit relationship
such as the one in this case, after the same has been brought to its attention.

Is it time to adopt a more liberal approach, a more "modern" view and a more
permissive pragmatism which allow adulterous or illicit relations to continue provided the
job performance of the court employee concerned is not affected and the place and
order in the workplace are not compromised? When does private morality involving a
court employee become a matter of public concern?

The Civil Service Law punishes public officers and employees for disgraceful and
immoral conduct.3 Whether an act is immoral within the meaning of the statute is not to
be determined by respondent’s concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact perform, the act
which it condemns.4

The ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards. For those in the service of the Government, provisions of law and
court precedents also have to be considered. The task is elusive.

The layman’s definition of what is "moral" pertains to excellence of character or

disposition. It relates to the distinction between right and wrong; virtue and vice; ethical
praise or blame. Moral law refers to the body of requirements in conformity to which
virtuous action consists. Applied to persons, it is conformity to the rules of morality,
being virtuous with regards to moral conduct. 5

That which is not consistent with or not conforming to moral law, opposed to or violating
morality, and now, more often, morally evil or impure, is immoral. Immoral is the state of
not being virtuous with regard to sexual conduct. 6

The term begs the definition. Hence, anything contrary to the standards of moral
conduct is immoral. A grossly immoral act must be so corrupt and false as to constitute
a criminal act or so unprincipled as to be reprehensible to a high degree. 7

Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the
fringes or boundary limits of what is morally acceptable and what is unacceptably
wrong, the concept of immorality tends to shift according to circumstances of time,
person, and place. When a case involving the concept of immorality comes to court, the
applicable provisions of law and jurisprudence take center stage.

Those who choose to tolerate the situation where a man and a woman separated from
their legitimate spouses decide to live together in an "ideal" and yet unlawful union state
– or more specifically, those who argue that respondent’s cohabiting with a man married
to another woman is not something which is willful, flagrant, or shameless – show a
moral indifference to the opinion of the good and respectable members of the
community in a manner prejudicial to the public service.

Insofar as concepts of morality are concerned, various individuals or cultures may

indeed differ. In certain countries, a woman who does not cover herself with a burka
from head to foot may be arrested for immoral behavior. In other countries, near nudity
in beaches passes by unnoticed. In the present case, the perceived fixation of our
society over sex is criticized. The lesser degree of condemnation on the sins of
laziness, gluttony, vanity, selfishness, avarice and cowardice is decried as
discriminatory.

The issue in this case is legal and not philosophical. It is a limited one. Is respondent
Soledad S. Escritor guilty of "disgraceful and immoral" conduct in the context of the Civil
Service Law? Are there any sanctions that must be imposed?

We cannot overlook the fact that respondent Escritor would have been convicted for a
criminal offense if the offended party had been inclined and justified to prosecute her
prior to his death in 1998. Even now, she is a co-principal in the crime of concubinage.
A married woman who has sexual intercourse with a man not her husband, and the man
who has carnal knowledge of her knowing her to be married, commit the crime of
adultery.8 Abandonment by the legal husband without justification does not exculpate
the offender; it merely mitigates the penalty.

The concubine with whom a married man cohabits suffers the penalty of destierro.9 It is
true that criminal proceedings cannot be instituted against persons charged with
adultery or concubinage except upon complaint of the offended party. 10 This does not
mean that no actionable offense has been committed if the offended party does not
press charges. It simply cannot be prosecuted. The conduct is not thereby approved,
endorsed or commended. It is merely tolerated.

The inescapable fact in this case is that acts defined as criminal under penal law have
been committed.

There are experts in Criminal Law who believe that the codal provisions on adultery and
concubinage are terribly outmoded and should be drastically revised. However, the task
of amendment or revision belongs to Congress, and not to the Supreme Court.

Our existing rule is that an act so corrupt or false as to constitute a criminal act is
"grossly immoral."11 It is not merely "immoral." Respondent now asks the Court to go all
the way to the opposite extreme and condone her illicit relations with not even an
admonition or a slight tap on the wrist.

I do not think the Court is ready to render a precedent-setting decision to the effect that,
under exceptional circumstances, employees of the judiciary may live in a relationship
of adultery or concubinage with no fear of any penalty or sanction and that after being
discovered and charged, they may continue the adulterous relationship until death ends
it. Indeed, the decision in this case is not limited to court interpreter Soledad Escritor. It
is not a pro hac vice ruling. It applies to court employees all over the country and to
everybody in the civil service. It is not a private ruling but one which is public and far-
reaching in its consequences.

In the 1975 case of De Dios v. Alejo,12 the Court applied compassion and empathy but
nonetheless recognized as most important a mending of ways through a total breaking
of relationships. The facts in that case are strikingly similar to those in this case. Yet, the
Court required a high degree of morality even in the presence of apparently exculpating
circumstances. It was stated:

While it is permissible to view with human understanding and compassion a situation

like that in which respondents find themselves, the good of the service and the degree
of morality which every official and employee in the public service must observe, if
respect and confidence are to be maintained by the government in the enforcement of
the law, demand that no untoward conduct on his part, affecting morality, integrity and
efficiency, while holding office should be left without proper and commensurate
sanction, all attendant circumstances taken into account. In the instant case, We cannot
close our eyes to the important considerations that respondents have rendered
government service for more than thirty-three and twenty-five years, respectively, and
that there is no showing that they have ever been found guilty of any administrative
misconduct during all those periods. In the case of respondent Alejo, it seems rather
sadistic to make her suffer the extreme penalty of dismissal from the service after she
had taken care of her co-respondent’s four children, giving them the needed love and
attention of a foster mother after they were completely abandoned by their errant and
unfaithful natural mother. Even respondent Marfil, if to a lesser degree, is deserving of
compassion. Most importantly, respondents have amply demonstrated that they
recognize their mistake and have, therefore, actually mended their ways by totally
breaking their relationship complained of, in order to conform with the
imperatives of public interest. (Emphasis supplied)

The standards for those in the judicial service are quite exacting.

The Court has ruled that in the case of public servants who are in the judiciary, their
conduct and behavior, from the presiding judge to the lowliest clerk, must not only
be characterized by propriety and decorum, but above all else, must be above
suspicion.13

In Burgos v. Aquino,14 it was ruled:

The Code of Judicial Ethics mandates that the conduct of court personnel must be free
from any whiff of impropriety, not only with respect to his duties in the judicial branch but
also to his behavior outside the court as a private individual. There is no dichotomy of
morality; a court employee is also judged by his private morals. These exacting
standards of morality and decency have been strictly adhered to and laid down by the
Court to those in the service of the judiciary. Respondent, as a court stenographer, did
not live up to her commitment to lead a moral life. Her act of maintaining relations with
Atty. Burgos speaks for itself.

Respondent Aquino was a court stenographer who was suspended for six months for
maintaining illicit relations with the husband of complainant Virginia E. Burgos. The
Court therein stated that a second offense shall result in dismissal.

We should not lose sight of the fact that the judicial system over which it presides is
essentially composed of human beings who, as such, are naturally prey to weakness
and prone to errors. Nonetheless, in Ecube-Badel v. Badel,15 we imposed on
respondent a suspension for six months and one day to one year with warning of
dismissal should the illicit relations be repeated or continued.

In Nalupta v. Tapec,16 a deputy sheriff was suspended, also for six months, for having
illicit relations with a certain Cristian Dalida who begot a son by him. His wife
complained and neighbors confirmed that Tapec was frequently seen leaving the house
of Consolacion Inocencio in the morning and returning to it in the afternoon. Tapec and
Inocencio begot two children. Consistently with the other cases, we imposed the penalty
of suspension for the first offense with the graver penalty of dismissal for a second
offense.

The earlier case of Aquino v. Navarro17 involved an officer in the Ministry of Education,

Culture and Sports who was abandoned by her husband a year after their marriage and
who lived alone for eighteen years with their child. Pretending that she sincerely
believed her husband to have died, she entered into a marital relationship with Gonzalo
Aquino and had children by him in 1968 and 1969. Eighteen days before their third child
was born on May 25, 1975, the two decided to get married. Notwithstanding the illicit
relationship which blossomed into a bigamous marriage, the full force of the law was not
applied on her, "considering the exceptional circumstances that befell her in her quest
for a better life." Still, a penalty of six months suspension was imposed with a warning
that "any moral relapse on her part will be severely dealt with."

Times are changing. Illicit sex is now looked upon more kindly. However, we should not
completely disregard or overlook a relationship of adultery or concubinage involving a
court employee and not order it to be terminated. It should not ignore what people will
say about our moral standards and how a permissive approach will be used by other
court employees to freely engage in similarly illicit relationship with no fear of
disciplinary punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing
marriages with their respective legitimate spouses when they decided to live together.
To give an aura of regularity and respectability to what was undeniably an adulterous
and, therefore, immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on July 28, 1991 the
"Declaration of Pledging Faithfulness" to make their relationship what they alleged it
would be – a binding tie before Jehovah God.

In this case, respondent is charged not as a Jehovah’s Witness but in her capacity as a
court employee. It is contended that respected elders of the Jehovah’s Witnesses
sanction "an informal conjugal relationship" between respondent and her marital partner
for more than two decades, provided it is characterized by faithfulness and devotion to
one another. However, the "informal conjugal relationship" is not between two single
and otherwise eligible persons where all that is missing is a valid wedding ceremony.
The two persons who started to live together in an ostensible marital relationship are
married to other persons.

We must be concerned not with the dogmas or rules of any church or religious sect but
with the legal effects under the Civil Service Law of an illicit or adulterous relationship
characterized by the facts of this case.

There is no conflict in this case between the dogmas or doctrines of the Roman Catholic
Church and those of the Jehovah’s Witnesses or any other church or denomination. The
perceived conflict is non-existing and irrelevant.

The issue is legal and not religious. The terms "disgraceful" and "immoral" may be
religious concepts, but we are concerned with conduct which under the law and
jurisprudence is proscribed and, if perpetrated, how it should be punished.

Respondent cannot legally justify her conduct by showing that it was morally right by the
standards of the congregation to which she belongs. Her defense of freedom of religion
is unavailing. Her relationship with Mr. Quilapio is illicit and immoral, both under the
Revised Administrative Code18 and the Revised Penal Code,19 notwithstanding the
supposed imprimatur given to them by their religion.

The peculiar religious standards alleged to be those of the sect to which respondent
belongs can not shield her from the effects of the law. Neither can her illicit relationship
be condoned on the basis of a written agreement approved by their religious
community. To condone what is inherently wrong in the face of the standards set by law
is to render nugatory the safeguards set to protect the civil service and, in this case, the
judiciary.

The Court cannot be the instrument by which one group of people is exempted from the
effects of these laws just because they belong to a particular religion. Moreover, it is the
sworn mandate of the Court to supervise the conduct of an employee of the judiciary,
and it must do so with an even hand regardless of her religious affiliation.
I find that respondent’s "Declaration of Pledging Faithfulness" does nothing for her
insofar as this administrative matter is concerned, for written therein are admissions
regarding the legal impediments to her marrying Quilapio. In the said document, she
even pledged to seek all avenues to obtain legal recognition by civil authorities of her
union with Quilapio.20 However, the record is silent as to any effort on respondent’s part
to effect this covenant.

The evidence shows that respondent repeatedly admitted the existence of the legal
infirmities that plague her relationship with Quilapio. 21 As a court interpreter, she is an
integral member of the judiciary and her service as such is crucial to the administration
of justice. Her acts and omissions constitute a possible violation of the law – the very
same law that she is sworn to uphold as an employee of the judiciary. How can she
work under the pretense of being a contributing force to the judicial system if she herself
is committing acts that may constitute breaking the law?

Respondent invokes her constitutional right to religious freedom. The separation of

church and state has been inviolable in this jurisdiction for a century. However, the
doctrine is not involved in this case.22 Furthermore, the legislature made cohabitation
with a woman who is not one’s wife a crime through the enactment of the Revised Penal
Code.23 The legislative power has also seen fit to enact the Civil Service Law and has
given said law general application.

The argument that a marital relationship is the concern of religious authorities and not
the State has no basis.

In Reynolds v. United States,24 the U.S. Supreme Court stated:

It is impossible to believe that the constitutional guaranty of religious freedom was

intended to prohibit legislation in respect to this most important feature of social life.
Marriage, while from its very nature a sacred obligation, is, nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society may be
said to be built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal.

The strengthening of marriage ties and the concomitant hostility to adulterous or illicit
marital relations is a primary governmental concern. It has nothing to do with the
particular religious affiliations of those affected by legislation in this field.

The relations, duties, obligations and consequences of marriage are important to the
morals and civilization of a people and to the peace and welfare of society. 25 Any
attempt to inject freedom of religion in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must fail.

The U.S. Supreme Court in the above-cited case of Reynolds v. United States 26 upheld
federal legislation prohibiting bigamy and polygamy in territories of the United States,
more specifically Utah. Members of the Mormon Church asserted that the duty to
practice polygamy was an accepted doctrine of their church. In fact, Mormons had
trekked from the regular States of the Union to what was then a mere Territory in order
to practice their religious beliefs, among them polygamy. The Court declared that while
it protected religious belief and opinion, it did not deprive Congress of the power to
reach actions violative of social duties or subversive of good order. Polygamy was
outlawed even for Mormons who considered it a religious obligation.

We must not exempt illegal conduct or adulterous relations from governmental

regulation simply because their practitioners claim it is part of their free exercise of
religious profession and worship.

Indeed, the Court distinguishes between religious practices, including the seemingly
bizarre, which may not be regulated, and unacceptable religious conduct which should
be prevented despite claims that it forms part of religious freedom.

In Ebralinag v. Division Superintendent of Schools, 27 we validated the exemption of

Jehovah’s Witnesses from coerced participation in flag ceremonies of public schools.
Following the ruling in West Virginia v. Barnette, 28 we declared that unity and loyalty, the
avowed objectives of flag ceremonies, cannot be attained through coercion. Enforced
unity and loyalty is not a good that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.

The exemption from participation in flag ceremonies cannot be applied to the tolerance
of adulterous relationships by court personnel in the name of religious freedom.

A clear and present danger of a substantive evil, destructive to public morals, is a

ground for the reasonable regulation of the free exercise and enjoyment of religious
profession.29 In addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the judiciary.

Jurisprudence on immoral conduct of employees in the civil service has been

consistent. There is nothing in this case that warrants a departure from precedents. We
must not sanction or encourage illicit or adulterous relations among government
employees.

Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah’s

Witness. Exemptions granted under our Muslim Laws to legitimate followers of Islam do
not apply to them.30 The Court has no legislative power to place Jehovah’s Witness in
the same legal category as Muslims.

In Bucatcat v. Bucatcat,31 it was held that conduct such as that demonstrated by the
respondent is immoral and deserving of punishment. For such conduct, the respondent,
another court interpreter, was dismissed from the service. It was held:

Every employee of the judiciary should be an example of integrity, uprightness and

honesty. Like any public servant, he must exhibit the highest sense of honesty and
integrity not only in the performance of his official duties but in his personal and private
dealings with other people, to preserve the court’s good name and standing. It cannot
be overstressed that the image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court employees have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of courts of justice.

All those who work in the judiciary are bound by the most exacting standards of ethics
and morality to maintain the people’s faith in the courts as dispensers of justice.
In Liguid v. Camano,32 it was ruled:

Surely, respondent’s behavior of living openly and scandalously for over two (2)
decades with a woman not his wife and siring a child by her is representative of the
gross and serious misconduct penalized by the ultimate penalty of dismissal under
Section 22 (c), Rule XIV of the Omnibus Rules Implementing Book IV of Executive
Order No. 292 otherwise known as the Revised Administrative Code of 1987. As
defined, misconduct is a transgression of some established or definite rule of action,
more particularly, unlawful behavior or gross negligence by the public officer.
Respondent’s conduct is an example of the kind of gross and flaunting misconduct that
so quickly and surely corrodes the respect for the courts without which government
cannot continue and that tears apart the bonds of our polity.

Earlier, in Navarro v. Navarro,33 the penalty of suspension was imposed on a court

employee for maintaining illicit relations with a woman not his wife, thus:

Time and again we have stressed adherence to the principle that public office is a public
trust. All government officials and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. This constitutional mandate should always
be in the minds of all public servants to guide them in their actions during their entire
tenure in the government service. The good of the service and the degree of morality
which every official and employee in the public service must observe, if respect and
confidence are to be maintained by the Government in the enforcement of the law,
demand that no untoward conduct on his part, affecting morality, integrity and efficiency
while holding office should be left without proper and commensurate sanction, all
attendant circumstances taken into account.

The exacting standards of ethics and morality imposed upon court judges and court
employees are required to maintain the people’s faith in the courts as dispensers of
justice, and whose image is mirrored by their actuations. As the Court eloquently stated
through Madame Justice Cecilia Muñoz-Palma:

[T]he image of the court of justice is necessarily mirrored in the conduct, official or
otherwise, of the men and woman who work thereat, from the judge to the least and
lowest of its personnel – hence, it becomes the imperative sacred duty of each and
everyone in the court to maintain its good name and standing as a true temple of
justice.34

The high degree of moral uprightness that is demanded of employees of the

government entails many sacrifices that are peculiar to the civil service. By aspiring to
these positions, government employees are deemed to have submitted themselves to
greater scrutiny of their conduct, all in the pursuit of a professional civil service. The
Court has repeatedly applied these principles in analogous cases. 35

Immorality is punishable by suspension of six (6) months and one day to one (1) year
for the first offense and dismissal for the second offense. 36 Considering that
respondent’s misconduct is in the nature of a continuing offense, it must be treated as a
first offense, and her continued cohabitation with Luciano E. Quilapio, Jr. must be
deemed a second offense, which will warrant the penalty of dismissal.

ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality

and disgraceful conduct and should be SUSPENDED for a period of Six (6) months and
One day without pay, with a warning that the continuance of her illicit cohabitation with
Luciano D. Quilapio, Jr. shall be deemed a second offense which shall warrant the
penalty of dismissal.

CONSUELO YNARES-SANTIAGO
Associate Justice

G.R. No. 164785               April 29, 2009

ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.

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

G.R. No. 165636               April 29, 2009

ELISEO F. SORIANO Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G.
ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as
members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB Respondents.

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and
Television Review and Classification Board (MTRCB) in connection with certain
utterances he made in his television show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae
ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of
the Iglesia ni Cristo (INC),2 against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in petitioner’s remark, was
then a minister of INC and a regular host of the TV program Ang Tamang
Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004
in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang
Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of

August 16, 2004, preventively suspended the showing of Ang Dating Daan program for
20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating
the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.5 The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the
adjudication board recuse themselves from hearing the case. 6 Two days after, however,
petitioner sought to withdraw7 his motion for reconsideration, followed by the filing with
this Court of a petition for certiorari and prohibition, 8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding

respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, "Ang Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.

SO ORDERED.9

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT

[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR

THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED

WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH,
AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES

ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN
AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES
NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and
veritably been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not
expressly authorize the MTRCB to issue preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative,

investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may
be conferred by the Constitution or by statute. 12 They have in fine only such powers or
authority as are granted or delegated, expressly or impliedly, by law. 13 And in
determining whether an agency has certain powers, the inquiry should be from the law
itself. But once ascertained as existing, the authority given should be liberally
construed.14
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise
of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x

production, x x x 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 wrong or crime
such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the

attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s
authority and functions expressly set forth in PD 1986, more particularly under its Sec.
3(d), as quoted above, which empowers the MTRCB to "supervise, regulate, and grant,
deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by
television."

Surely, the power to issue preventive suspension forms part of the MTRCB’s express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
authority subsumed in or implied from such mandate. Any other construal would render
its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a

preliminary step in an administrative investigation. 15 And the power to discipline and
impose penalties, if granted, carries with it the power to investigate administrative
complaints and, during such investigation, to preventively suspend the person subject of
the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself
to impose preventive suspension through the medium of the IRR of PD 1986. It is true
that the matter of imposing preventive suspension is embodied only in the IRR of PD
1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the

case, and in order to prevent or stop further violations or for the interest and welfare of
the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20)
days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without

more, would not work to deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is expressly empowered by statute to
regulate and supervise television programs to obviate the exhibition or broadcast of,
among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioner’s
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended
the effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension
was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCB’s duty of regulating or supervising television programs, pending a determination
of whether or not there has actually been a violation. In the final analysis, Sec. 3,
Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed,
albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the
MTRCB to functions within the literal confines of the law, would give the agency little
leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly
intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we
reiterate, provides, "To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x x." Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be inferred or are
implicit in the wordings or conferred by necessary or fair implication of the enabling
act.17 As we held in Angara v. Electoral Commission, when a general grant of power is
conferred or a duty enjoined, every particular power necessary for the exercise of one
or the performance of the other is also conferred by necessary implication. 18 Clearly, the
power to impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The
scope of the MTRCB’s authority extends beyond motion pictures. What the acronym
MTRCB stands for would suggest as much. And while the law makes specific reference
to the closure of a television network, the suspension of a television program is a far
less punitive measure that can be undertaken, with the purpose of stopping further
violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective
should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive suspension

order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed
order after petitioner, in response to a written notice, appeared before that Board for a
hearing on private respondents’ complaint. No less than petitioner admitted that the
order was issued after the adjournment of the hearing, 19 proving that he had already
appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986,
preventive suspension shall issue "[a]ny time during the pendency of the case." In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly
violated PD 198620 and of administrative complaints that had been filed against him for
such violation.21

At any event, that preventive suspension can validly be meted out even without a
hearing.22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer
the criticisms coming from the INC ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all
persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed." 23 It guards against
undue favor and individual privilege as well as hostile discrimination. 24 Surely, petitioner
cannot, under the premises, place himself in the same shoes as the INC ministers, who,
for one, are not facing administrative complaints before the MTRCB. For another, he
offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCB’s disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains
temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the fact that
the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC
ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this
case, simply too different to even consider whether or not there is a prima facie
indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered
was religious speech, adding that words like "putang babae" were said in exercise of his
religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The
section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any

particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not
automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech.
Even petitioner’s attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible
defense or refutation of the alleged lies being spread by a rival religious group. They
simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his
detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue
dovetails with those challenging the three-month suspension imposed under the
assailed September 27, 2004 MTRCB decision subject of review under G.R. No.
165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground that the decision violates, apart from
his religious freedom, his freedom of speech and expression guaranteed under Sec. 4,
Art. III of the Constitution, which reads:

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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion

pictures come within the broad protection of the free speech and expression
clause.25 Each method though, because of its dissimilar presence in the lives of people
and accessibility to children, tends to present its own problems in the area of free
speech protection, with broadcast media, of all forms of communication, enjoying a
lesser degree of protection.26 Just as settled is the rule that restrictions, be it in the form
of prior restraint, e.g., judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits, prosecution
for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 27 The freedom of
expression, as with the other freedoms encased in the Bill of Rights, is, however, not
absolute. It may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially
private concern.28 In the oft-quoted expression of Justice Holmes, the constitutional
guarantee "obviously was not intended to give immunity for every possible use of
language."29 From Lucas v. Royo comes this line: "[T]he freedom to express one’s
sentiments and belief does not grant one the license to vilify in public the honor and
integrity of another. Any sentiments must be expressed within the proper forum and with
proper regard for the rights of others." 30

Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-

defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems." In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause.32 A speech would fall under the unprotected type if the utterances
involved are "no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." 33 Being of little or no value,
there is, in dealing with or regulating them, no imperative call for the application of the
clear and present danger rule or the balancing-of-interest test, they being essentially
modes of weighing competing values,34 or, with like effect, determining which of the
clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography,
false or misleading advertisement, insulting or "fighting words", i.e., those which by their
very utterance inflict injury or tend to incite an immediate breach of peace and
expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with
respect to the average child. Hence, it is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition
of obscenity that would apply to all cases, but nonetheless stated the ensuing
observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive." x x x What remains clear
is that obscenity is an issue proper for judicial determination and should be treated on a
case to case basis and on the judge’s sound discretion. 35

Following the contextual lessons of the cited case of Miller v. California, 36 a patently
offensive utterance would come within the pale of the term obscenity should it appeal to
the prurient interest of an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the

case reveal that to an average adult, the utterances "Gago ka talaga x x x, masahol ka
pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba!" may not constitute obscene but
merely indecent utterances. They can be viewed as figures of speech or merely a play
on words. In the context they were used, they may not appeal to the prurient interests of
an adult. The problem with the challenged statements is that they were uttered in a TV
program that is rated "G" or for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds. The term "putang
babae" means "a female prostitute," a term wholly inappropriate for children, who could
look it up in a dictionary and just get the literal meaning, missing the context within
which it was used. Petitioner further used the terms, "ang gumagana lang doon yung
ibaba," making reference to the female sexual organ and how a female prostitute uses it
in her trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to
why Sandoval is different from a female prostitute and the reasons for the dissimilarity.
And upon learning the meanings of the words used, young minds, without the guidance
of an adult, may, from their end, view this kind of indecent speech as obscene, if they
take these words literally and use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the opportunity to hear petitioner’s
words, when speaking of the average person in the test for obscenity, we are speaking
of the average child, not the average adult. The average child may not have the adult’s
grasp of figures of speech, and may lack the understanding that language may be
colorful, and words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such. In this
sense, we find petitioner’s utterances obscene and not entitled to protection under the
umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily accessible to
children. With respect to the young minds, said utterances are to be treated as
unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich
source of persuasive lessons. Foremost of these relates to indecent speech without
prurient appeal component coming under the category of protected speech depending
on the context within which it was made, irresistibly suggesting that, within a particular
context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue
by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica
Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as "patently offensive" and
"indecent" under a prohibiting law, though not necessarily obscene. FCC added,
however, that its declaratory order was issued in a "special factual context," referring, in
gist, to an afternoon radio broadcast when children were undoubtedly in the audience.
Acting on the question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the broadcast
medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the monologue
would be protected speech in other contexts, albeit it did not expound and identify a
compelling state interest in putting FCC’s content-based regulatory action under
scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of

protected speech that is content-based and that which is content-neutral. A content-
based restraint is aimed at the contents or idea of the expression, whereas a content-
neutral restraint intends to regulate the time, place, and manner of the expression under
well-defined standards tailored to serve a compelling state interest, without restraint on
the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the
backdrop of the following interplaying factors: First, the indecent speech was made via
television, a pervasive medium that, to borrow from Gonzales v. Kalaw
Katigbak,42 easily "reaches every home where there is a set [and where] [c]hildren will
likely be among the avid viewers of the programs therein shown"; second, the broadcast
was aired at the time of the day when there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his speech on a "G" or "for general
patronage" rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a
show for general patronage is "[s]uitable for all ages," meaning that the "material for
television x x x in the judgment of the BOARD, does not contain anything unsuitable for
children and minors, and may be viewed without adult guidance or supervision." The
words petitioner used were, by any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in petitioner’s utterances on a general-
patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, 43 false
or misleading advertisement,44 advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would
submit, exclusive or carved in stone. Without going into specifics, it may be stated
without fear of contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another
instance of unprotected speech, created by the necessity of protecting the welfare of
our children. As unprotected speech, petitioner’s utterances can be subjected to
restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be
grave and imminent.45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test
is uncalled for under the premises. The doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the printed or spoken words may not be
subject to prior restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the government has the
power to prohibit.46 Under the doctrine, freedom of speech and of press is susceptible of
restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in
the context of prosecutions for rebellion and other crimes involving the overthrow of
government.47 It was originally designed to determine the latitude which should be given
to speech that espouses anti-government action, or to have serious and substantial
deleterious consequences on the security and public order of the community. 48 The
clear and present danger rule has been applied to this jurisdiction. 49 As a standard of
limitation on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a
court to release a defendant from liability the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster. 50 As we observed in Eastern Broadcasting
Corporation, the clear and present danger test "does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums." 51

To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of "proximity and degree"
the Court, however, in several cases—Ayer Productions v. Capulong 52 and Gonzales v.
COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the
legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and assembly
in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,"54 then the "balancing of interests" test can be applied.

The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented. x x x We must, therefore, undertake the
"delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment
of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values

and individual interests competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has been called the "balancing-of-
interests" test which has found application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious
and detailed consideration of the interplay of interests observable in a given situation or
type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional

power restricting the individual’s freedom, and the social importance and value of the
freedom so restricted, "are to be judged in the concrete, not on the basis of
abstractions," a wide range of factors are necessarily relevant in ascertaining the point
or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not
the persons affected are few; (c) the value and importance of the public interest sought
to be secured by the legislation––the reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether the specific restriction decreed by
Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may
be achieved by some other measure less restrictive of the protected freedom. 55

This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory
that it is the court’s function in a case before it when it finds public interests served by
legislation, on the one hand, and the free expression clause affected by it, on the other,
to balance one against the other and arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom, then the court
will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve
appropriate and important interests.57 To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-
month suspension was slapped on him for breach of MTRCB rules. In this setting, the
assertion by petitioner of his enjoyment of his freedom of speech is ranged against the
duty of the government to protect and promote the development and welfare of the
youth.

After a careful examination of the factual milieu and the arguments raised by petitioner
in support of his claim to free speech, the Court rules that the government’s interest to
protect and promote the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioner’s prayer to continue as program
host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is
the freedom of speech or expression, for without the enjoyment of such right, a free,
stable, effective, and progressive democratic state would be difficult to attain. Arrayed
against the freedom of speech is the right of the youth to their moral, spiritual,
intellectual, and social being which the State is constitutionally tasked to promote and
protect. Moreover, the State is also mandated to recognize and support the vital role of
the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by
the Constitutional Commission, explained that the State shall "extend social protection
to minors against all forms of neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of discrimination." 58

Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent
minds. It has a compelling interest in helping parents, through regulatory mechanisms,
protect their children’s minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-building. 59 In the
same way, the State is mandated to support parents in the rearing of the youth for civic
efficiency and the development of moral character. 60

Petitioner’s offensive and obscene language uttered in a television broadcast, without

doubt, was easily accessible to the children. His statements could have exposed
children to a language that is unacceptable in everyday use. As such, the welfare of
children and the State’s mandate to protect and care for them, as parens
patriae,61 constitute a substantial and compelling government interest in regulating
petitioner’s utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or
prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read.
Although Cohen’s written message, ["Fuck the Draft"], might have been
incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s
vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the government’s interest in the "well-
being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend
to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set.
Children then will likely will be among the avid viewers of the programs therein shown.
As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. 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.62

The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the following considerations: (1) the use of television
with its unique accessibility to children, as a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan
program. And in agreeing with MTRCB, the court takes stock of and cites with approval
the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case

does not involve a two-way radio conversation between a cab driver and a dispatcher,
or a telecast of an Elizabethan comedy. We have not decided that an occasional
expletive in either setting would justify any sanction. x x x The [FFC’s] decision rested
entirely on a nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was emphasized by the
[FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be
merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’
We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise
of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers.
It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate
and prevent should such action served and further compelling state interests. One who
utters indecent, insulting, or offensive words on television when unsuspecting children
are in the audience is, in the graphic language of FCC, a "pig in the parlor." Public
interest would be served if the "pig" is reasonably restrained or even removed from the
"parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to prior
restraint are movies, television, and radio broadcast censorship in view of its access to
numerous people, including the young who must be insulated from the prejudicial
effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or license
before showing a motion picture or broadcasting a TV program. The Board can classify
movies and television programs and can cancel permits for exhibition of films or
television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it out
of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character." 63

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what
movies are "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people," and what "tend to incite
subversion, insurrection, rebellion or sedition," or "tend to undermine the faith and
confidence of the people in their government and/or duly constituted authorities," etc.
Moreover, its decisions are executory unless stopped by a court. 64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the
power of review and prior approval of MTRCB extends to all television programs and is
valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are required to get a permit before
they air their television programs. Consequently, their right to enjoy their freedom of
speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became "a necessary evil" with the
government taking the role of assigning bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt each
other’s signals. In this scheme, station owners and broadcasters in effect waived their
right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraint—denial
of permit or subsequent punishment, like suspension or cancellation of permit, among
others.

The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under
its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i)
of PD 1986 and the remedies that may be availed of by the aggrieved private party
under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per
se for petitioner’s exercise of his freedom of speech via television, but for the indecent
contents of his utterances in a "G" rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station
owners, program producers, and hosts have impliedly accepted the power of MTRCB to
regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement and
administration of the law which it is tasked to implement. Viewed in its proper context,
the suspension sought to penalize past speech made on prime-time "G" rated TV
program; it does not bar future speech of petitioner in other television programs; it is a
permissible subsequent administrative sanction; it should not be confused with a prior
restraint on speech. While not on all fours, the Court, in MTRCB, 66 sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV
episode without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of
indecent or obscene speech in a "G" rated program is not acceptable. As made clear
in Eastern Broadcasting Corporation, "the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media."
The MTRCB, as a regulatory agency, must have the wherewithal to enforce its
mandate, which would not be effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must be
met with appropriate and proportional disciplinary action. The suspension of a violating
television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioner’s television program is
justified, and does not constitute prohibited prior restraint. It behooves the Court to
respond to the needs of the changing times, and craft jurisprudence to reflect these
times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the

very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has earlier adequately explained why
petitioner’s undue reliance on the religious freedom cannot lend justification, let alone
an exempting dimension to his licentious utterances in his program. The Court sees no
need to address anew the repetitive arguments on religious freedom. As earlier
discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in
no way a religious speech. Parenthetically, petitioner’s attempt to characterize his
speech as a legitimate defense of his religion fails miserably. He tries to place his words
in perspective, arguing evidently as an afterthought that this was his method of refuting
the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on
the night he uttered them in his television program, the word simply came out as
profane language, without any warning or guidance for undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB, and
that he was unable to demonstrate that he was unjustly discriminated against in the
MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as
PD 1986 does not provide for the range of imposable penalties that may be applied with
respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that

Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness of
the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it,
and what is the scope of his authority. For a complex economy, that may indeed be the
only way in which the legislative process can go forward. A distinction has rightfully
been made between delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done, and delegation
of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be
regarded as denying the legislature the necessary resources of flexibility and
practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel.
A standard thus defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. 67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s
protestation about undue delegation of legislative power for the sole reason that PD
1986 does not provide for a range of penalties for violation of the law is untenable. His
thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of
penalties for violation of the provisions of the decree, went beyond the terms of the law.

Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the
MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the
MTRCB, by express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall
be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k)
of the decree authorizing the MTRCB "to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]." As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power would
surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged,
and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular

power necessary for the exercise of the one or the performance of the other is also
conferred. x x x [W]hen the statute does not specify the particular method to be followed
or used by a government agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to carry out its function. 68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought to be
enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power "[to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x." And Chapter XIII, Sec. 1 of the
IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to

the immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing
Rules and Regulations governing motion pictures, television programs, and related
promotional materials shall be penalized with suspension or cancellation of permits
and/or licenses issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table of
Administrative Penalties attached without prejudice to the power of the Board to amend
it when the need arises. In the meantime the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB under the law or partake of the nature of
an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a guardian of the
public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The
MTRCB may evaluate motion pictures, television programs, and publicity materials
"applying contemporary Filipino cultural values as standard," and, from there, determine
whether these audio and video materials "are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it deems
proper. The lawmaking body cannot possibly provide for all the details in the
enforcement of a particular statute.69 The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers. 70 Administrative regulations or
"subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the
law."71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the
exercise of its statutory disciplinary functions, according it ample latitude in fixing, by
way of an appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the case may
be, would be consistent with its mandate to effectively and efficiently regulate the movie
and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere
in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend
the program host or even to prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the broadcast of such television
programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered
to be within the decree’s penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating the
statute and for whom the penalty is sought. Thus, the MTRCB’s decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order
issued pursuant to said decision must be modified. The suspension should cover only
the television program on which petitioner appeared and uttered the offensive and
obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in

which absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply
utter gutter profanity on television without adverse consequences, under the guise of
free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms
of speech and expression are not absolute freedoms. To say "any act that restrains
speech should be greeted with furrowed brows" is not to say that any act that restrains
or regulates speech or expression is per se invalid. This only recognizes the importance
of freedoms of speech and expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to
the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as
follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a

penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

 Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. TERESITA J. LEONARDO-DE

NACHURA CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
1
 Rollo (G.R. No. 165636), p. 375.
2
 Id. at 923.
3
 Id. at 924, Private Respondents’ Memorandum.
4
 Id. at 110.
5
 Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of
PD 1986 and the IRR.
6
 Id. at 141-151.
7
 Id. at 152-154.
8
 Id. at 166-252.
9
 Id. at 378.
10
 Id. at 182.
11
 Id. at 46.
12
 Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA
747.
13
 Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769.
14
 Agpalo, Administrative Law (2005); citing Matienzon v. Abellera, G.R. No.
77632, June 8, 1988, 162 SCRA 1.
15
 Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497.
16
 Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v.
Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689.
17
 Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530
SCRA 235, 295-296; citing Azarcon, supra note 12, at 761; Radio
Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & 29247,
August 21, 1974, 58 SCRA 493, 497.
18
 63 Phil. 139, 177 (1936).
19
 Rollo (G.R. No. 164785), p. 12.
20
 Id. at 94.
21
 Id. at 95.
22
 Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992,
206 SCRA 256.
23
 1 De Leon, Philippine Constitutional Law 274 (2003).
24
 Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing
Ichong v. Hernandez, 101 Phil. 1155 (1957) and other cases.
25
 US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v.
Dans, Jr., No. L-59329, July 19, 1985, 137 SCRA 628.
26
 Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v.
Pacifica Foundation, 438 U.S. 726; Gonzales v. Kalaw Katigbak, No. L-69500,
July 22, 1985, 137 SCRA 717.
27
 J.G. Bernas, S.J., The Constitution of the Republic of the Philippines: A
Commentary 205 (1996).
28
 Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA
476.
29
 Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218.
30
 G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490.
31
 315 U.S. 568 (1942).
32
 Agpalo, Philippine Constitutional Law 358 (2006).
33
 Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248.
34
 Bernas, supra note 27, at 248.
35
 G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361.
36
 413 U.S. 15.
37
 438 U.S. 726.
38
 Supra note 25.
39
 G.R. No. 168338, February 15, 2008, 545 SCRA 441.
40
 "Shit, piss, fuck, tits, etc."
41
 Supra note 39.
42
 Supra note 26.
43
 Gonzales v. Kalaw Katigbak, supra.
44
 Pharmaceutical and Health Care Association of the Philippines v. Health
Secretary Francisco T. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA
265.
45
 Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
46
 16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249
U.S. 47.
47
 Bernas, supra note 27, at 219-220.
48
 Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835.
49
 ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28,
2000, 323 SCRA 811; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992,
207 SCRA 712.
50
 Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989,
170 SCRA 1.
51
 Supra note 25, at 635.
52
 No. L-82380, April 29, 1988, 160 SCRA 861.
53
 Supra note 48.
54
 Supra at 898.
55
 Supra at 899-900.
56
 Kauper, Civil Liberties and the Constitution 113 (1966); cited in Gonzales v.
COMELEC, supra note 48; also cited in J.G. Bernas, S.J., The 1987 Constitution
of the Republic of the Philippines: A Commentary (2003).
57
 Id.
58
 Bernas, supra note 27, at 81.
59
 Constitution, Art. II, Sec. 13.
60
 Id., id., Sec. 12.
61
 Id.
62
 Supra note 26, at 729.
63
 G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552.
64
 Supra note 56, at 235.
 65
 G.R. No. 155282, January 17, 2005, 448 SCRA 575.
66
 Supra note 65.
67
 No. L-32096, October 24, 1970, 35 SCRA 481, 496-497.
68
 Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936);
Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231
SCRA 463.
69
 People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458.
70
 Id.
71
 Id.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

TINGA, J.:

While I concur in the ponencia, I write separately to offer some observations on the
dissent of our esteemed colleague, Justice Antonio T. Carpio as well as to briefly
explain my views.

The Bill of Rights does not forbid abridging speech, but abridging the freedom of
speech.1 The view that freedom of speech is an absolute freedom has never gained
currency with this Court, or the United States Supreme Court, which both have carved
out exceptions relating to unprotected speech, such as obscenity. Constitutionally
protected freedom of speech is narrower than an unlimited license to talk. 2 General
regulatory statutes not intended to control the content of speech but incidentally limiting
its unfettered exercise have not been regarded as the type of law proscribed by the Bill
of Rights, when they have been found justified by subordinating valid governmental
interests, a prerequisite to constitutionality which has necessarily involved a weighing of
the governmental interest involved. 3

Justice Carpio dissents as he feels that the three-month suspension of petitioner’s TV

program constitutes an unconstitutional prior restraint on freedom of expression.
However, said suspension is, much more so, a form of subsequent punishment, levied
petitioner in response to the blatantly obscene remarks he had uttered on his television
program on the night of 10 August 2004. The primary intent of the suspension is to
punish petitioner for such obscene remarks he had made on the broadcast airwaves,
and not to restrain him from exercising his right to free expression.

That the assailed subsequent punishment aside from being such also takes on the
character of a prior restraint (unlike, e.g., if the punishment levied is a fine) somewhat
muddles the issue. But to better clarify the point, let us assume instead that petitioner
made the same exact remarks not on television, but from his pulpit. The MTRCB learns
of such remarks, and accordingly suspends his program for three months. In that
scenario, neither the MTRCB nor any arm of government has the statutory authority to
suspend the program based on the off-camera remarks, even if such action were
justified to prevent petitioner from making similar remarks on the air. In that scenario,
the suspension unmistakably takes on the character of prior restraint, rather than
subsequent punishment.

It is clear that the MTRCB is vested under its organic law with ample powers to impose
prior restraint on television programs. Section 7 of Pres. Decree No. 1986 declares it
unlawful to air any television program unless it had been duly reviewed and approved
by the MTRCB. As emphasized in the recent case of MTRCB v. ABS-CBN, 4 penned by
Justice Angelina Sandoval-Gutierrez, such power of review and prior approval of the
MTRCB extends to all television programs–even news and public affairs programs–and
is valid notwithstanding the constitutional guarantee to free expression. Moreover, in
conducting its prior review of all television programs, the MTRCB has the power to
approve or disapprove, or to delete "objectionable" portions of such television programs
submitted for its approval, based on the standards set forth in Section 3 of Pres. Decree
No. 1986.

Under this review and approval schematic established by Pres. Decree No. 1986, all
broadcast networks labor under a regime of prior restraint before they can exercise their
right to free expression by airing the television programs they produce. If the MTRCB
were indeed absolutely inhibited from imposing "prior restraint", then the entire review
and approval procedure under Pres. Decree No. 1986 would be unconstitutional. I am
not sure whether Justice Carpio means to imply this.

I do take it though that Justice Carpio wishes to bring forth as a core issue whether or
not the MTRCB can impose the penalty of suspension in a television program, an issue
which necessarily takes for granted that the program had violated the matters
enumerated as objectionable under Section 3 of Pres. Decree No. 1986. Justice Carpio,
to my understanding, believes that the MTRCB can never suspend a program despite
its "guilt" because suspension is a prohibited prior restraint on future
speech.1avvphi1 Following that line of thought, the imposition of a fine in lieu of
suspension would be permissible because such fine would not take the form of prior
restraint, even if it may constitute subsequent punishment.

Curiously, Presidential Decree No. 1986 does not expressly confer on the MTRCB the
power to levy a penalty other than imprisonment for between three months and a day to
a year, a fine of between fifty to one hundred thousand pesos, and the revocation of the
license of the television station.5 The less draconian penalties, such as suspension, are
provided for instead in the implementing rules of the MTRCB, particularly Chapter XII,
Section 1 thereof. The ponencia justifies the adoption of such penalties not specified in
Pres. Decree No. 1986 through the conferment by the same law on the MTRCB of the
authority "to supervise [and] regulate xxx television broadcast of all xxx television
programs"6 and "[t]o exercise such power and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act". 7

I have no doubt that suspending the petitioner will inhibit his speech, even if such ban is
enforced in the name of subsequent punishment rather than prior restraint. Such a
penalty must endure strict scrutiny since it is related to the exercise of that fundamental
guarantee of free speech. However, it is extremely material to my view the fact that the
obscene utterances were made on television, and that the penalty imposed relates to
the right of petitioner to broadcast on television. If the current concern pertained to
speech in a different medium, such as the print media or the Internet, then I would be
much less tolerant over the penalties imposed corresponding to the exercise of speech.
Yet the fact is, broadcast media enjoys a lesser degree of protection than expression in
other mediums, owing to the unique nature of broadcasting itself.

Petitioner’s program is broadcast over UNTV-37, which operates from the UHF band.
All of broadcasting, whether radio or television, utilizes the airwaves, or the
electromagnetic spectrum, in order to be received by the listener or viewer. The
airwaves, which are a scarce and finite resource, are not susceptible to physical
appropriation, and therefore owned by the State. 8 Each station relies on a particular
bandwidth assignation which marks their slot on the spectrum where it can constantly
broadcast its signal. Without government regulation, as was the case in the early days
of radio in the United States, stations desiring to broadcast over the airwaves would not
have a definitive right to an assigned bandwidth, and would have to fend off competing
broadcasters who would try to interfere or co-opt each others signals. Thus, government
regulation became a necessary evil, with the government taking the role of assigning
bandwidth to individual broadcasters. However, since the spectrum is finite, not all
stations desiring to broadcast over the airwaves could be accommodated. Therefore, in
exchange for being given the privilege by the government to use the airwaves, station
owners had to accede to a regime whereby those deemed most worthy by the
government to operate broadcast stations would have to accede to regulations by the
government, including the right to regulate content of broadcast media.

These limitations of scarcity are peculiar to broadcast only, and do not apply to other
mediums such as print media and the Internet. For that reason, the United States
Supreme Court9 has acknowledged that media such as print and the Internet enjoy a
higher degree of First Amendment protection than broadcast media. If the same
utterances made by petitioner were made instead in print media, it would be difficult to
justify on constitutional grounds any punishment that proscribed his exercise of free
speech, even if his language might run afoul of the relevant anti-obscenity laws. But
because these were made on broadcast television, the inherent and idiosyncratic ability
of the State to regulate content of broadcast media would justify corresponding duly
legislated sanctions. Moreover, since the ultimate consideration of the State in
regulating broadcast media is whether such broadcaster should be entitled to use the
broadcast spectrum in the first place, a sanction corresponding to suspension from the
airwaves which the State owns, is commensurate, even if it may not be so in the case of
other media where the State has no inherent regulatory right.

Indeed, nobody has the unimpedable right to broadcast on the airwaves. One needs to
secure a legislative franchise from Congress, and thereafter the necessary permits and
licenses from the National Telecommunications Commission before a single word may
be broadcast on air. Moreover, especially since they are regulated by the State,
broadcasters are especially expected to adhere to the laws of the land, including Pres.
Decree No. 1986. And under the said law, the legislative branch had opted to confer on
the MTRCB the power to regulate and to penalize television broadcast stations in
accordance with the terms of the said law.

It is a legitimate question for debate whether the proper sanction on petitioner should be
suspension from broadcast, or a less punitive penalty such as a fine. Yet Justice Carpio
is proceeding from the premise that suspension can never be an appropriate penalty the
MTRCB can impose, because it is a prior restraint. On the other hand, I believe that
suspension is a penalty that is part and parcel, if not particularly appropriate to, the
inherent regulatory power of the State over broadcast media. After all, the right to
broadcast involves the right to use the airwaves which the State owns, and if the
broadcaster offends any of the legislated prerogatives or priorities of the State when in
comes to broadcasting, suspension is an apt penalty.

With respect to the merits of these petitions, my views are simply this. There is no
question that petitioner’s remarks are inherently obscene, and certainly potential cause
for a libel suit. These remarks were made on broadcast media, which the State
inherently has the right to regulate. The State has the right to prevent the sort of
language used by petitioner on the airwaves that it owns, as well as the right to punish
broadcasters who do make such remarks. Pres. Decree No. 1986, as it stands,
accommodates these particular concerns and imposes corresponding sanctions which I
deem appropriate on broadcasters whose transgressions are as grave as that of
petitioner. While I may have serious reservations on several other aspects of Pres.
Decree No. 1986, a relic of the dictatorship era, that law as applied to this particular
case operates in a way that I believe is constitutionally permissible.

DANTE O. TINGA
Associate Justice

Footnotes
 1
 See A. Meklejohn, Free Speech and Its Relation to Self Government (1948), p.
19.
2
 Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961)
3
 Id.
4
 G.R. No. 155282, 17 January 2005.
5
 See Section 11, Pres. Decree No. 1986, which states: "Penalty. —Any person
who violates the provisions of this Decree and/or the implementing rules and
regulations issued by the BOARD, shall, upon conviction, be punished by a
mandatory penalty of three (3) months and one day to one (1) year imprisonment
plus a fine of not less than fifty thousand pesos but not more than one hundred
thousand pesos. The penalty shall apply whether the person shall have
committed the violation either as principal, accomplice or accessory. If the
offender is an alien, he shall be deported immediately. The license to operate the
movie house, theater, or television station shall also be revoked. Should the
offense be committed by a juridical person, the chairman, the president,
secretary, treasurer, or the partner responsible therefore, shall be the persons
penalized."
6
 See P.D. No. 1986, Sec. 3(d).
7
 See P.D. No. 1986, Sec. 3(k).
8
 See Telecommunications & Broadcast Attorneys of the Philippines v.
COMELEC, G.R. No. 132922, 21 April 1998.
9
 See Reno v. ACLU, 521 U.S. 844 (1997).

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

CORONA, J.:

Free speech is a preferred right which has to be zealously guarded. Nonetheless, it is

not absolute but limited by equally fundamental freedoms enjoyed by other members of
society. It is also circumscribed by the basic principle of all human relations: every
person must in the exercise of his rights and performance of his duties, act with justice,
give everyone his due and observe honesty and good faith. 1 For these reasons, free
speech may be subjected to reasonable regulation by the State in certain circumstances
when required by a higher public interest.

Factual Backdrop

Petitioner Eliseo F. Soriano was one of the hosts of Ang Dating Daan, a television
program aired on UNTV 37. The program was given a "G" rating by the Movie and
Television Review and Classification Board (MTRCB).

On August 10, 2004, at around 10:00 in the evening, petitioner uttered the following
statements in his program:

Lehitimong anak ng demonyo[!] [S]inungaling[!]

Gago ka talaga[,] Michael[!] [M]asahol ka pa sa putang babae o di ba[?] [‘]Yung putang

babae ang gumagana lang doon [‘]yung ibaba, dito kay Michael ang gumagana ang
itaas, o di ba? O, masahol pa sa putang babae [‘]yan. Sabi ng lola ko masahol pa sa
putang babae [‘]yan. Sobra ang kasinungalingan ng mga demonyong ito. 2

Acting on complaints arising from the said statements, the MTRCB preventively
suspended the airing of the program for 20 days. 3 Subsequently, the MTRCB found
petitioner liable for his utterances and suspended him from his program for three
months.4

Petitioner now assails his suspension as a violation of his right to free speech.

Free Speech And The Uniqueness Of Broadcast Media

In free speech cases, the medium is relevant and material. Each medium of expression
presents its own peculiar free speech problems.5 And in jurisprudence,6 broadcast
media receive much less free speech protection from government regulation than do
newspapers, magazines and other print media.7 The electromagnetic spectrum used by
broadcast media is a scarce resource. As it is not available to all, unlike other modes or
media of expression, broadcast media is subject to government regulation. 8

The broadcast spectrum is a publicly-owned forum for communication that has been
awarded to private broadcasters subject to a regulatory scheme that provides limited
access to speakers and seeks to promote certain public interest goals. 9 For this reason,
broadcast media is a public trust and the broadcaster’s role is that of "a public trustee
charged with the duty of fairly and impartially informing the public audience." 10 Thus, "of
all forms of communication, it is broadcasting that has received the most limited [free
speech] protection."11 Indeed, an unabridgeable right to broadcast is not comparable to
the right of the individual to speak, write or publish. 12 Moreover, it is the right of the
viewers and listeners, not the right of the broadcasters, which is paramount. 13
Therefore, the use of the public airwaves for broadcasting purposes (that is,
broadcasting television programs over the public electromagnetic spectrum) is a
privilege, not a right.14 With this privilege comes certain obligations and responsibilities,
namely complying with the rules and regulations of the MTRCB or facing the risk of
administrative sanctions and even the revocation of one’s license to broadcast.

Equally Fundamental Rights As Limit Of Speech In Broadcast Media

U.S. President Herbert Hoover (who was then Secretary of Commerce) stated that ‘[t]he
ether is a public medium and its use must be for a public benefit." 15 The dominant
element for consideration in broadcast media is therefore the great body of viewing
public, millions in number, countrywide in distribution. 16 To reiterate, what is paramount
is the right of viewers, not the right of broadcasters.

What specific rights of viewers are relevant vis-à-vis the right of broadcasters to speak?
Considering the uniquely pervasive presence of broadcast media in the lives of
Filipinos, these rights are as follows:

(a) the right of every person to dignity; 17

(b) the natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character; 18

(c) the right of the youth to the promotion and protection by the State of their
moral, spiritual, intellectual and social well-being 19 and

(d) the right to privacy.

Right to dignity

The ideal of the Filipino people is to build a just and humane society and a regime of
truth, justice, freedom, love, equality and peace. 20 In this connection, among the
fundamental policies of the State is that it values the dignity of every human
person.21 The civil code provisions on human relations also include the duty of every
person to respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons.22

A society which holds that egalitarianism, non-violence, consensualism, mutuality and

good faith are basic to any human interaction is justified in controlling and prohibiting
any medium of depiction, description or advocacy which violates these
principles.23 Speech which degrades the name, reputation or character of persons is
offensive and contributes to a process of moral desensitization. Free speech is not an
excuse for subjecting anyone to the degrading and humiliating message inherent in
indecent, profane, humiliating, insulting, scandalous, abusive or offensive statements
and other forms of dehumanizing speech.
Right of parents to develop the moral character of their children; right of the youth to the
promotion and protection by the State of their moral well-being

Many Filipino homes have television sets. Children have access to television and, in
many cases, are unsupervised by parents. With their impressionable minds, they are
very susceptible to the corrupting, degrading or morally desensitizing effect of indecent,
profane, humiliating or abusive speech.

FCC v. Pacifica Foundation24 elaborates:

[B]roadcasting is uniquely accessible to children, even those too young to read.

Although Cohen’s written message, ["Fuck the Draft"], might have been
incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s
vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the government’s interest in the "well-
being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting. 25

Parental interest in protecting children from exposure to indecent, scandalous, insulting

or offensive speech must be supported by the government through appropriate
regulatory schemes. Not only is this an exercise of the State’s duty as parens patriae, it
is also a constitutionally enshrined State policy. 26 In this connection, the MTRCB is
mandated by law to classify television programs. In particular, a "G" rating indicates
that, in its judgment, a particular program is suitable for all ages and without "anything
unsuitable for children and minors and may be viewed without adult guidance or
supervision."27 A "PG" rating means that, in the judgment of the MTRCB, parental
guidance is suggested as it "may contain some adult material [which] may be
permissible for children to watch under the guidance and supervision of a parent or an
adult."28

Loud and public indecent or offensive speech can be reasonably regulated or even
prohibited if within the hearing of children. The potency of this rule is magnified where
the same speech is spoken on national prime-time television and broadcast to millions
of homes with children present and listening. 29

Moreover, children constitute a uniquely captive audience. 30 The Constitution

guarantees a society of free choice.31 Such a society presupposes the capacity of its
members to choose.32 However, like someone in a captive audience, a child is not
possessed of that full capacity for individual choice. 33 Because of their vulnerability to
external influence, not only are children more ‘captive’ than adults in the sense of not
being as able to choose to receive or reject certain speech but they may also be
harmed more by unwanted speech that is in fact received. 34
Taken in the context of the constitutional stature that parental authority receives and
given that the home is the domain for such authority, the government is justified in
helping parents limit children’s access to undesirable materials or experiences. 35 As
such, the government may properly regulate and prohibit the television broadcast of
indecent or offensive speech.

Right to privacy

Protecting the privacy of the home is a compelling government interest. Carey v.

Brown36 emphatically declared that "[t]he State’s interest in protecting the well-being,
tranquility, and privacy of the home is certainly of the highest order in a free and
civilized society."37

Broadcast indecency is sinister. It has the capacity to intrude into the privacy of the
home when least expected. Unconsenting adults may tune in a station without warning
that offensive language is being or will be broadcast. 38

Pacifica Foundation has this to say on the matter:

Patently offensive, indecent material presented over the airwaves confronts the citizen,
not only in public, but also in the privacy of the home, where the individual’s right to be
left alone plainly outweighs the [free speech] rights of an intruder. 39

The right to privacy is intimately tied to the right to dignity which, in turn, hinges on
individual choice.40 Thus, in the context of broadcast indecency, the dominant
constitutional principle at work is not free expression as indecency in and of itself has
little or no value and is not protected. 41 Instead, the key constitutional principle involves
privacy, dignity and choice. No one has the right to force an individual to accept what
they are entitled to exclude, including what they must listen to or view, 42 especially in the
privacy of the home. If a person cannot assert his authority at home, his self-worth is
diminished and he loses a part of his sense of dignity. 43 His inability to make personal
decisions is simply the consequence of having no right of choice in what is supposed to
be his private sanctuary.

Basic Principle Of Human Relations

Vis-à-vis The Right To Broadcast

The exercise of the right to broadcast touches upon and inevitably clashes with various
rights and interests of the viewing public. Public interest, the ideal end of broadcast
media, is entirely different from what usually interests the public which is the common
fare of everyday programming.44

The objective of laws is to balance and harmonize as much as possible those

competing and conflicting rights and interests. For amidst the continuous clash of
interests, the ruling social philosophy should be that, in the ultimate ideal social order,
the welfare of every person depends upon the welfare of all. 45
Law cannot be given an anti-social effect. 46 A person should be protected only when he
acts in the legitimate exercise of his rights, that is, when he acts with prudence and
good faith, not when he acts with negligence or abuse. 47 The exercise of a right ends
when the right disappears and it disappears when it is abused, especially to the
prejudice of others.48 The mask of a right without the spirit of justice which gives it life is
repugnant to the modern concept of law. 49

As applied to the right to broadcast, the broadcaster must so use his right in accordance
with his duties as a public trustee and with due regard to fundamental freedoms of the
viewers. The right is abused when, contrary to the MTRCB rules and regulations, foul or
filthy words are mouthed in the airwaves.

Someone who utters indecent, scandalous, insulting or offensive words in television is a

proverbial pig in the parlor. Public interest requires that he be reasonably restrained or
even removed from that venue. Nonetheless, the no-pig-in-the-parlor rule does not
mean that the government will be allowed either to keep the pig from enjoying life in its
pen or to apply the rule to non-pigs attempting to enter the parlor. 50

Free speech in broadcast media is premised on a marketplace of ideas that will cultivate
a more deliberative democracy, not on a slaughterhouse of names and character of
persons or on a butchery of all standards of decency and propriety.

The confluence and totality of the fundamental rights of viewers 51 and the proscription
on abuse of rights significantly outweigh any claim to unbridled and unrestrained right to
broadcast speech. These also justify the State in undertaking measures to regulate
speech made in broadcast media including the imposition of appropriate and
reasonable administrative sanctions.

State Regulation Of Broadcast

Media Through The MTRCB

The MTRCB is the agency mandated by law to regulate television programming. In

particular, it has been given the following powers and functions under its charter,
PD52 1986:

Section 3. Powers and Functions. – The BOARD shall have the following functions,
powers and duties:

(a) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its purposes and
objectives, including guidelines and standards for production, advertising and
titles. Such rules and regulations shall take effect after fifteen (15) days following
their publication in newspapers of general circulation in the Philippines;

xxxxxxxxx
 (c) To approve or disapprove, delete objectionable portions from and/or prohibit
the x x x 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 wrong or crime, such as but not
limited to:

xxxxxxxxx

(vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;

xxxxxxxxx

(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 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;

e) To classify motion pictures, television programs and similar shows into

categories such as "G" or "For General Patronage" (all ages admitted), "P" or
"Parental Guidance Suggested", "R" or "Restricted" (for adults only), "X" or "Not
for Public Viewing", or such other categories as the BOARD may determine for
the public interest;

xxxxxxxxx

(k) To exercise such powers and functions as may be necessary or incidental to

the attainment of the purposes and objectives of this Act, and to perform such
other related duties and responsibilities as may be directed by the President of
the Philippines. (emphasis supplied)

The grant of powers to the MTRCB under Section 3 of PD 1986 does not categorically
express the power to suspend a television program or a host thereof that violates the
standards of supervision, regulation and classification of television programs provided
under the law. Nonetheless, such silence on the part of the law does not negate the
existence of such a power.

First, a general grant of power is a grant of every particular and specific power
necessary for the exercise of such general power. 53 Other than powers expressly
conferred by law on them, administrative agencies may lawfully exercise powers that
can be reasonably inferred in the wordings of the enabling law. 54

To begin with, Section 3(d) of PD 1986 explicitly gives the MTRCB the power to
supervise and regulate the television broadcast of all television programs. Under
Section 3(e) the MTRCB is also specifically empowered to classify television programs.
In the effective implementation of these powers, the MTRCB is authorized under
Section 3(a) "[t]o promulgate such rules and regulations as are necessary or proper for
the implementation of [PD 1986]." Finally, under Section 3(k), the MTRCB is warranted
"[t]o exercise such powers and functions as may be necessary or incidental to the
attainment of the purposes and objectives of [PD 1986]."

Clearly, the law intends to give the MTRCB all the muscle to carry out and enforce the
law effectively. In consonance with this legislative intent, we uphold the implied and
necessary power of the MTRCB to order the suspension of a program or a host thereof
in case of violation of PD 1986 and rules and regulations that implement it.

Second, the grant of a greater power necessarily includes the lesser power. In eo quod
plus sit, semper inest et minus.

The MTRCB has the power to cancel permits for the exhibition or television broadcast of
programs determined by the said body to be objectionable for being "immoral, indecent,
contrary to law or good customs x x x."55 This power is a power to impose sanctions.

A "sanction" in relation to administrative procedure is defined as follows:

the whole or part of a prohibition, limitation or other condition affecting the liberty of any
person; the withholding of relief; the imposition of penalty or fine; the destruction, taking,
seizure or withholding of property; the assessment of damages, reimbursement,
restitution, compensation, cost, charges or fees; the revocation or suspension of
license; or the taking of other compulsory or restrictive action. 56 (emphasis supplied)

The MTRCB’s power to cancel permits is a grant of authority to permanently and

absolutely prohibit the showing of a television program that violates MTRCB rules and
regulations. It necessarily includes the lesser power to temporarily and partially prohibit
a television program that violates MTRCB rules and regulations by suspending either
the showing of the offending program or the appearance of the program’s offending
host.

Third, broadcasters are public trustees. Hence, in a sense, they are accountable to the
public like public officers. Public accountability imposes a three-fold liability, criminal,
civil and administrative. As such, the imposition of suspension as an administrative
penalty is justified by the nature of the broadcaster’s role vis-à-vis the public.

Finally, the infraction of MTRCB rules and regulations through the showing of indecent,
scandalous, insulting or offensive material constitutes a violation of various fundamental
rights of the viewing public, including the right of every person to dignity; the right of
parents to develop the moral character of their children; the right of the youth to the
promotion and protection by the State of their moral well-being and the right to privacy.

Equity will not suffer a wrong to be without a remedy. Ubi jus ibi remedium. Where there
is a right, there must be an effective remedy. While civil damages may be awarded to
the particular person who is the object of indecent, scandalous, insulting or offensive
material and imprisonment or fine may be imposed to ensure the State’s interest in
enforcing penal laws, these remedies fail to address the violation of the fundamental
rights of the viewing public. Yet their interest is supposed to be of paramount
importance.

Clearly, therefore, in case of violation of PD 1986 and its implementing rules and
regulations, it is within the authority of the MTRCB to impose the administrative penalty
of suspension to the erring broadcaster. A contrary stance will emasculate the MTRCB
and render illusory its supervisory and regulatory powers, make meaningless the public
trustee character of broadcasting and afford no remedy to the infringed fundamental
rights of viewers.

No Grave Abuse Of Discretion

On The Part of MTRCB

I have so far focused my discussion on the abstract, the theoretical foundations and
limitations of free speech in broadcast media. I will now discuss the application of these
concepts on petitioner’s case.

The petitions should have been dismissed at the outset for being premature. Petitioner
did not file a motion for reconsideration of the order preventively suspending Ang Dating
Daan for 20 days as well as of the decision suspending petitioner for three months. As a
rule, a motion for reconsideration is indispensable before resort to the special civil
action for certiorari to afford the court or tribunal the opportunity to correct its error, if
any.57

Moreover, the petition in G.R. No. 165636 (assailing the MTRCB decision suspending
petitioner for three months) could have been denied from the start as it was an improper
remedy. Not only did petitioner fail to file a motion for reconsideration, he also neglected
to file an appeal. Recourse to petitions for certiorari and prohibition is proper only where
there is no appeal or any other plain, speedy and adequate remedy available. 58 In this
case, petitioner had the remedy of appeal. His failure to file the requisite appeal
proscribed this petition and rendered the decision of the MTRCB final and executory. 59

In any event, the MTRCB did not commit a grave abuse of discretion when it rendered
its decision. On the contrary, the decision was proper as it was supported by both the
facts and the law.
Grave abuse of discretion is such capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction.60 In this case, petitioner failed to show any
capriciousness, whimsicality or arbitrariness which could have tainted the MTRCB
decision.

Profanity and indecent talk and pictures, which do not form an essential part of any
exposition of ideas, have a very slight social value as a step toward truth. 61 Epithets that
convey no ideas capable of being true or false are worthless in the marketplace of
ideas.62 Even the "slight social value" of indecency is "outweighed by the social interests
in order, morality, the training of the young and the peace of mind of those who hear
and see."63 Moreover, indecency and profanity thwart the marketplace process because
it allows "little opportunity for the usual process of counter-argument." 64

The utterances which led to the suspension of petitioner from appearing in the show
Ang Dating Daan were indisputably indecent and offensive considering the
circumstances surrounding it. In particular, petitioner called private respondent Michael
M. Sandoval "demonyo," the personification of evil, twice. He also called Sandoval
"gago" (or idiot) once in the portion of the show subject of the complaint against him.
Immediately before that, however, the transcript of the August 10, 2004 program of Ang
Dating Daan reveals that he had already hurled the same epithet at least five times
against Sandoval. Worse, he uttered the patently offensive phrase "putang babae" in a
context that referred to the sexual act four times. The repetitive manner by which he
expressed the indecent and offensive utterances constituted a blatant violation of the
show’s classification as "G" rated.

Another thing. Petitioner’s use of the pejorative phrase "putang babae" was sexist. The
context of his statement shows that he meant to convey that there is a substantial
difference between a woman and a man engaged in prostitution, that a female prostitute
is worse than a male prostitute. As such, not only did petitioner made degrading and
dehumanizing remarks, he also betrayed a very low regard for women.

Even the most strained interpretation of free speech in the context of broadcast media
cannot but lead to the conclusion that petitioner’s statements were indecent and
offensive under the general standard of contemporary Filipino cultural values.
Contemporary values of the Filipino community will not suffer the utterances of
petitioner in the presence of children. Using contemporary values of the Filipino
community as a standard, it cannot be successfully denied that the statements made by
petitioner transcended the bounds of decency and even of righteous indignation.

Nonetheless, where fundamental freedoms are involved, resort to the least restrictive
approach is called for. Steps should be taken and sanctions should be imposed with an
abundance of caution and with the least possible collateral damage. No measure that is
more than what is necessary to uphold public interest may be taken. In this context, the
least restrictive approach was that taken by the MTRCB, to suspend the offending host
rather than the show (in which case the other innocent hosts would have been unduly
penalized as well). The lesser power of suspending the offending host should be
preferred over the greater power of suspending the show and all its hosts regardless of
who uttered the indecent and offensive remarks.

Under the circumstances obtaining in this case, therefore, and considering the adverse
effect of petitioner’s utterances on the viewers’ fundamental rights as well as petitioner’s
clear violation of his duty as a public trustee, the MTRCB properly suspended him from
appearing in Ang Dating Daan for three months.

Furthermore, it cannot be properly asserted that petitioner’s suspension was an undue

curtailment of his right to free speech either as a prior restraint or as a subsequent
punishment. Aside from the reasons given above (re the paramountcy of viewers rights,
the public trusteeship character of a broadcaster’s role and the power of the State to
regulate broadcast media), a requirement that indecent language be avoided has its
primary effect on the form, rather than the content, of serious communication. 65 There
are few, if any, thoughts that cannot be expressed by the use of less offensive
language.66

A Final Word

There is a need to preserve the delicate balance between the inherent police power of
the State to promote public morals and enhance human dignity and the fundamental
freedom of the individual to speak out and express himself. In this case and in the
context of the uniqueness of television as a medium, that balance may not be tilted in
favor of a right to use the broadcast media to rant and rave without due regard to
reasonable rules and regulations governing that particular medium. Otherwise, the
Court will promote (wittingly or unwittingly) the transformation of the "boob tube" to a
"boor tube" dominated by rude and unmannerly shows and personalities that totally
demean the precious guarantee of free speech and significantly erode other equally
fundamental freedoms.

To hold that the State, through the MTRCB, is powerless to act in the face of a blatant
disregard of its authority is not a paean to free speech. It is a eulogy for the State’s
legitimate exercise of police power as parens patriae to promote public morals by
regulating the broadcast media. It is an indictment of long and deeply held community
standards of decency and civility, an endorsement of indecorousness and indecency
and of everything that is contrary to basic principles of human relations.

Accordingly, I vote to DISMISS these petitions.

RENATO C. CORONA
Associate Justice

G.R. No. 124382           August 16, 1999

PASTOR DIONISIO V. AUSTRIA, petitioner,

vs.
HON. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), CEBU
CITY, CENTRAL PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-
DAY ADVENTISTS, ELDER HECTOR V. GAYARES, PASTORS REUBEN
MORALDE, OSCAR L. ALOLOR, WILLIAM U. DONATO, JOEL WALES, ELY
SACAY, GIDEON BUHAT, ISACHAR GARSULA, ELISEO DOBLE, PORFIRIO
BALACY, DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO, MR.
EUFRONIO IBESATE, MRS. TESSIE BALACY, MR. ZOSIMO KARA-AN, and MR.
ELEUTERIO LOBITANA, respondents.

KAPUNAN, J.:

Subject of the instant petition for certiorari under Rule 65 of the Rules of Court is the
Resolution1 of public respondent National Labor Relations Commission (the "NLRC"),
rendered on 23 January 1996, in NLRC Case No. V-0120-93, entitled "Pastor Dionisio
V. Austria vs. Central Philippine Union Mission Corporation of Seventh Day
Adventists, et al.," which dismissed the case for illegal dismissal filed by the petitioner
against private respondents for lack of jurisdiction.1âwphi1.nêt

Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day

Adventists (hereinafter referred to as the "SDA") is a religious corporation duly
organized and existing under Philippine law and is represented in this case by the other
private respondents, officers of the SDA. Petitioner, on the other hand, was a Pastor of
the SDA until 31 October 1991, when his services were terminated.

The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for
twenty eight (28) years from 1963 to 1991.2 He began his work with the SDA on 15 July
1963 as a literature evangelist, selling literature of the SDA over the island of Negros.
From then on, petitioner worked his way up the ladder and got promoted several times.
In January, 1968, petitioner became the Assistant Publishing Director in the West
Visayan Mission of the SDA. In July, 1972, he was elevated to the position of Pastor in
the West Visayan Mission covering the island of Panay, and the provinces of Romblon
and Guimaras. Petitioner held the same position up to 1988. Finally, in 1989, petitioner
was promoted as District Pastor of the Negros Mission of the SDA and was assigned at
Sagay, Balintawak and Toboso, Negros Occidental, with twelve (12) churches under his
jurisdiction. In January, 1991, petitioner was transferred to Bacolod City. He held the
position of district pastor until his services were terminated on 31 October 1991.

On various occasions from August up to October, 1991, petitioner received several

communications3 from Mr. Eufronio Ibesate, the treasurer of the Negros Mission asking
him to admit accountability and responsibility for the church tithes and offerings
collected by his wife, Mrs. Thelma Austria, in his district which amounted to P15,078.10,
and to remit the same to the Negros Mission.

In his written explanation dated 11 October 1991, 4 petitioner reasoned out that he
should not be made accountable for the unremitted collections since it was private
respondents Pastor Gideon Buhat and Mr. Eufronio Ibesate who authorized his wife to
collect the tithes and offerings since he was very sick to do the collecting at that time.

Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of
Pastor Buhat, the president of the Negros Mission. During said call, petitioner tried to
persuade Pastor Buhat to convene the Executive Committee for the purpose of settling
the dispute between him and the private respondent, Pastor David Rodrigo. The dispute
between Pastor Rodrigo and petitioner arose from an incident in which petitioner
assisted his friend, Danny Diamada, to collect from Pastor Rodrigo the unpaid balance
for the repair of the latter's motor vehicle which he failed to pay to Diamada. 5 Due to the
assistance of petitioner in collecting Pastor Rodrigo's debt, the latter harbored ill-
feelings against petitioner. When news reached petitioner that Pastor Rodrigo was
about to file a complaint against him with the Negros Mission, he immediately
proceeded to the office of Pastor Buhat on the date abovementioned and asked the
latter to convene the Executive Committee. Pastor Buhat denied the request of
petitioner since some committee members were out of town and there was no quorum.
Thereafter, the two exchanged heated arguments. Petitioner then left the office of
Pastor Buhat. While on his way out, petitioner overheard Pastor Buhat saying, "Pastor
daw inisog na ina iya (Pador you are talking tough)." 6 Irked by such remark, petitioner
returned to the office of Pastor Buhat, and tried to overturn the latter's table, though
unsuccessfully, since it was heavy. Thereafter, petitioner banged the attaché case of
Pastor Buhat on the table, scattered the books in his office, and threw the
phone.7 Fortunately, private respondents Pastors Yonilo Leopoldo and Claudio Montaño
were around and they pacified both Pastor Buhat and petitioner.

On 17 October 1991, petitioner received a letter 8 inviting him and his wife to attend the
Executive Committee meeting at the Negros Mission Conference Room on 21 October
1991, at nine in the morning. To be discussed in the meeting were the non-remittance of
church collection and the events that transpired on 16 October 1991. A fact-finding
committee was created to investigate petitioner. For two (2) days, from October 21 and
22, the fact-finding committee conducted an investigation of petitioner. Sensing that the
result of the investigation might be one-sided, petitioner immediately wrote Pastor
Rueben Moralde, president of the SDA and chairman of the fact-finding committee,
requesting that certain members of the fact-finding committee be excluded in the
investigation and resolution of the case. 9 Out of the six (6) members requested to inhibit
themselves from the investigation and decision-making, only two (2) were actually
excluded, namely: Pastor Buhat and Pastor Rodrigo. Subsequently, on 29 October
1991, petitioner received a letter of dismissal 10 citing misappropriation of denominational
funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties,
and commission of an offense against the person of employer's duly authorized
representative, as grounds for the termination of his services.

Reacting against the adverse decision of the SDA, petitioner filed a complaint 11 on 14
November 1991, before the Labor Arbiter for illegal dismissal against the SDA and its
officers and prayed for reinstatement with backwages and benefits, moral and
exemplary damages and other labor law benefits.
On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered a decision in favor of
petitioner, the dispositive portion of which reads thus:

WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE

UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS
(CPUMCSDA) and its officers, respondents herein, are hereby ordered to
immediately reinstate complainant Pastor Dionisio Austria to his former position
as Pastor of Brgy. Taculing, Progreso and Banago, Bacolod City, without loss of
seniority and other rights and backwages in the amount of ONE HUNDRED
FIFTEEN THOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00)
without deductions and qualificatioons.

Respondent CPUMCSDA is further ordered to pay complainant the following:

A. 13th month pay — P 21,060.00

B. Allowance — P 4,770.83

C. Service Incentive

Leave Pay — P 3,461.85

D. Moral Damages — P 50,000.00

E. Exemplary

Damages — P 25,000.00

F. Attorney's Fee — P 22,012.27

SO ORDERED.12

The SDA, through its officers, appealed the decision of the Labor Arbiter to the National
Labor Labor Relations Commission, Fourth Division, Cebu City. In a decision, dated 26
August 1994, the NLRC vacated the findings of the Labor Arbiter. The decretal portion
of the NLRC decision states:

WHEREFORE, the Decision appealed from is hereby VACATED and a new one
ENTERED dismissing this case for want of merit.

SO ORDERED.13

Petitioner filed a motion for reconsideration of the above-named decision. On 18 July

1995, the NLRC issued a Resolution reversing its original decision. The dispositive
portion of the resolution reads:
 WHEREFORE, premises considered, Our decision dated August 26, 1994 is
VACATED and the decision of the Labor Arbiter dated February 15, 1993 is
REINSTATED.

SO ORDERED.14

In view of the reversal of the original decision of the NLRC, the SDA filed a motion for
reconsideration of the above resolution. Notable in the motion for reconsideration filed
by private respondents is their invocation, for the first time on appeal, that the Labor
Arbiter has no jurisdiction over the complaint filed by petitioner due to the constitutional
provision on the separation of church and state since the case allegedly involved an
ecclesiastical affair to which the State cannot interfere.

The NLRC, without ruling on the merits of the case, reversed itself once again,
sustained the argument posed by private respondents and, accordingly, dismissed the
complaint of petitioner. The dispositive portion of the NLRC resolution dated 23 January
1996, subject of the present petition, is as follows:

WHEREFORE, in view of all the foregoing, the instant motion for reconsideration
is hereby granted. Accordingly, this case is hereby DISMISSED for lack of
jurisdiction.

SO ORDERED.15

Hence, the recourse to this Court by petitioner.

After the filing of the petition, the Court ordered the Office of the Solicitor General (the
"OSG") to file its comment on behalf of public respondent NLRC. Interestingly, the OSG
filed a manifestation and motion in lieu of comment 16 setting forth its stand that it cannot
sustain the resolution of the NLRC. In its manifestation, the OSG submits that the
termination of petitioner from his employment may be questioned before the NLRC as
the same is secular in nature, not ecclesiastical. After the submission of memoranda of
all the parties, the case was submitted for decision.

The issues to be resolved in this petition are:

1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the
complaint filed by petitioner against the SDA;

2) Whether or not the termination of the services of petitioner is an ecclesiastical

affair, and, as such, involves the separation of church and state; and

3) Whether or not such termination is valid.

The first two issues shall be resolved jointly, since they are related.
Private respondents contend that by virtue of the doctrine of separation of church and
state, the Labor Arbiter and the NLRC have no jurisdiction to entertain the complaint
filed by petitioner. Since the matter at bar allegedly involves the discipline of a religious
minister, it is to be considered a purely ecclesiastical affair to which the State has no
right to interfere.

The contention of private respondents deserves scant consideration. The principle of

separation of church and state finds no application in this case.

The rationale of the principle of the separation of church and state is summed up in the
familiar saying, "Strong fences make good-neighbors." 17 The idea advocated by this
principle is to delineate the boundaries between the two institutions and thus avoid
encroachments by one against the other because of a misunderstanding of the limits of
their respective exclusive jurisdictions.18 The demarcation line calls on the entities to
"render therefore unto Ceasar the things that are Ceasar's and unto God the things that
are God's."19 While the state is prohibited from interfering in purely ecclesiastical affairs,
the Church is likewise barred from meddling in purely secular matters. 20

The case at bar does not concern an ecclesiastical or purely religious affair as to bar the
State from taking cognizance of the same. An ecclesiastical affair is "one that concerns
doctrine, creed, or form of worship of the church, or the adoption and enforcement
within a religious association of needful laws and regulations for the government of the
membership, and the power of excluding from such associations those deemed
unworthy of membership.21 Based on this definition, an ecclesiastical affair involves the
relationship between the church and its members and relate to matters of faith, religious
doctrines, worship and governance of the congregation. To be concrete, examples of
this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and
other activities with attached religious significance. The case at bar does not even
remotely concern any of the abovecited examples. While the matter at hand relates to
the church and its religious minister it does not ipso facto give the case a religious
significance. Simply stated, what is involved here is the relationship of the church as an
employer and the minister as an employee. It is purely secular and has no relation
whatsoever with the practice of faith, worship or doctrines of the church. In this case,
petitioner was not ex-communicated or expelled from the membership of the SDA but
was terminated from employment. Indeed, the matter of terminating an employee, which
is purely secular in nature, is different from the ecclesiastical act of expelling a member
from the religious congregation.

As pointed out by the OSG in its memorandum, the grounds invoked for petitioner's
dismissal, namely: misappropriation of denominational funds, willful breach of trust,
serious misconduct, gross and habitual neglect of duties and commission of an offense
against the person of his employer's duly authorized representative, are all based on
Article 282 of the Labor Code which enumerates the just causes for termination of
employment.22 By this alone, it is palpable that the reason for petitioner's dismissal from
the service is not religious in nature. Coupled with this is the act of the SDA in furnishing
NLRC with a copy of petitioner's letter of termination. As aptly stated by the OSG, this
again is an eloquent admission by private respondents that NLRC has jurisdiction over
the case. Aside from these, SDA admitted in a certification 23 issued by its officer, Mr.
Ibesate, that petitioner has been its employee for twenty-eight (28) years. SDA even
registered petitioner with the Social Security System (SSS) as its employee. As a matter
of fact, the worker's records of petitioner have been submitted by private respondents
as part of their exhibits. From all of these it is clear that when the SDA terminated the
services of petitioner, it was merely exercising its management prerogative to fire an
employee which it believes to be unfit for the job. As such, the State, through the Labor
Arbiter and the NLRC, has the right to take cognizance of the case and to determine
whether the SDA, as employer, rightfully exercised its management prerogative to
dismiss an employee. This is in consonance with the mandate of the Constitution to
afford full protection to labor.

Under the Labor Code, the provision which governs the dismissal of employees, is
comprehensive enough to include religious corporations, such as the SDA, in its
coverage. Article 278 of the Labor Code on post-employment states that "the provisions
of this Title shall apply to all establishments or undertakings, whether for profit or not."
Obviously, the cited article does not make any exception in favor of a religious
corporation. This is made more evident by the fact that the Rules Implementing the
Labor Code, particularly, Section 1, Rule 1, Book VI on the Termination of Employment
and Retirement, categorically includes religious institutions in the coverage of the law, to
wit:

Sec. 1. Coverage. — This Rule shall apply to all establishments and

undertakings, whether operated for profit or not, including educational, medical,
charitable and religious institutions and organizations, in cases of regular
employment with the exception of the Government and its political subdivisions
including government-owned or controlled corporations. 24

With this clear mandate, the SDA cannot hide behind the mantle of protection of the
doctrine of separation of church and state to avoid its responsibilities as an employer
under the Labor Code.

Finally, as correctly pointed out by petitioner, private respondents are estopped from
raising the issue of lack of jurisdiction for the first time on appeal. It is already too late in
the day for private respondents to question the jurisdiction of the NLRC and the Labor
Arbiter since the SDA had fully participated in the trials and hearings of the case from
start to finish. The Court has already ruled that the active participation of a party against
whom the action war brought, coupled with his failure to object to the jurisdiction of the
court or quasi-judicial body where the action is pending, is tantamount to an invocation
of that jurisdiction and a willingness to abide by the resolution of the case and will bar
said party from later on impugning the court or body's jurisdiction. 25 Thus, the active
participation of private respondents in the proceedings before the Labor Arbiter and the
NLRC mooted the question on jurisdiction.
The jurisdictional question now settled, we shall now proceed to determine whether the
dismissal of petitioner was valid.

At the outset, we note that as a general rule, findings of fact of administrative bodies like
the NLRC are binding upon this Court. A review of such findings is justified, however, in
instances when the findings of the NLRC differ from those of the labor arbiter, as in this
case.26 When the findings of NLRC do not agree with those of the Labor Arbiter, this
Court must of necessity review the records to determine which findings should be
preferred as more comfortable to the evidentiary facts. 27

We turn now to the crux of the matter. In termination cases, the settled rule is that the
burden of proving that the termination was for a valid or authorized cause rests on the
employer.28 Thus, private respondents must not merely rely on the weaknesses of
petitioner's evidence but must stand on the merits of their own defense.

The issue being the legality of petitioner's dismissal, the same must be measured
against the requisites for a valid dismissal, namely: (a) the employee must be afforded
due process, i.e., he must be given an opportunity to be heard and to defend himself,
and; (b) the dismissal must be for a valid cause as provided in Article 282 of the Labor
Code.29 Without the concurrence of this twin requirements, the termination would, in the
eyes of the law, be illegal.30

Before the services of an employee can be validly terminated, Article 277 (b) of the
Labor Code and Section 2, Rule XXIII, Book V of the Rules Implementing the Labor
Code further require the employer to furnish the employee with two (2) written notices,
to wit: (a) a written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within which to explain
his side; and, (b) a written notice of termination served on the employee indicating that
upon due consideration of all the circumstances, grounds have been established to
justify his termination.

The first notice, which may be considered as the proper charge, serves to apprise the
employee of the particular acts or omissions for which his dismissal is sought. 31 The
second notice on the other hand seeks to inform the employee of the employer's
decision to dismiss him.32 This decision, however, must come only after the employee is
given a reasonable period from receipt of the first notice within which to answer the
charge and ample opportunity to be heard and defend himself with the assistance of a
representative, if he so desires.33 This is in consonance with the express provision of
the law on the protection to labor and the broader dictates of procedural due
process.34 Non-compliance therewith is fatal because these requirements are
conditions sine qua non before dismissal may be validly effected.35

Private respondent failed to substantially comply with the above requirements. With
regard to the first notice, the letter, 36 dated 17 October 1991, which notified petitioner
and his wife to attend the meeting on 21 October 1991, cannot be construed as the
written charge required by law. A perusal of the said letter reveals that it never
categorically stated the particular acts or omissions on which petitioner's impending
termination was grounded. In fact, the letter never even mentioned that petitioner would
be subject to investigation. The letter merely mentioned that petitioner and his wife were
invited to a meeting wherein what would be discussed were the alleged unremitted
church tithes and the events that transpired on 16 October 1991. Thus, petitioner was
surprised to find out that the alleged meeting turned out to be an investigation. From the
tenor of the letter, it cannot be presumed that petitioner was actually on the verge of
dismissal. The alleged grounds for the dismissal of petitioner from the service were only
revealed to him when the actual letter of dismissal was finally issued. For this reason, it
cannot be said that petitioner was given enough opportunity to properly prepare for his
defense. While admittedly, private respondents complied with the second requirement,
the notice of termination, this does not cure the initial defect of lack of the proper written
charge required by law.

In the letter of termination,37 dated 29 October 1991, private respondents enumerated

the following as grounds for the dismissal of petitioner, namely: misappropriation of
denominational funds, willful breach of trust, serious misconduct, gross and habitual
neglect of duties, and commission of an offense against the person of employer's duly
authorized representative. Breach of trust and misappropriation of denominational funds
refer to the alleged failure of petitioner to remit to the treasurer of the Negros Mission
tithes, collections and offerings amounting to P15,078.10 which were collected by his
wife, Mrs. Thelma Austria, in the churches under his jurisdiction. On the other hand,
serious misconduct and commission of an offense against the person of the employer's
duly authorized representative pertain to the 16 October 1991 incident wherein
petitioner allegedly committed an act of violence in the office of Pastor Gideon Buhat.
The final ground invoked by private respondents is gross and habitual neglect of duties
allegedly committed by petitioner.

We cannot sustain the validity of dismissal based on the ground of breach of trust.
Private respondents allege that they have lost their confidence in petitioner for his
failure, despite demands, to remit the tithes and offerings amounting to P15,078.10,
which were collected in his district. A careful study of the voluminous records of the
case reveals that there is simply no basis for the alleged loss of confidence and breach
of trust. Settled is the rule that under Article 282 (c) of the Labor Code, the breach of
trust must be willful. A breach is willful if it is done intentionally, knowingly and
purposely, without justifiable excuse, as distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently. 38 It must rest on substantial grounds and not
on the employer's arbitrariness, whims, caprices or suspicion; otherwise the employee
would eternally remain at the mercy of the employer. 39 It should be genuine and not
simulated.40 This ground has never been intended to afford an occasion for abuse,
because of its subjective nature. The records show that there were only six (6)
instances when petitioner personally collected and received from the church treasurers
the tithes, collections, and donations for the church. 41 The stenographic notes on the
testimony of Naomi Geniebla, the Negros Mission Church Auditor and a witness for
private respondents, show that Pastor Austria was able to remit all his collections to the
treasurer of the Negros Mission.42
Though private respondents were able to establish that petitioner collected and received
tithes and donations several times, they were notable to establish that petitioner failed
to remit the same to the Negros Mission, and that he pocketed the amount and used it
for his personal purpose. In fact, as admitted by their own witness, Naomi Geniebla,
petitioner remitted the amounts which he collected to the Negros Mission for which
corresponding receipts were issued to him. Thus, the allegations of private respondents
that petitioner breached their trust have no leg to stand on.

In a vain attempt to support their claim of breach of trust, private respondents try to pin
on petitioner the alleged non-remittance of the tithes collected by his wife. This
argument deserves little consideration. First of all, as proven by convincing and
substantial evidence consisting of the testimonies of the witnesses for private
respondents who are church treasurers, it was Mrs. Thelma Austria who actually
collected the tithes and donations from them, and, who failed to remit the same to the
treasurer of the Negros Mission. The testimony of these church treasurers were
corroborated and confirmed by Ms. Geniebla and Mr. Ibesate, officers of the SDA.
Hence, in the absence of conspiracy and collusion, which private respondents failed to
demonstrate, between petitioner and his wife, petitioner cannot be made accountable
for the alleged infraction committed by his wife. After all, they still have separate and
distinct personalities. For this reason, the Labor Arbiter found it difficult to see the basis
for the alleged loss of confidence and breach of trust. The Court does not find any
cogent reason, therefore, to digress from the findings of the Labor Arbiter which is fully
supported by the evidence on record.

With respect to the grounds of serious misconduct and commission of an offense

against the person of the employer's duly authorized representative, we find the same
unmeritorious and, as such, do not warrant petitioner's dismissal from the service.

Misconduct has been defined as improper or wrong conduct. It is the transgression of

some established and definite rule of action, a forbidden act, a dereliction of duty, willful
in character, and implies wrongful intent and not mere error in judgment. 43 For
misconduct to be considered serious it must be of such grave and aggravated character
and not merely trivial or unimportant.44 Based on this standard, we believe that the act
of petitioner in banging the attaché case on the table, throwing the telephone and
scattering the books in the office of Pastor Buhat, although improper, cannot be
considered as grave enough to be considered as serious misconduct. After all, as
correctly observed by the Labor Arbiter, though petitioner committed damage to
property, he did not physically assault Pastor Buhat or any other pastor present during
the incident of 16 October 1991. In fact, the alleged offense committed upon the person
of the employer's representatives was never really established or proven by private
respondents. Hence, there is no basis for the allegation that petitioner's act constituted
serious misconduct or that the same was an offense against the person of the
employer's duly authorized representative. As such, the cited actuation of petitioner
does not justify the ultimate penalty of dismissal from employment. While the
Constitution does condone wrongdoing by the employee, it nevertheless urges a
moderation of the sanctions that may be applied to him in light of the many
disadvantages that weigh heavily on him like an albatross on his neck. 45 Where a
penalty less punitive would suffice, whatever missteps may have been committed by the
worker ought not be visited with a consequence so severe such as dismissal from
employment.46 For the foregoing reasons, we believe that the minor infraction
committed by petitioner does not merit the ultimate penalty of dismissal.

The final ground alleged by private respondents in terminating petitioner, gross and
habitual neglect of duties, does not require an exhaustive discussion. Suffice it to say
that all private respondents had were allegations but not proof. Aside from merely citing
the said ground, private respondents failed to prove culpability on the part of petitioner.
In fact, the evidence on record shows otherwise. Petitioner's rise from the ranks
disclose that he was actually a hard-worker. Private respondents' evidence, 47 which
consisted of petitioner's Worker's Reports, revealed how petitioner travelled to different
churches to attend to the faithful under his care. Indeed, he labored hard for the SDA,
but, in return, he was rewarded with a dismissal from the service for a non-existent
cause.

In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was
terminated from service without just or lawful cause. Having been illegally dismissed,
petitioner is entitled to reinstatement to his former position without loss of seniority
right48 and the payment of full backwages without any deduction corresponding to the
period from his illegal dismissal up to actual reinstatement. 46

WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of

public respondent National Labor Relations Commission, rendered on 23 January 1996,
is NULLIFIED and SET ASIDE. The Decision of the Labor Arbiter, dated 15 February
1993, is REINSTATED and hereby AFFIRMED.1âwphi1.nêt

SO ORDERED.

G.R. No. 153888             July 9, 2003

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by

PROF. ABDULRAFIH H. SAYEDY, petitioner,
vs.
OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the
Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive
Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented by its
Executive Director, HABIB MUJAHAB HASHIM, respondents.

CORONA, J.:

Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the
Philippines, Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46,
s. 2001 and the prohibition of herein respondents Office of the Executive Secretary and
Office of Muslim Affairs (OMA) from implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and
Development License No. SB-01-085, is a non-governmental organization that extends
voluntary services to the Filipino people, especially to Muslim communities. It claims to
be a federation of national Islamic organizations and an active member of international
organizations such as the Regional Islamic Da'wah Council of Southeast Asia and the
Pacific (RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP accredited
petitioner to issue halal2 certifications in the Philippines. Thus, among the functions
petitioner carries out is to conduct seminars, orient manufacturers on halal food and
issue halal certifications to qualified products and manufacturers.

Petitioner alleges that, on account of the actual need to certify food products as halal
and also due to halal food producers' request, petitioner formulated in 1995 internal
rules and procedures based on the Qur'an 3 and the Sunnah4 for the analysis of food,
inspection thereof and issuance of halal certifications. In that same year, petitioner
began to issue, for a fee, certifications to qualified products and food manufacturers.
Petitioner even adopted for use on its halal certificates a distinct sign or logo registered
in the Philippine Patent Office under Patent No. 4-2000-03664.

On October 26, 2001, respondent Office of the Executive Secretary issued EO

465 creating the Philippine Halal Certification Scheme and designating respondent OMA
to oversee its implementation. Under the EO, respondent OMA has the exclusive
authority to issue halal certificates and perform other related regulatory activities.

On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal'
Certification" was published in the Manila Bulletin, a newspaper of general circulation. In
said article, OMA warned Muslim consumers to buy only products with its official halal
certification since those without said certification had not been subjected to careful
analysis and therefore could contain pork or its derivatives. Respondent OMA also sent
letters to food manufacturers asking them to secure the halal certification only from
OMA lest they violate EO 46 and RA 4109.6 As a result, petitioner lost revenues after
food manufacturers stopped securing certifications from it.

Hence, this petition for prohibition.

Petitioner contends that the subject EO violates the constitutional provision on the
separation of Church and State.7 It is unconstitutional for the government to formulate
policies and guidelines on the halal certification scheme because said scheme is a
function only religious organizations, entity or scholars can lawfully and validly perform
for the Muslims. According to petitioner, a food product becomes halal only after the
performance of Islamic religious ritual and prayer. Thus, only practicing Muslims are
qualified to slaughter animals for food. A government agency like herein respondent
OMA cannot therefore perform a religious function like certifying qualified food products
as halal.

Petitioner also maintains that the respondents violated Section 10, Article III of the 1987
Constitution which provides that "(n)o law impairing the obligation of contracts, shall be
passed." After the subject EO was implemented, food manufacturers with existing
contracts with petitioner ceased to obtain certifications from the latter.

Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article
XIII of the 1987 Constitution which respectively provide:

ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Sec. 15. The State shall respect the role of independent people's organizations to
enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful
means.

People's organizations are bona fide associations of citizens with demonstrated

capacity to promote the public interest and with identifiable leadership,
membership, and structure.

Sec. 16. The rights of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic decision-
making shall not be abridged. The State shall, by law, facilitate, the
establishment of adequate consultation mechanisms.

According to petitioner, the subject EO was issued with utter haste and without even
consulting Muslim people's organizations like petitioner before it became effective.

We grant the petition.

OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the
integration of Muslim Filipinos into the mainstream of Filipino society with due regard to
their beliefs, customs, traditions, and institutions."8 OMA deals with the societal, legal,
political and economic concerns of the Muslim community as a "national cultural
community" and not as a religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that OMA does not intrude
into purely religious matters lest it violate the non-establishment clause and the "free
exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution. 9

Freedom of religion was accorded preferred status by the framers of our fundamental
law. And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good." 10

Without doubt, classifying a food product as halal is a religious function because the
standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the
exclusive power to classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret for Filipino Muslims
what food products are fit for Muslim consumption. Also, by arrogating to itself the task
of issuing halal certifications, the State has in effect forced Muslims to accept its own
interpretation of the Qur'an and Sunnah on halal food.

To justify EO 46's intrusion into the subject religious activity, the Solicitor General
argues that the freedom of religion is subservient to the police power of the State. By
delegating to OMA the authority to issue halal certifications, the government allegedly
seeks to protect and promote the muslim Filipinos' right to health, and to instill health
consciousness in them.

We disagree.

Only the prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. 11 If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable. In a society with a democratic framework like ours, the State must
minimize its interference with the affairs of its citizens and instead allow them to
exercise reasonable freedom of personal and religious activity.

In the case at bar, we find no compelling justification for the government to deprive
muslim organizations, like herein petitioner, of their religious right to classify a product
as halal, even on the premise that the health of muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal certifications. The
protection and promotion of the muslim Filipinos' right to health are already provided for
in existing laws and ministered to by government agencies charged with ensuring that
food products released in the market are fit for human consumption, properly labeled
and safe. Unlike EO 46, these laws do not encroach on the religious freedom of
muslims.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect
slaughtered animals intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as "The Consumer Act
of 1992," gives to certain government departments the duty to protect the interests of
the consumer, promote his general welfare and to establish standards of conduct for
business and industry.12 To this end, a food product, before its distribution to the market,
is required to secure the Philippine Standard Certification Mark after the concerned
department inspects and certifies its compliance with quality and safety standards. 13

One such government agency designated by RA 7394 is the Bureau of Food and Drugs
(BFD) of the Department of Health (DOH). Under Article 22 of said law, BFD has the
duty to promulgate and enforce rules and regulations fixing and establishing a
reasonable definition and standard of identity, a standard of quality and a standard of fill
of containers for food. The BFD also ensures that food products released in the market
are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI)
is tasked to protect the consumer against deceptive, unfair and unconscionable sales
acts or practices as defined in Article 50.15 DTI also enforces compulsory labeling and
fair packaging to enable the consumer to obtain accurate information as to the nature,
quality and quantity of the contents of consumer products and to facilitate his
comparison of the value of such products. 16

With these regulatory bodies given detailed functions on how to screen and check the
quality and safety of food products, the perceived danger against the health of muslim
and non-muslim Filipinos alike is totally avoided. Of great help are the provisions on
labeling of food products (Articles 74 to 85)17 of RA 7394. In fact, through these labeling
provisions, the State ably informs the consuming public of the contents of food products
released in the market. Stiff sanctions are imposed on violators of said labeling
requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids muslim
consumers in differentiating food from non-food products. The NMIC guarantees that
the meat sold in the market has been thoroughly inspected and fit for consumption.
Meanwhile, BFD ensures that food products are properly categorized and have passed
safety and quality standards. Then, through the labeling provisions enforced by the DTI,
muslim consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human intake. These
are the non-secular steps put in place by the State to ensure that the muslim
consumers' right to health is protected. The halal certifications issued by petitioner and
similar organizations come forward as the official religious approval of a food product fit
for muslim consumption.

We do not share respondents' apprehension that the absence of a central administrative

body to regulate halal certifications might give rise to schemers who, for profit, will issue
certifications for products that are not actually halal. Aside from the fact that muslim
consumers can actually verify through the labels whether a product contains non-food
substances, we believe that they are discerning enough to know who the reliable and
competent certifying organizations in their community are. Before purchasing a product,
they can easily avert this perceived evil by a diligent inquiry on the reliability of the
concerned certifying organization.

WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby

declared NULL AND VOID. Consequently, respondents are prohibited from enforcing
the same.

G.R. No. 159357             April 28, 2004

Brother MARIANO "MIKE" Z. VELARDE, petitioner,

vs.
SOCIAL JUSTICE SOCIETY, respondent.
 DECISION

PANGANIBAN, J.:

A decision that does not conform to the form and substance required by the Constitution
and the law is void and deemed legally inexistent. To be valid, decisions should comply
with the form, the procedure and the substantive requirements laid out in the
Constitution, the Rules of Court and relevant circulars/orders of the Supreme Court. For
the guidance of the bench and the bar, the Court hereby discusses these forms,
procedures and requirements.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the
June 12, 2003 Decision2 and July 29, 2003 Order3 of the Regional Trial Court (RTC) of
Manila (Branch 49).4

The challenged Decision was the offshoot of a Petition for Declaratory Relief 5 filed
before the RTC-Manila by herein Respondent Social Justice Society (SJS) against
herein Petitioner Mariano "Mike" Z. Velarde, together with His Eminence, Jaime
Cardinal Sin, Executive Minister Eraño Manalo, Brother Eddie Villanueva and Brother
Eliseo F. Soriano as co-respondents. The Petition prayed for the resolution of the
question "whether or not the act of a religious leader like any of herein respondents, in
endorsing the candidacy of a candidate for elective office or in urging or requiring the
members of his flock to vote for a specified candidate, is violative of the letter or spirit of
the constitutional provisions x x x."6

Alleging that the questioned Decision did not contain a statement of facts and a
dispositive portion, herein petitioner filed a Clarificatory Motion and Motion for
Reconsideration before the trial court. Soriano, his co-respondent, similarly filed a
separate Motion for Reconsideration. In response, the trial court issued the assailed
Order, which held as follows:

"x x x [T]his Court cannot reconsider, because what it was asked to do, was only
to clarify a Constitutional provision and to declare whether acts are violative
thereof. The Decision did not make a dispositive portion because a dispositive
portion is required only in coercive reliefs, where a redress from wrong suffered
and the benefit that the prevailing party wronged should get. The step that these
movants have to take, is direct appeal under Rule 45 of the Rules of Court, for a
conclusive interpretation of the Constitutional provision to the Supreme Court." 7

The Antecedent Proceedings

On January 28, 2003, SJS filed a Petition for Declaratory Relief ("SJS Petition") before
the RTC-Manila against Velarde and his aforesaid co-respondents. SJS, a registered
political party, sought the interpretation of several constitutional provisions, 8 specifically
on the separation of church and state; and a declaratory judgment on the
constitutionality of the acts of religious leaders endorsing a candidate for an elective
office, or urging or requiring the members of their flock to vote for a specified candidate.

The subsequent proceedings were recounted in the challenged Decision in these

words:

"x x x. Bro. Eddie Villanueva submitted, within the original period [to file an
Answer], a Motion to Dismiss. Subsequently, Executive Minister Eraño Manalo
and Bro. Mike Velarde, filed their Motions to Dismiss. While His Eminence Jaime
Cardinal L. Sin, filed a Comment and Bro. Eli Soriano, filed an Answer within the
extended period and similarly prayed for the dismissal of the Petition. All sought
the dismissal of the Petition on the common grounds that it does not state a
cause of action and that there is no justiciable controversy. They were ordered to
submit a pleading by way of advisement, which was closely followed by another
Order denying all the Motions to Dismiss. Bro. Mike Velarde, Bro. Eddie
Villanueva and Executive Minister Eraño Manalo moved to reconsider the denial.
His Eminence Jaime Cardinal L. Sin, asked for extension to file memorandum.
Only Bro. Eli Soriano complied with the first Order by submitting his
Memorandum. x x x.

"x x x the Court denied the Motions to Dismiss, and the Motions for
Reconsideration filed by Bro. Mike Velarde, Bro. Eddie Villanueva and Executive
Minister Eraño Manalo, which raised no new arguments other than those already
considered in the motions to dismiss x x x."9

After narrating the above incidents, the trial court said that it had jurisdiction over the
Petition, because "in praying for a determination as to whether the actions imputed to
the respondents are violative of Article II, Section 6 of the Fundamental Law, [the
Petition] has raised only a question of law." 10 It then proceeded to a lengthy discussion
of the issue raised in the Petition – the separation of church and state – even tracing, to
some extent, the historical background of the principle. Through its discourse, the
court a quo opined at some point that the "[e]ndorsement of specific candidates in an
election to any public office is a clear violation of the separation clause." 11

After its essay on the legal issue, however, the trial court failed to include a dispositive
portion in its assailed Decision. Thus, Velarde and Soriano filed separate Motions for
Reconsideration which, as mentioned earlier, were denied by the lower court.

Hence, this Petition for Review.12

This Court, in a Resolution13 dated September 2, 2003, required SJS and the Office of
the Solicitor General (OSG) to submit their respective comments. In the same
Resolution, the Court gave the other parties -- impleaded as respondents in the original
case below --the opportunity to comment, if they so desired.
On April 13, 2004, the Court en banc conducted an Oral Argument. 14

The Issues

In his Petition, Brother Mike Velarde submits the following issues for this Court’s
resolution:

"1. Whether or not the Decision dated 12 June 2003 rendered by the court a
quo was proper and valid;

"2. Whether or not there exists justiceable controversy in herein respondent’s

Petition for declaratory relief;

"3. Whether or not herein respondent has legal interest in filing the Petition for
declaratory relief;

"4. Whether or not the constitutional question sought to be resolved by herein

respondent is ripe for judicial determination;

"5. Whether or not there is adequate remedy other than the declaratory relief;
and,

"6. Whether or not the court a quo has jurisdiction over the Petition for
declaratory relief of herein respondent." 15

During the Oral Argument, the issues were narrowed down and classified as follows:

"A. Procedural Issues

"Did the Petition for Declaratory Relief raise a justiciable controversy? Did it state
a cause of action? Did respondent have any legal standing to file the Petition for
Declaratory Relief?

"B. Substantive Issues

"1. Did the RTC Decision conform to the form and substance required by
the Constitution, the law and the Rules of Court?

"2. May religious leaders like herein petitioner, Bro. Mike Velarde, be
prohibited from endorsing candidates for public office? Corollarily, may
they be banned from campaigning against said candidates?"

The Court’s Ruling

The Petition of Brother Mike Velarde is meritorious.

 Procedural Issues:

Requisites of Petitions for Declaratory Relief

Section 1 of Rule 63 of the Rules of Court, which deals with petitions for declaratory
relief, provides in part:

"Section 1. Who may file petition.- Any person interested under a deed, will,
contract or other written instrument, whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising,
and for a declaration of his rights or duties thereunder."

Based on the foregoing, an action for declaratory relief should be filed by a person
interested under a deed, a will, a contract or other written instrument, and whose rights
are affected by a statute, an executive order, a regulation or an ordinance. The purpose
of the remedy is to interpret or to determine the validity of the written instrument and to
seek a judicial declaration of the parties’ rights or duties thereunder. 16 The essential
requisites of the action are as follows: (1) there is a justiciable controversy; (2) the
controversy is between persons whose interests are adverse; (3) the party seeking the
relief has a legal interest in the controversy; and (4) the issue is ripe for judicial
determination.17

Justiciable Controversy

Brother Mike Velarde contends that the SJS Petition failed to allege, much less
establish before the trial court, that there existed a justiciable controversy or an adverse
legal interest between them; and that SJS had a legal right that was being violated or
threatened to be violated by petitioner. On the contrary, Velarde alleges that SJS
premised its action on mere speculations, contingent events, and hypothetical issues
that had not yet ripened into an actual controversy. Thus, its Petition for Declaratory
Relief must fail.

A justiciable controversy refers to an existing case or controversy that is appropriate or

ripe for judicial determination, not one that is conjectural or merely anticipatory. 18 The
SJS Petition for Declaratory Relief fell short of this test. It miserably failed to allege an
existing controversy or dispute between the petitioner and the named respondents
therein. Further, the Petition did not sufficiently state what specific legal right of the
petitioner was violated by the respondents therein; and what particular act or acts of the
latter were in breach of its rights, the law or the Constitution.

As pointed out by Brother Eliseo F. Soriano in his Comment, 19 what exactly has he done
that merited the attention of SJS? He confesses that he does not know the answer,
because the SJS Petition (as well as the assailed Decision of the RTC) "yields nothing
in this respect." His Eminence, Jaime Cardinal Sin, adds that, at the time SJS filed its
Petition on January 28, 2003, the election season had not even started yet; and that, in
any event, he has not been actively involved in partisan politics.

An initiatory complaint or petition filed with the trial court should contain "a plain, concise
and direct statement of the ultimate facts on which the party pleading relies for his claim
x x x."20 Yet, the SJS Petition stated no ultimate facts.

Indeed, SJS merely speculated or anticipated without factual moorings that, as religious
leaders, the petitioner and his co-respondents below had endorsed or threatened to
endorse a candidate or candidates for elective offices; and that such actual or
threatened endorsement "will enable [them] to elect men to public office who [would] in
turn be forever beholden to their leaders, enabling them to control the
government"[;]21 and "pos[ing] a clear and present danger of serious erosion of the
people’s faith in the electoral process[;] and reinforc[ing] their belief that religious
leaders determine the ultimate result of elections," 22 which would then be violative of the
separation clause.

Such premise is highly speculative and merely theoretical, to say the least. Clearly, it
does not suffice to constitute a justiciable controversy. The Petition does not even
allege any indication or manifest intent on the part of any of the respondents below to
champion an electoral candidate, or to urge their so-called flock to vote for, or not to
vote for, a particular candidate. It is a time-honored rule that sheer speculation does not
give rise to an actionable right.

Obviously, there is no factual allegation that SJS’ rights are being subjected to any
threatened, imminent and inevitable violation that should be prevented by the
declaratory relief sought. The judicial power and duty of the courts to settle actual
controversies involving rights that are legally demandable and enforceable 23 cannot be
exercised when there is no actual or threatened violation of a legal right.

All that the 5-page SJS Petition prayed for was "that the question raised in paragraph 9
hereof be resolved."24 In other words, it merely sought an opinion of the trial court on
whether the speculated acts of religious leaders endorsing elective candidates for
political offices violated the constitutional principle on the separation of church and
state. SJS did not ask for a declaration of its rights and duties; neither did it pray for the
stoppage of any threatened violation of its declared rights. Courts, however, are
proscribed from rendering an advisory opinion.25

Cause of Action

Respondent SJS asserts that in order to maintain a petition for declaratory relief, a
cause of action need not be alleged or proven. Supposedly, for such petition to prosper,
there need not be any violation of a right, breach of duty or actual wrong committed by
one party against the other.
Petitioner, on the other hand, argues that the subject matter of an action for declaratory
relief should be a deed, a will, a contract (or other written instrument), a statute, an
executive order, a regulation or an ordinance. But the subject matter of the SJS Petition
is "the constitutionality of an act of a religious leader to endorse the candidacy of a
candidate for elective office or to urge or require the members of the flock to vote for a
specified candidate."26 According to petitioner, this subject matter is "beyond the realm
of an action for declaratory relief." 27 Petitioner avers that in the absence of a valid
subject matter, the Petition fails to state a cause of action and, hence, should have been
dismissed outright by the court a quo.

A cause of action is an act or an omission of one party in violation of the legal right or
rights of another, causing injury to the latter.28 Its essential elements are the following:
(1) a right in favor of the plaintiff; (2) an obligation on the part of the named defendant to
respect or not to violate such right; and (3) such defendant’s act or omission that is
violative of the right of the plaintiff or constituting a breach of the obligation of the former
to the latter.29

The failure of a complaint to state a cause of action is a ground for its outright
dismissal.30 However, in special civil actions for declaratory relief, the concept of a
cause of action under ordinary civil actions does not strictly apply. The reason for this
exception is that an action for declaratory relief presupposes that there has been no
actual breach of the instruments involved or of rights arising thereunder. 31 Nevertheless,
a breach or violation should be impending, imminent or at least threatened.

A perusal of the Petition filed by SJS before the RTC discloses no explicit allegation that
the former had any legal right in its favor that it sought to protect. We can only infer the
interest, supposedly in its favor, from its bare allegation that it "has thousands of
members who are citizens-taxpayers-registered voters and who are keenly interested in
a judicial clarification of the constitutionality of the partisan participation of religious
leaders in Philippine politics and in the process to insure adherence to the Constitution
by everyone x x x."32

Such general averment does not, however, suffice to constitute a legal right or interest.
Not only is the presumed interest not personal in character; it is likewise too vague,
highly speculative and uncertain.33 The Rules require that the interest must be material
to the issue and affected by the questioned act or instrument, as distinguished from
simple curiosity or incidental interest in the question raised. 34

To bolster its stance, SJS cites the Corpus Juris Secundum and submits that the
"[p]laintiff in a declaratory judgment action does not seek to enforce a claim against [the]
defendant, but seeks a judicial declaration of [the] rights of the parties for the purpose of
guiding [their] future conduct, and the essential distinction between a ‘declaratory
judgment action’ and the usual ‘action’ is that no actual wrong need have been
committed or loss have occurred in order to sustain the declaratory judgment action,
although there must be no uncertainty that the loss will occur or that the asserted rights
will be invaded."35
SJS has, however, ignored the crucial point of its own reference – that there must be no
uncertainty that the loss will occur or that the asserted rights will be invaded. Precisely,
as discussed earlier, it merely conjectures that herein petitioner (and his co-respondents
below) might actively participate in partisan politics, use "the awesome voting strength
of its faithful flock [to] enable it to elect men to public office x x x, enabling [it] to control
the government."36

During the Oral Argument, though, Petitioner Velarde and his co-respondents below all
strongly asserted that they had not in any way engaged or intended to participate in
partisan politics. They all firmly assured this Court that they had not done anything to
trigger the issue raised and to entitle SJS to the relief sought.

Indeed, the Court finds in the Petition for Declaratory Relief no single allegation of fact
upon which SJS could base a right of relief from the named respondents. In any event,
even granting that it sufficiently asserted a legal right it sought to protect, there was
nevertheless no certainty that such right would be invaded by the said respondents. Not
even the alleged proximity of the elections to the time the Petition was filed below
(January 28, 2003) would have provided the certainty that it had a legal right that would
be jeopardized or violated by any of those respondents.

Legal Standing

Legal standing or locus standi has been defined as a personal and substantial interest
in the case, such that the party has sustained or will sustain direct injury as a result of
the challenged act.37 Interest means a material interest in issue that is affected by the
questioned act or instrument, as distinguished from a mere incidental interest in the
question involved.38

Petitioner alleges that "[i]n seeking declaratory relief as to the constitutionality of an act
of a religious leader to endorse, or require the members of the religious flock to vote for
a specific candidate, herein Respondent SJS has no legal interest in the
controversy";39 it has failed to establish how the resolution of the proffered question
would benefit or injure it.

Parties bringing suits challenging the constitutionality of a law, an act or a statute must
show "not only that the law [or act] is invalid, but also that [they have] sustained or [are]
in immediate or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that [they] suffer thereby in some indefinite way." 40 They
must demonstrate that they have been, or are about to be, denied some right or
privilege to which they are lawfully entitled, or that they are about to be subjected to
some burdens or penalties by reason of the statute or act complained of. 41

First, parties suing as taxpayers must specifically prove that they have sufficient interest
in preventing the illegal expenditure of money raised by taxation. 42 A taxpayer’s action
may be properly brought only when there is an exercise by Congress of its taxing or
spending power.43 In the present case, there is no allegation, whether express or
implied, that taxpayers’ money is being illegally disbursed.

Second, there was no showing in the Petition for Declaratory Relief that SJS as a
political party or its members as registered voters would be adversely affected by the
alleged acts of the respondents below, if the question at issue was not resolved. There
was no allegation that SJS had suffered or would be deprived of votes due to the acts
imputed to the said respondents. Neither did it allege that any of its members would be
denied the right of suffrage or the privilege to be voted for a public office they are
seeking.

Finally, the allegedly keen interest of its "thousands of members who are citizens-
taxpayers-registered voters" is too general 44 and beyond the contemplation of the
standards set by our jurisprudence. Not only is the presumed interest impersonal in
character; it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing.45

Transcendental Importance

In any event, SJS urges the Court to take cognizance of the Petition, even sans legal
standing, considering that "the issues raised are of paramount public interest."

In not a few cases, the Court has liberalized the locus standi requirement when a
petition raises an issue of transcendental significance or paramount importance to the
people.46 Recently, after holding that the IBP had no locus standi to bring the suit, the
Court in IBP v. Zamora47 nevertheless entertained the Petition therein. It noted that "the
IBP has advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents." 48

Similarly in the instant case, the Court deemed the constitutional issue raised in the SJS
Petition to be of paramount interest to the Filipino people. The issue did not simply
concern a delineation of the separation between church and state, but ran smack into
the governance of our country. The issue was both transcendental in importance and
novel in nature, since it had never been decided before.

The Court, thus, called for Oral Argument to determine with certainty whether it could
resolve the constitutional issue despite the barren allegations in the SJS Petition as well
as the abbreviated proceedings in the court below. Much to its chagrin, however,
counsels for the parties -- particularly for Respondent SJS -- made no satisfactory
allegations or clarifications that would supply the deficiencies hereinabove discussed.
Hence, even if the Court would exempt this case from the stringent locus
standi requirement, such heroic effort would be futile because the transcendental issue
cannot be resolved anyway.

Proper Proceedings Before the Trial Court

To prevent a repetition of this waste of precious judicial time and effort, and for the
guidance of the bench and the bar, the Court reiterates the elementary procedure49 that
must be followed by trial courts in the conduct of civil cases. 50

Prefatorily, the trial court may -- motu proprio or upon motion of the defendant -- dismiss
a complaint51 (or petition, in a special civil action) that does not allege the plaintiff’s (or
petitioner’s) cause or causes of action.52 A complaint or petition should contain "a plain,
concise and direct statement of the ultimate facts on which the party pleading relies for
his claim or defense."53 It should likewise clearly specify the relief sought. 54

Upon the filing of the complaint/petition and the payment of the requisite legal fees, the
clerk of court shall forthwith issue the corresponding summons to the defendants or the
respondents, with a directive that the defendant answer 55 within 15 days, unless a
different period is fixed by the court. 56 The summons shall also contain a notice that if
such answer is not filed, the plaintiffs/petitioners shall take a judgment by default and
may be granted the relief applied for.57 The court, however, may -- upon such terms as
may be just -- allow an answer to be filed after the time fixed by the Rules. 58

If the answer sets forth a counterclaim or cross-claim, it must be answered within ten
(10) days from service.59 A reply may be filed within ten (10) days from service of the
pleading responded to.60

When an answer fails to tender an issue or admits the material allegations of the
adverse party’s pleading, the court may, on motion of that party, direct judgment on
such pleading (except in actions for declaration of nullity or annulment of marriage or for
legal separation).61 Meanwhile, a party seeking to recover upon a claim, a counterclaim
or crossclaim -- or to obtain a declaratory relief -- may, at any time after the answer
thereto has been served, move for a summary judgment in its favor. 62 Similarly, a party
against whom a claim, a counterclaim or crossclaim is asserted -- or a declaratory relief
sought -- may, at any time, move for a summary judgment in its favor. 63 After the motion
is heard, the judgment sought shall be rendered forthwith if there is a showing that,
except as to the amount of damages, there is no genuine issue as to any material fact;
and that the moving party is entitled to a judgment as a matter of law. 64

Within the time for -- but before -- filing the answer to the complaint or petition, the
defendant may file a motion to dismiss based on any of the grounds stated in Section 1
of Rule 16 of the Rules of Court. During the hearing of the motion, the parties shall
submit their arguments on the questions of law, and their evidence on the questions of
fact.65 After the hearing, the court may dismiss the action or claim, deny the motion, or
order the amendment of the pleadings. It shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable. In every case, the resolution
shall state clearly and distinctly the reasons therefor. 66

If the motion is denied, the movant may file an answer within the balance of the period
originally prescribed to file an answer, but not less than five (5) days in any event,
computed from the receipt of the notice of the denial. If the pleading is ordered to be
amended, the defendant shall file an answer within fifteen (15) days, counted from the
service of the amended pleading, unless the court provides a longer period. 67

After the last pleading has been served and filed, the case shall be set for
pretrial,68 which is a mandatory proceeding.69 A plaintiff’s/ petitioner’s (or its duly
authorized representative’s) non-appearance at the pretrial, if without valid cause, shall
result in the dismissal of the action with prejudice, unless the court orders otherwise. A
similar failure on the part of the defendant shall be a cause for allowing the
plaintiff/petitioner to present evidence ex parte, and the court to render judgment on the
basis thereof.70

The parties are required to file their pretrial briefs; failure to do so shall have the same
effect as failure to appear at the pretrial. 71 Upon the termination thereof, the court shall
issue an order reciting in detail the matters taken up at the conference; the action taken
on them, the amendments allowed to the pleadings; and the agreements or admissions,
if any, made by the parties regarding any of the matters considered. 72 The parties may
further avail themselves of any of the modes of discovery, 73 if they so wish.

Thereafter, the case shall be set for trial,74 in which the parties shall adduce their
respective evidence in support of their claims and/or defenses. By their written consent
or upon the application of either party, or on its own motion, the court may also order
any or all of the issues to be referred to a commissioner, who is to be appointed by it or
to be agreed upon by the parties.75 The trial or hearing before the commissioner shall
proceed in all respects as it would if held before the court. 76

Upon the completion of such proceedings, the commissioner shall file with the court a
written report on the matters referred by the parties. 77 The report shall be set for
hearing, after which the court shall issue an order adopting, modifying or rejecting it in
whole or in part; or recommitting it with instructions; or requiring the parties to present
further evidence before the commissioner or the court. 78

Finally, a judgment or final order determining the merits of the case shall be rendered.
The decision shall be in writing, personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is based, signed by the issuing
magistrate, and filed with the clerk of court. 79

Based on these elementary guidelines, let us examine the proceedings before the trial
court in the instant case.

First, with respect to the initiatory pleading of the SJS. Even a cursory perusal of the
Petition immediately reveals its gross inadequacy. It contained no statement of ultimate
facts upon which the petitioner relied for its claim. Furthermore, it did not specify the
relief it sought from the court, but merely asked it to answer a hypothetical question.

Relief, as contemplated in a legal action, refers to a specific coercive measure prayed

for as a result of a violation of the rights of a plaintiff or a petitioner. 80 As already
discussed earlier, the Petition before the trial court had no allegations of fact 81 or of any
specific violation of the petitioner’s rights, which the respondents had a duty to respect.
Such deficiency amounted to a failure to state a cause of action; hence, no coercive
relief could be sought and adjudicated. The Petition evidently lacked substantive
requirements and, we repeat, should have been dismissed at the outset.

Second, with respect to the trial court proceedings. Within the period set to file their
respective answers to the SJS Petition, Velarde, Villanueva and Manalo filed Motions to
Dismiss; Cardinal Sin, a Comment; and Soriano, within a priorly granted extended
period, an Answer in which he likewise prayed for the dismissal of the Petition. 82 SJS
filed a Rejoinder to the Motion of Velarde, who subsequently filed a Sur-Rejoinder.
Supposedly, there were "several scheduled settings, in which the "[c]ourt was apprised
of the respective positions of the parties." 83 The nature of such settings -- whether
pretrial or trial hearings -- was not disclosed in the records. Before ruling on the Motions
to Dismiss, the trial court issued an Order84 dated May 8, 2003, directing the parties to
submit their memoranda. Issued shortly thereafter was another Order 85 dated May 14,
2003, denying all the Motions to Dismiss.

In the latter Order, the trial court perfunctorily ruled:

"The Court now resolves to deny the Motions to Dismiss, and after all the
memoranda are submitted, then, the case shall be deemed as submitted for
resolution."86

Apparently, contrary to the requirement of Section 2 of Rule 16 of the Rules of Court,

the Motions were not heard. Worse, the Order purportedly resolving the Motions to
Dismiss did not state any reason at all for their denial, in contravention of Section 3 of
the said Rule 16. There was not even any statement of the grounds relied upon by the
Motions; much less, of the legal findings and conclusions of the trial court.

Thus, Velarde, Villanueva and Manalo moved for reconsideration. Pending the
resolution of these Motions for Reconsideration, Villanueva filed a Motion to suspend
the filing of the parties’ memoranda. But instead of separately resolving the pending
Motions fairly and squarely, the trial court again transgressed the Rules of Court when it
immediately proceeded to issue its Decision, even before tackling the issues raised in
those Motions.

Furthermore, the RTC issued its "Decision" without allowing the parties to file their
answers. For this reason, there was no joinder of the issues. If only it had allowed the
filing of those answers, the trial court would have known, as the Oral Argument
revealed, that the petitioner and his co-respondents below had not committed or
threatened to commit the act attributed to them (endorsing candidates) -- the act that
was supposedly the factual basis of the suit.
Parenthetically, the court a quo further failed to give a notice of the Petition to the OSG,
which was entitled to be heard upon questions involving the constitutionality or validity
of statutes and other measures.87

Moreover, as will be discussed in more detail, the questioned Decision of the trial court
was utterly wanting in the requirements prescribed by the Constitution and the Rules of
Court.

All in all, during the loosely abbreviated proceedings of the case, the trial court indeed
acted with inexplicable haste, with total ignorance of the law -- or, worse, in cavalier
disregard of the rules of procedure -- and with grave abuse of discretion.

Contrary to the contentions of the trial judge and of SJS, proceedings for declaratory
relief must still follow the process described above -- the petition must state a cause of
action; the proceedings must undergo the procedure outlined in the Rules of Court; and
the decision must adhere to constitutional and legal requirements.

First Substantive Issue:

Fundamental Requirements of a Decision

The Constitution commands that "[n]o decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based. No
petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the basis therefor." 88

Consistent with this constitutional mandate, Section 1 of Rule 36 of the Rules on Civil
Procedure similarly provides:

"Sec. 1. Rendition of judgments and final orders. – A judgment or final order

determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him and filed with the clerk of court."

In the same vein, Section 2 of Rule 120 of the Rules of Court on Criminal Procedure
reads as follows:

"Sec. 2. Form and contents of judgments. -- The judgment must be written in the
official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.

"x x x           x x x           x x x."

Pursuant to the Constitution, this Court also issued on January 28, 1988, Administrative
Circular No. 1, prompting all judges "to make complete findings of facts in their
decisions, and scrutinize closely the legal aspects of the case in the light of the
evidence presented. They should avoid the tendency to generalize and form
conclusions without detailing the facts from which such conclusions are deduced."

In many cases,89 this Court has time and time again reminded "magistrates to heed the
demand of Section 14, Article VIII of the Constitution." The Court, through Chief Justice
Hilario G. Davide Jr. in Yao v. Court of Appeals,90 discussed at length the implications of
this provision and strongly exhorted thus:

"Faithful adherence to the requirements of Section 14, Article VIII of the Constitution is
indisputably a paramount component of due process and fair play. It is likewise
demanded by the due process clause of the Constitution. The parties to a litigation
should be informed of how it was decided, with an explanation of the factual and legal
reasons that led to the conclusions of the court. The court cannot simply say that
judgment is rendered in favor of X and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is entitled to know why he lost, so
he may appeal to the higher court, if permitted, should he believe that the decision
should be reversed. A decision that does not clearly and distinctly state the facts and
the law on which it is based leaves the parties in the dark as to how it was reached and
is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors
of the court for review by a higher tribunal. More than that, the requirement is an
assurance to the parties that, in reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the
judge, preventing him from deciding ipse dixit. Vouchsafed neither the sword nor the
purse by the Constitution but nonetheless vested with the sovereign prerogative of
passing judgment on the life, liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained public confidence in the
justness of his decision."

In People v. Bugarin,91 the Court also explained:

"The requirement that the decisions of courts must be in writing and that they
must set forth clearly and distinctly the facts and the law on which they are based
serves many functions. It is intended, among other things, to inform the parties of
the reason or reasons for the decision so that if any of them appeals, he can
point out to the appellate court the finding of facts or the rulings on points of law
with which he disagrees. More than that, the requirement is an assurance to the
parties that, in reaching judgment, the judge did so through the processes of
legal reasoning. x x x."

Indeed, elementary due process demands that the parties to a litigation be given
information on how the case was decided, as well as an explanation of the factual and
legal reasons that led to the conclusions of the court. 92

In Madrid v. Court of Appeals,93 this Court had instructed magistrates to exert effort to

ensure that their decisions would present a comprehensive analysis or account of the
factual and legal findings that would substantially address the issues raised by the
parties.

In the present case, it is starkly obvious that the assailed Decision contains no
statement of facts -- much less an assessment or analysis thereof -- or of the court’s
findings as to the probable facts. The assailed Decision begins with a statement of the
nature of the action and the question or issue presented. Then follows a brief
explanation of the constitutional provisions involved, and what the Petition sought to
achieve. Thereafter, the ensuing procedural incidents before the trial court are tracked.
The Decision proceeds to a full-length opinion on the nature and the extent of the
separation of church and state. Without expressly stating the final conclusion she has
reached or specifying the relief granted or denied, the trial judge ends her "Decision"
with the clause "SO ORDERED."

What were the antecedents that necessitated the filing of the Petition? What exactly
were the distinct facts that gave rise to the question sought to be resolved by SJS?
More important, what were the factual findings and analysis on which the trial court
based its legal findings and conclusions? None were stated or implied. Indeed, the
RTC’s Decision cannot be upheld for its failure to express clearly and distinctly the facts
on which it was based. Thus, the trial court clearly transgressed the constitutional
directive.

The significance of factual findings lies in the value of the decision as a precedent. How
can it be so if one cannot apply the ruling to similar circumstances, simply because such
circumstances are unknown? Otherwise stated, how will the ruling be applied in the
future, if there is no point of factual comparison?

Moreover, the court a quo did not include a resolutory or dispositive portion in its so-
called Decision. The importance of such portion was explained in the early
case Manalang v. Tuason de Rickards,94 from which we quote:

"The resolution of the Court on a given issue as embodied in the dispositive part
of the decision or order is the investitive or controlling factor that determines and
settles the rights of the parties and the questions presented therein,
notwithstanding the existence of statements or declaration in the body of said
order that may be confusing."

The assailed Decision in the present case leaves us in the dark as to its final resolution
of the Petition. To recall, the original Petition was for declaratory relief. So, what relief
did the trial court grant or deny? What rights of the parties did it conclusively declare?
Its final statement says, "SO ORDERED." But what exactly did the court order? It had
the temerity to label its issuance a "Decision," when nothing was in fact decided.

Respondent SJS insists that the dispositive portion can be found in the body of the
assailed Decision. It claims that the issue is disposed of and the Petition finally resolved
by the statement of the trial court found on page 10 of its 14-page Decision, which
reads: "Endorsement of specific candidates in an election to any public office is a clear
violation of the separation clause."95

We cannot agree.

In Magdalena Estate, Inc. v. Caluag,96 the obligation of the party imposed by the Court
was allegedly contained in the text of the original Decision. The Court, however, held:

"x x x The quoted finding of the lower court cannot supply deficiencies in the
dispositive portion. It is a mere opinion of the court and the rule is settled that
where there is a conflict between the dispositive part and the opinion, the former
must prevail over the latter on the theory that the dispositive portion is the final
order while the opinion is merely a statement ordering nothing." (Italics in the
original)

Thus, the dispositive portion cannot be deemed to be the statement quoted by SJS and
embedded in the last paragraph of page 10 of the assailed 14-page Decision. If at all,
that statement is merely an answer to a hypothetical legal question and just a part of the
opinion of the trial court. It does not conclusively declare the rights (or obligations) of the
parties to the Petition. Neither does it grant any -- much less, the proper -- relief under
the circumstances, as required of a dispositive portion.

Failure to comply with the constitutional injunction is a grave abuse of discretion

amounting to lack or excess of jurisdiction. Decisions or orders issued in careless
disregard of the constitutional mandate are a patent nullity and must be struck down as
void.97

Parts of a Decision

In general, the essential parts of a good decision consist of the following: (1) statement
of the case; (2) statement of facts; (3) issues or assignment of errors; (4) court ruling, in
which each issue is, as a rule, separately considered and resolved; and, finally, (5)
dispositive portion. The ponente may also opt to include an introduction or a prologue
as well as an epilogue, especially in cases in which controversial or novel issues are
involved.98

An introduction may consist of a concise but comprehensive statement of the principal

factual or legal issue/s of the case. In some cases -- particularly those concerning public
interest; or involving complicated commercial, scientific, technical or otherwise rare
subject matters -- a longer introduction or prologue may serve to acquaint readers with
the specific nature of the controversy and the issues involved. An epilogue may be a
summation of the important principles applied to the resolution of the issues of
paramount public interest or significance. It may also lay down an enduring philosophy
of law or guiding principle.
Let us now, again for the guidance of the bench and the bar, discuss the essential parts
of a good decision.

1. Statement of the Case

The Statement of the Case consists of a legal definition of the nature of the action. At

the first instance, this part states whether the action is a civil case for collection,
ejectment, quieting of title, foreclosure of mortgage, and so on; or, if it is a criminal case,
this part describes the specific charge -- quoted usually from the accusatory portion of
the information -- and the plea of the accused. Also mentioned here are whether the
case is being decided on appeal or on a petition for certiorari, the court of origin, the
case number in the trial court, and the dispositive portion of the assailed decision.

In a criminal case, the verbatim reproduction of the criminal information serves as a

guide in determining the nature and the gravity of the offense for which the accused
may be found culpable. As a rule, the accused cannot be convicted of a crime different
from or graver than that charged.

Also, quoting verbatim the text of the information is especially important when there is a
question on the sufficiency of the charge, or on whether qualifying and modifying
circumstances have been adequately alleged therein.

To ensure that due process is accorded, it is important to give a short description of the
proceedings regarding the plea of the accused. Absence of an arraignment, or a serious
irregularity therein, may render the judgment void, and further consideration by the
appellate court would be futile. In some instances, especially in appealed cases, it
would also be useful to mention the fact of the appellants’ detention, in order to dispose
of the preliminary query -- whether or not they have abandoned their appeal by
absconding or jumping bail.

Mentioning the court of origin and the case number originally assigned helps in
facilitating the consolidation of the records of the case in both the trial and the appellate
courts, after entry of final judgment.

Finally, the reproduction of the decretal portion of the assailed decision informs the
reader of how the appealed case was decided by the court a quo.

2. Statement of Facts

There are different ways of relating the facts of the case. First, under the objective or
reportorial method, the judge summarizes -- without comment -- the testimony of each
witness and the contents of each exhibit. Second, under the synthesis method, the
factual theory of the plaintiff or prosecution and then that of the defendant or defense is
summarized according to the judge’s best light. Third, in the subjective method, the
version of the facts accepted by the judge is simply narrated without explaining what the
parties’ versions are. Finally, through a combination of objective and subjective means,
the testimony of each witness is reported and the judge then formulates his or her own
version of the facts.

In criminal cases, it is better to present both the version of the prosecution and that of
the defense, in the interest of fairness and due process. A detailed evaluation of the
contentions of the parties must follow. The resolution of most criminal cases, unlike civil
and other cases, depends to a large extent on the factual issues and the appreciation of
the evidence. The plausibility or the implausibility of each version can sometimes be
initially drawn from a reading of the facts. Thereafter, the bases of the court in arriving at
its findings and conclusions should be explained.

On appeal, the fact that the assailed decision of the lower court fully, intelligently and
correctly resolved all factual and legal issues involved may partly explain why the
reviewing court finds no reason to reverse the findings and conclusions of the former.
Conversely, the lower court’s patent misappreciation of the facts or misapplication of the
law would aid in a better understanding of why its ruling is reversed or modified.

In appealed civil cases, the opposing sets of facts no longer need to be presented.
Issues for resolution usually involve questions of law, grave abuse of discretion, or want
of jurisdiction; hence, the facts of the case are often undisputed by the parties. With few
exceptions, factual issues are not entertained in non-criminal cases. Consequently, the
narration of facts by the lower court, if exhaustive and clear, may be reproduced;
otherwise, the material factual antecedents should be restated in the words of the
reviewing magistrate.

In addition, the reasoning of the lower court or body whose decision is under review
should be laid out, in order that the parties may clearly understand why the lower court
ruled in a certain way, and why the reviewing court either finds no reason to reverse it or
concludes otherwise.

3. Issues or Assignment of Errors

Both factual and legal issues should be stated. On appeal, the assignment of errors, as
mentioned in the appellant’s brief, may be reproduced in toto and tackled seriatim, so
as to avoid motions for reconsideration of the final decision on the ground that the court
failed to consider all assigned errors that could affect the outcome of the case. But
when the appellant presents repetitive issues or when the assigned errors do not strike
at the main issue, these may be restated in clearer and more coherent terms.

Though not specifically questioned by the parties, additional issues may also be
included, if deemed important for substantial justice to be rendered. Note that appealed
criminal cases are given de novo review, in contrast to noncriminal cases in which the
reviewing court is generally limited to issues specifically raised in the appeal. The few
exceptions are errors of jurisdiction; questions not raised but necessary in arriving at a
just decision on the case; or unassigned errors that are closely related to those properly
assigned, or upon which depends the determination of the question properly raised.
4. The Court’s Ruling

This part contains a full discussion of the specific errors or issues raised in the
complaint, petition or appeal, as the case may be; as well as of other issues the court
deems essential to a just disposition of the case. Where there are several issues, each
one of them should be separately addressed, as much as practicable. The respective
contentions of the parties should also be mentioned here. When procedural questions
are raised in addition to substantive ones, it is better to resolve the former preliminarily.

5. The Disposition or Dispositive Portion

In a criminal case, the disposition should include a finding of innocence or guilt, the
specific crime committed, the penalty imposed, the participation of the accused, the
modifying circumstances if any, and the civil liability and costs. In case an acquittal is
decreed, the court must order the immediate release of the accused, if detained, (unless
they are being held for another cause) and order the director of the Bureau of
Corrections (or wherever the accused is detained) to report, within a maximum of ten
(10) days from notice, the exact date when the accused were set free.

In a civil case as well as in a special civil action, the disposition should state whether the
complaint or petition is granted or denied, the specific relief granted, and the costs. The
following test of completeness may be applied. First, the parties should know their rights
and obligations. Second, they should know how to execute the decision under
alternative contingencies. Third, there should be no need for further proceedings to
dispose of the issues. Fourth, the case should be terminated by according the proper
relief. The "proper relief" usually depends upon what the parties seek in their pleadings.
It may declare their rights and duties, command the performance of positive prestations,
or order them to abstain from specific acts. The disposition must also adjudicate costs.

The foregoing parts need not always be discussed in sequence. But they should all be
present and plainly identifiable in the decision. Depending on the writer’s character,
genre and style, the language should be fresh and free-flowing, not necessarily
stereotyped or in a fixed form; much less highfalutin, hackneyed and pretentious. At all
times, however, the decision must be clear, concise, complete and correct.

Second Substantive Issue:

Religious Leaders’ Endorsement

of Candidates for Public Office

The basic question posed in the SJS Petition -- WHETHER ENDORSEMENTS OF

CANDIDACIES BY RELIGIOUS LEADERS IS UNCONSTITUTIONAL -- undoubtedly
deserves serious consideration. As stated earlier, the Court deems this constitutional
issue to be of paramount interest to the Filipino citizenry, for it concerns the governance
of our country and its people. Thus, despite the obvious procedural transgressions by
both SJS and the trial court, this Court still called for Oral Argument, so as not to leave
any doubt that there might be room to entertain and dispose of the SJS Petition on the
merits.

Counsel for SJS has utterly failed, however, to convince the Court that there are enough
factual and legal bases to resolve the paramount issue. On the other hand, the Office of
the Solicitor General has sided with petitioner insofar as there are no facts supporting
the SJS Petition and the assailed Decision.

We reiterate that the said Petition failed to state directly the ultimate facts that it relied
upon for its claim. During the Oral Argument, counsel for SJS candidly admitted that
there were no factual allegations in its Petition for Declaratory Relief. Neither were there
factual findings in the assailed Decision. At best, SJS merely asked the trial court to
answer a hypothetical question. In effect, it merely sought an advisory opinion, the
rendition of which was beyond the court’s constitutional mandate and jurisdiction. 99

Indeed, the assailed Decision was rendered in clear violation of the Constitution,
because it made no findings of facts and final disposition. Hence, it is void and deemed
legally inexistent. Consequently, there is nothing for this Court to review, affirm, reverse
or even just modify.

Regrettably, it is not legally possible for the Court to take up, on the merits, the
paramount question involving a constitutional principle. It is a time-honored rule that "the
constitutionality of a statute [or act] will be passed upon only if, and to the extent that, it
is directly and necessarily involved in a justiciable controversy and is essential to the
protection of the rights of the parties concerned." 100

WHEREFORE, the Petition for Review of Brother Mike Velarde is GRANTED. The
assailed June 12, 2003 Decision and July 29, 2003 Order of the Regional Trial Court of
Manila (Branch 49) are hereby DECLARED NULL AND VOID and thus SET ASIDE.
The SJS Petition for Declaratory Relief is DISMISSED for failure to state a cause of
action.

Let a copy of this Decision be furnished the Office of the Court Administrator to evaluate
and recommend whether the trial judge may, after observing due process, be held
administratively liable for rendering a decision violative of the Constitution, the Rules of
Court and relevant circulars of this Court. No costs.

SO ORDERED.

G.R. No. 144801. March 10, 2005

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO

CANTA, JERRY CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA,
LEONARDO DIZON, SALVADOR GELSANO and BENITO LAUGO, Petitioners,
vs.
BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN
BORDAS, Respondents.

DECISION

CORONA, J.:

This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the
Court of Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision
of the Regional Trial Court of Surigao City, Branch 32 in Civil Case No. 4907 and
ordered said case dismissed for lack of jurisdiction.

The antecedents show that petitioners were lay members of the Philippine Independent
Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and
Rustom Florano were the bishop and parish priest, respectively, of the same church in
that locality. Petitioners, led by Dominador Taruc, clamored for the transfer of Fr.
Florano to another parish but Bishop de la Cruz denied their request. It appears from
the records that the family of Fr. Florano’s wife belonged to a political party opposed to
petitioner Taruc’s, thus the animosity between the two factions with Fr. Florano being
identified with his wife’s political camp. Bishop de la Cruz, however, found this too flimsy
a reason for transferring Fr. Florano to another parish.

Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte
worsened when petitioner Taruc tried to organize an open mass to be celebrated by a
certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed
Bishop de la Cruz of his plan, the Bishop tried to dissuade him from pushing through
with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao
and his credentials as a parish priest were in doubt. The Bishop also appealed to
petitioner Taruc to refrain from committing acts inimical and prejudicial to the best
interests of the PIC. He likewise advised petitioners to air their complaints before the
higher authorities of PIC if they believed they had valid grievances against him, the
parish priest, the laws and canons of the PIC.

Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June
19, 1993, at around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open
mass with Fr. Ambong as the celebrant.

On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated

from the Philippine Independent Church for reasons of:

(1) disobedience to duly constituted authority in the Church;

(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual
Help, Iglesia Filipina Independiente, Socorro, Surigao del Norte when they celebrated
an open Mass at the Plaza on June 19, 1996; and
(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among
the general membership.1

Petitioners appealed to the Obispo Maximo and sought reconsideration of the above
decision. In his letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano
should step down voluntarily to avert the hostility and enmity among the members of the
PIC parish in Socorro but stated that:

… I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro
parish….2

In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and
was replaced by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did
not find a valid reason for transferring Fr. Florano to another parish. He issued a circular
denying petitioners’ persistent clamor for the transfer/re-assignment of Fr. Florano.
Petitioners were informed of such denial but they continued to celebrate mass and hold
other religious activities through Fr. Ambong who had been restrained from performing
any priestly functions in the PIC parish of Socorro, Surigao del Norte.

Because of the order of expulsion/excommunication, petitioners filed a complaint for

damages with preliminary injunction against Bishop de la Cruz before the Regional Trial
Court of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas
on the theory that they conspired with the Bishop to have petitioners expelled and
excommunicated from the PIC. They contended that their expulsion was illegal because
it was done without trial thus violating their right to due process of law.

Respondents filed a motion to dismiss the case before the lower court on the ground of
lack of jurisdiction but it was denied. Their motion for reconsideration was likewise
denied so they elevated the case to the Court of Appeals.

The appellate court reversed and set aside the decision of the court a quo and ordered
the dismissal of the case without prejudice to its being refiled before the proper forum. It
held:

… We find it unnecessary to deal on the validity of the excommunication/expulsion of

the private respondents (Taruc, et al.), said acts being purely ecclesiastical matters
which this Court considers to be outside the province of the civil courts.

"Civil Courts will not interfere in the internal affairs of a religious organization except for
the protection of civil or property rights. Those rights may be the subject of litigation in a
civil court, and the courts have jurisdiction to determine controverted claims to the title,
use, or possession of church property." (Ibid., p.466)

…
Obviously, there was no violation of a civil right in the present case.

Ergo, this Court is of the opinion and so holds that the instant case does not involve a
violation and/or protection of a civil or property rights in order for the court a quo to
acquire jurisdiction in the instant case.3

Petitioners appealed from the above decision but their petition was denied. Their motion
for reconsideration was likewise denied, hence, this appeal.

The only issue to be resolved in this case is whether or not the courts have jurisdiction
to hear a case involving the expulsion/excommunication of members of a religious
institution.

We rule that the courts do not.

Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides
that:

Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.

In our jurisdiction, we hold the Church and the State to be separate and distinct from
each other. "Give to Ceasar what is Ceasar’s and to God what is God’s." We have,
however, observed as early as 1928 that:

upon the examination of the decisions it will be readily apparent that cases involving
questions relative to ecclesiastical rights have always received the profoundest attention
from the courts, not only because of their inherent interest, but because of the far
reaching effects of the decisions in human society. [However,] courts have learned the
lesson of conservatism in dealing with such matters, it having been found that, in a form
of government where the complete separation of civil and ecclesiastical authority is
insisted upon, the civil courts must not allow themselves to intrude unduly in matters of
an ecclesiastical nature.4 (italics ours)

We agree with the Court of Appeals that the expulsion/excommunication of members of

a religious institution/organization is a matter best left to the discretion of the officials,
and the laws and canons, of said institution/organization. It is not for the courts to
exercise control over church authorities in the performance of their discretionary and
official functions. Rather, it is for the members of religious institutions/organizations to
conform to just church regulations. In the words of Justice Samuel F. Miller 5:
… all who unite themselves to an ecclesiastical body do so with an implied consent to
submit to the Church government and they are bound to submit to it.

In the leading case of Fonacier v. Court of Appeals,6 we enunciated the doctrine that in
disputes involving religious institutions or organizations, there is one area which the
Court should not touch: doctrinal and disciplinary differences. 7 Thus,

The amendments of the constitution, restatement of articles of religion and

abandonment of faith or abjuration alleged by appellant, having to do with faith, practice,
doctrine, form of worship, ecclesiastical law, custom and rule of a church and having
reference to the power of excluding from the church those allegedly unworthy of
membership, are unquestionably ecclesiastical matters which are outside the
province of the civil courts. (emphasis ours)

We would, however, like to comment on petitioners’ claim that they were not heard
before they were expelled from their church. The records show that Bishop de la Cruz
pleaded with petitioners several times not to commit acts inimical to the best interests of
PIC. They were also warned of the consequences of their actions, among them their
expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears
and petitioners went ahead with their plans to defy their Bishop and foment hostility and
disunity among the members of PIC in Socorro, Surigao del Norte. They should now
take full responsibility for the chaos and dissension they caused.

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

EXECUTIVE ORDER NO. 464

ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS,

ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE
RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID
OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES

WHEREAS, the Constitution guarantees the separate of powers of the Executive,

Legislative and Judicial branches of the government:

WHEREAS, Article VI, Section 22 of the Constitution provides that heads of

departments may, with the prior consent of the President, appear before and be heard
by either House of Congress on any matter pertaining to their departments and, when
the security of the State or the public interest so requires and the President so states in
writing, such appearance shall be conducted in executive session;

WHEREAS, pursuant to the rule of executive privilege, the President and those who
assist her must be free to explore alternatives in the process of shaping policies and
making decisions since this is fundamental to the operation of the government and is
rooted in the separation of powers under the Constitution;

WHEREAS, Article VI, Section 21 of the Constitution mandates that the rights of

persons appearing in or affected by inquiries in aid of legislation by the Senate or House
of Representatives shall be respected;

WHEREAS, recent events, particularly with respect to the invitation of a member of the

Cabinet by the Senate as well as various heads of offices, civilian and military, have
highlighted the need to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of persons
appearing in such inquiries in aid of legislation and due regard to constitutional
mandate;

WHEREAS, there is a need to prevent such inquires in aid of legislation from being

used for partisan political purposes, disrupting diplomatic relations with foreign
government, and weakening the stability of the State, thereby impeding the efforts of the
government to generate and attract foreign investments;

WHEREAS, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for
Public Officials and Employees provides that public official and employees shall not use
or divulge confidential or classified information officially known to them by reason of
their office and not made available to the public to prejudice the public interest;

WHEREAS, Article 229 of the Revised Penal Code prohibits any public officer from
revealing any secret known to him by reason of his official capacity or wrongfully
delivering papers or copies thereof which he may have charge and which should not be
published;

WHEREAS, the 1987 Constitution and the Administrative Code of 1987 provide that the
President shall have control of all government departments, bureaus and offices and
shall ensure that all the laws be faithfully executed.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of

the Philippines, by the powers vested in me by law, do hereby order:

SECTION 1. Appearance by Heads of Departments Before Congress. - In accordance

with Article VI, Section 22 of the Constitution and to implement the Constitutional
provisions on the separation of powers between co-equal branches of the government,
all heads of departments of the Executive Branch of the government shall secure the
consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so
states in writing, the appearance shall only be conducted in executive session.

SECTION 2. Nature, Scope and Coverage of Executive Privilege. -

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that public officials and
employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public to
prejudice the public interest.

Executive privilege covers all confidential or classified information between the

President and the public officers covered by this executive order, including:

i. Conversations and correspondence between the President and the

public official covered by this executive order (Almonte vs. Vasquez G.R.
No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002);

ii. Military, diplomatic and other national security matters which in the
interest of national security should not be divulged (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998).

iii. Information between inter-government agencies prior to the conclusion

of treaties and executive agreements (Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998);

iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential

Commission on Good Government, G.R. No. 130716, 9 December 1998);

v. Matters affecting national security and public order (Chavez v. Public

Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. - The following are covered by this executive order:

i. Senior officials of executive departments who in the judgment of the

department heads are covered by the executive privilege;

ii. Generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered
by the executive privilege;

iii. Philippine National Police (PNP) officers with rank of chief

superintendent or higher and such other officers who in the judgment of
the Chief of the PNP are covered by the executive privilege;
 iv. Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and

v. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. - All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation.

SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations
or parts thereof inconsistent with the provision of this Executive Order are hereby
repealed or modified accordingly.

SECTION 5. Separability Clause. - If any section or provision of this executive order

shall be declared unconstitutional or invalid, the other sections or provision not affected
thereby shall remain in full force and effect.

SECTION 6. Effectivity. - This Executive Order shall take effect immediately.

G.R. No. 130716 December 9, 1998

FRANCISCO I. CHAVEZ, petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and
MAGTANGGOL GUNIGUNDO (in his capacity as chairman of the PCGG),
respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON,
and TERESA A. JOPSON, petitioners-in-intervention.

PANGANIBAN, J.:

Petitioner asks this Court to define the nature and the extent of the people's
constitutional right to information on matters of public concern. Does this right include
access to the terms of government negotiations prior to their consummation or
conclusion? May the government, through the Presidential Commission on Good
Government (PCGG), be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More
specifically, are the "General Agreement" and "Supplemental Agreement," both dated
December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and
binding?

The Case
These are the main questions raised in this original action seeking (1) to prohibit and
"[e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting
and/or executing any greement with the heirs of the late President Ferdinand E.
Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos
located in the Philippines and/or abroad — including the so-called Marcos gold hoard";
and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating to such negotiations
and agreement between the PCGG and the Marcos heirs." 1

The Facts

Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who
initiated the prosecution of the Marcoses and their cronies who committed unmitigated
plunder of the public treasury and the systematic subjugation of the country's economy,"
alleges that what impelled him to bring this action were several news reports 2 bannered
in a number of broadsheets sometime in September 1997. These news items referred
to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various
coded accounts in Swiss banks; and (2) the reported execution of a compromise,
between the government (through PCGG) and the Marcos heirs, on how to split or
share these assets.

Petitioner, invoking his constitutional right to information 3 and the correlative duty of the
state to disclose publicly all its transactions involving the national interest, 4 demands
that respondents make public any and all negotiations and agreements pertaining to
PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that any
compromise on the alleged billions of ill-gotten wealth involves an issue of "paramount
public interest," since it has a "debilitating effect on the country's economy" that would
be greatly prejudicial to the national interest of the Filipino people. Hence, the people in
general have a right to know the transactions or deals being contrived and effected by
the government.

Respondents, on the other hand, do not deny forging a compromise agreement with the
Marcos heirs. They claim, though, that petitioner's action is premature, because there is
no showing that he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled to make any
disclosure, since the proposed terms and conditions of the Agreements have not
become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements
to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs
of Ferdinand E. Marcos, and that the Republic opposed such move on the principal
grounds that (1) said Agreements have not been ratified by or even submitted to the
President for approval, pursuant to Item No. 8 of the General Agreement; and (2) the
Marcos heirs have failed to comply with their undertakings therein, particularly the
collation and submission of an inventory of their assets. The Republic also cited an April
11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a
similar petition filed by the Marcoses' attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then
PCGG Chairman Magtanggol Gunigundo, categorically stated:

This is to reiterate my previous position embodied in the Palace Press

Release of 6 April 1995 that I have not authorized you to approve the
Compromise Agreements of December 28, 1993 or any agreement at all
with the Marcoses, and would have disapproved them had they been
submitted to me.

The Full Powers of Attorney of March 1994 and July 4, 1994, did not
authorize you to approve said Agreements, which I reserve for myself as
President of the Republic of the Philippines.

The assailed principal Agreement 6 reads:

GENERAL AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and
between —

The Republic of the Philippines, through the Presidential

Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders
Nos. 1, 2 and 14, with offices at the philcomcen Building,
Pasig, Metro Manila, represented by its Chairman referred to
as FIRST PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda

Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal
age, and with address at c/o No. 154 Lopez Rizal St.,
Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr.,
and Irene Marcos Araneta, hereinafter collectively referred to
as the PRIVATE PARTY.

W I T N E S S E T H:

WHEREAS, the PRIVATE PARTY has been impelled by their sense of

nationalism and love of country and of the entire Filipino people, and their
desire to set up a foundation and finance impact projects like installation of
power plants in selected rural areas and initiation of other community
projects for the empowerment of the people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss
Federal Tribunal of December 21, 1990, that the $356 million belongs in
principle to the Republic of the Philippines provided certain conditionalities
are met, but even after 7 years, the FIRST PARTY has not been able to
procure a final judgment of conviction against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out

litigation which, as proven by the past 7 years, is consuming money, time
and effort, and is counter-productive and ties up assets which the FIRST
PARTY could otherwise utilize for its Comprehensive Agrarian Reform
Program, and other urgent needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a

policy of unity and reconciliation in order to bind the nation's wounds and
start the process of rebuilding this nation as it goes on to the twenty-first
century;

WHEREAS, this Agreement settles all claims and counterclaims which the
parties may have against one another, whether past, present, or future,
matured or inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set

forth herein, the parties agree as follows:

1. The parties will collate all assets presumed

to be owned by, or held by other parties for the
benefit of, the PRIVATE PARTY for purposes
of determining the totality of the assets covered
by the settlement. The subject assets shall be
classified by the nature thereof, namely: (a)
real estate; (b) jewelry; (c) paintings and other
works of art; (d) securities; (e) funds on
deposit; (f) precious metals, if any, and (g)
miscellaneous assets or assets which could
not appropriately fall under any of the
preceding classification. The list shall be based
on the full disclosure of the PRIVATE PARTY
to insure its accuracy.

2. Based on the inventory, the FIRST PARTY

shall determine which shall be ceded to the
FIRST PARTY, and which shall be assigned
to/retained by the PRIVATE PARTY. The
assets of the PRIVATE PARTY shall be net of
and exempt from, any form of taxes due the
Republic of the Philippines. However,
considering the unavailability of all pertinent
and relevant documents and information as to
balances and ownership, the actual
specification of assets to be retained by the
PRIVATE PARTY shall be covered by
supplemental agreements which shall form part
of this Agreement.

3. Foreign assets which the PRIVATE PARTY

shall fully disclose but which are held by
trustees, nominees, agents or foundations are
hereby waived over by the PRIVATE PARTY in
favor of the FIRST PARTY. For this purpose,
the parties shall cooperate in taking the
appropriate action, judicial and/or extrajudicial,
to recover the same for the FIRST PARTY.

4. All disclosures of assets made by the

PRIVATE PARTY shall not be used as
evidence by the FIRST PARTY in any criminal,
civil, tax or administrative case, but shall be
valid and binding against said PARTY for use
by the FIRST PARTY in withdrawing any
account and/or recovering any asset. The
PRIVATE PARTY withdraws any objection to
the withdrawal by and/or release to the FIRST
PARTY by the Swiss banks and/or Swiss
authorities of the $356 million, its accrued
interests, and/or any other account; over which
the PRIVATE PARTY waives any right, interest
or participation in favor of the FIRST PARTY.
However, any withdrawal or release of any
account aforementioned by the FIRST PARTY
shall be made in the presence of any
authorized representative of the PRIVATE
PARTY.

5. The trustees, custodians, safekeepers,

depositaries, agents, nominees, administrators,
lawyers, or any other party acting in similar
capacity in behalf of the PRIVATE PARTY are
hereby informed through this General
 Agreement to insure that it is fully implemented
and this shall serve as absolute authority from
both parties for full disclosure to the FIRST
PARTY of said assets and for the FIRST
PARTY to withdraw said account and/or assets
and any other assets which the FIRST PARTY
on its own or through the help of the PRIVATE
PARTY/their trustees, etc., may discover.

6. Any asset which may be discovered in the

future as belonging to the PRIVATE PARTY or
is being held by another for the benefit of the
PRIVATE PARTY and which is not included in
the list per No. 1 for whatever reason shall
automatically belong to the FIRST PARTY, and
the PRIVATE PARTY in accordance with No. 4
above, waives any right thereto.

7. This Agreement shall be binding on and

inure to the benefit of, the parties and their
respective legal representatives, successors
and assigns and shall supersede any other
prior agreement.

8. The PARTIES shall submit this and any

other implementing Agreements to the
President of the Philippines for approval. In the
same manner, the PRIVATE PARTY shall
provide the FIRST PARTY assistance by way
of testimony or deposition on any information it
may have that could shed light on the cases
being pursued by the FIRST PARTY against
other parties. The FIRST PARTY shall desist
from instituting new suits already subject of this
Agreement against the PRIVATE PARTY and
cause the dismissal of all other cases pending
in the Sandiganbayan and in other courts.

9. In case of violation by the PRIVATE PARTY

of any of the conditions herein contained, the
PARTIES shall be restored automatically to
the status quo ante the signing of this
Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be

represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th
day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E.
MARCOS,

IMELDA R. MARCOS, MA.

IMELDA

MARCOS-MANOTOC,
FERDINAND R.

MARCOS, JR., & IRENE

MARCOS-

ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-

MARCOS

[Sgd.] MA. IMELDA MARCOS-

MANOTOC

FERDINAND R. MARCOS, JR.7

[Sgd.] IRENE MARCOS-

ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M.

MESINA, JR.
 Counsel & Attorney-
in-Fact

Petitioner also denounces this supplement to the above Agreement: 8

SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and
between —

The Republic of the Philippines, through the Presidential

Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders
Nos. 1, 2 and 14, with offices at the Philcomcen Building,
Pasig, Metro Manila, represented by its Chairman
Magtanggol C. Gunigundo, hereinafter referred to as the
FIRST PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda

Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal
age, and with address at c/o No. 154 Lopez Rizal St.,
Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr.,
and Irene Marcos Araneta, hereinafter collectively referred to
as the PRIVATE PARTY.

W I T N E S S E T H:

The parties in this case entered into a General Agreement

dated Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue

their interest and/or sue over local assets located in the
Philippines against parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the

recovery and/or withdrawal of all assets including lawyers'
fees, agents' fees, nominees' service fees, bank charges,
traveling expenses and all other expenses related thereto
shall be for the account of the PRIVATE PARTY.

In consideration of the foregoing, the parties hereby agree that the

PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount
that may be eventually withdrawn from said $356 million Swiss deposits.
 IN WITNESS WHEREOF, the parties have signed this instrument this 28th
day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS,

IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND R.

MARCOS, JR., & IRENE MARCOS-

ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.9

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact

Acting on a motion of petitioner, the Court issued a Temporary Restraining

Order 10 dated March 23, enjoining respondents, their agents and/or representatives
from "entering into, or perfecting and/or executing any agreement with the heirs of the
late President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth."

Issues
The Oral Argument, held on March 16, 1998, focused on the following issues:

(a) Procedural:

(1) Whether or not the petitioner has the personality or legal standing to
file the instant petition; and

(2) Whether or not this Court is the proper court before which this action
may be filed.

(b) Substantive:

(1) Whether or not this Court could require the PCGG to disclose to the
public the details of any agreement, perfected or not, with the Marcoses;
and

(2) Whether or not there exist any legal restraints against a compromise
agreement between the Marcoses and the PCGG relative to the
Marcoses' ill-gotten wealth. 11

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed
before the Court a Motion for Intervention, attaching thereto their Petition in Intervention.
They aver that they are "among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of
Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No.
92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16,
1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As such,
they claim to have personal and direct interest in the subject matter of the instant case,
since a distribution or disposition of the Marcos properties may adversely affect their
legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted
their motion to intervene and required the respondents to comment thereon. The
September 25, 1998 Comment 12 of the solicitor general on said motion merely
reiterated his aforecited arguments against the main petition. 13

The Court's Ruling

The petition id imbued with merit.

First Procedural Issue:

Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal
personality to file the instant petition. He submits that since ill-gotten wealth "belongs to
the Filipino people and [is], in truth hand in fact, part of the public treasury," any
compromise in relation to it would constitute a diminution of the public funds, which can
be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such
assets.

Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue "of transcendental importance the public." He asserts that ordinary
taxpayers have a right to initiate and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if the issues raised are "of
paramount public interest;" and if they "immeasurably affect the social, economic, and
moral well-being of the people."

Moreover, the mere fact that he is a citizen satisfies the requirement of personal
interest, when the proceeding involves the assertion of a public right, 14 such as in this
case. He invokes several decisions 15 of this Court which have set aside the procedural
matter of locus standi, when the subject of the case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that
petitioner has no standing to institute the present action, because no expenditure of
public funds is involved and said petitioner has no actual interest in the alleged
agreement. Respondents further insist that the instant petition is premature, since there
is no showing that petitioner has requested PCGG to disclose any such negotiations
and agreements; or that, if he has, the Commission has refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as
regards his legal standing to institute the instant petition. Access to public documents
and records is a public right, and the real parties in interest are the people
themselves. 16

In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right
and the object of mandamus is to obtain the enforcement of a public duty, the people
are regarded as the real parties in interest; and because it is sufficient that petitioner is
a citizen and as such is interested in the execution of the laws, he need not show that
he has any legal or special interest in the result of the action. 18 In the aforesaid case,
the petitioners sought to enforce their right to be informed on matters of public concern,
a right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection
with the rule that laws in order to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal
standing, the Court declared that the right they sought to be enforced "is a public right
recognized by no less than the fundamental law of the land."

Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that

"when a mandamus proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore,
part of the general 'public' which possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not
have been involved under the questioned contract for the development, the
management and the operation of the Manila International Container Terminal, "public
interest [was] definitely involved considering the important role [of the subject
contract] . . . in the economic development of the country and the magnitude of the
financial consideration involved." We concluded that, as a consequence, the disclosure
provision in the Constitution would constitute sufficient authority for upholding the
petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and
access to official records, documents and papers — a right guaranteed under Section 7,
Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid down by decisional
law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2)
espoused by a Filipino citizen, we rule that the petition at bar should be allowed.

In any event, the question on the standing of Petitioner Chavez is rendered moot by the
intervention of the Jopsons, who are among the legitimate claimants to the Marcos
wealth. The standing of the Jopsons is not seriously contested by the solicitor general.
Indeed, said petitioners-intervenors have a legal interest in the subject matter of the
instant case, since a distribution or disposition of the Marcoses' ill-gotten properties may
adversely affect the satisfaction of their claims.

Second Procedural Issue:

The Court's Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one
that is not intended to delay any proceeding in the Sandiganbayan, its having been filed
before this Court was proper. He invokes Section 5, Article VIII of the Constitution,
which confers upon the Supreme Court original jurisdiction over petitions for prohibition
and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously
brought before this Court, since there is neither a justiciable controversy nor a violation
of petitioner's rights by the PCGG. He alleges that the assailed agreements are already
the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of
the issue; thus, this petition is premature. Furthermore, respondents themselves have
opposed the Marcos heirs' motion, filed in the graft court, for the approval of the subject
Agreements. Such opposition belies petitioner's claim that the government, through
respondents, has concluded a settlement with the Marcoses as regards their alleged ill-
gotten assets.

In Tañada and Legaspi, we upheld therein petitioners' resort to

a mandamus proceeding, seeking to enforce a public right as well as to compel
performance of a public duty mandated by no less than the fundamental law. 23 Further,
Section 5, Article VIII of the Constitution, expressly confers upon the Supreme
Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus.

Respondents argue that petitioner should have properly sought relief before the
Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the
compromise Agreements is pending resolution. There may seem to be some merit in
such argument, if petitioner is merely seeking to enjoin the enforcement of the
compromise and/or to compel the PCGG to disclose to the public the terms contained in
said Agreements. However, petitioner is here seeking the public disclose of "all
negotiations and agreement, be they ongoing or perfected, and documents related to or
relating to such negotiations and agreement between the PCGG and the Marcos heirs."

In other words, this petition is not confined to the Agreements that have already been
drawn, but likewise to any other ongoing or future undertaking towards any settlement
on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional provisions on "public
transactions." This broad and prospective relief sought by the instant petition brings it
out of the realm of Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of

Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a

compromise settlement with the Marcoses as regards their alleged ill-gotten wealth,
petitioner invokes the following provisions of the Constitution:

Sec. 7 [Article III]. The right of the people to information on matters of

public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as
may be provided by law.

Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.

Respondents' opposite view is that the above constitutional provisions refer to

completed and operative official acts, not to those still being considered. As regards the
assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right
of action that has accrued, because said Agreements have not been approved by the
President, and the Marcos heirs have failed to fulfill their express undertaking therein.
Thus, the Agreements have not become effective. Respondents add that they are not
aware of any ongoing negotiation for another compromise with the Marcoses regarding
their alleged ill-gotten assets.

The "information" and the "transactions" referred to in the subject provisions of the
Constitution have as yet no defined scope and extent. There are no specific laws
prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. However, the following are some of the
recognized restrictions: (1) national security matters and intelligence information, (2)
trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information.

Limitations to the Right:

(1) National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a
governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters. 24 But where there is no need to
protect such state secrets, the privilege may not be invoked to withhold documents and
other information, 25 provided that they are examined "in strict confidence" and given
"scrupulous protection."

Likewise, information on inter-government exchanges prior to the conclusion of treaties

and executive agreements may be subject to reasonable safeguards for the sake of
national interest. 26

(2) Trade Secrets and

Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national
security matters and intelligence information, trade or industrial secrets (pursuant to the
Intellectual Property Code 27 and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act 28) are also exempted from compulsory
disclosure. 29

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of criminals, 30 which courts may nor
inquire into prior to such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access to, for example,
police information regarding rescue operations, the whereabouts of fugitives, or leads
on covert criminal activities.
 (4) Other Confidential

Information

The Ethical Standards Act 31 further prohibits public officials and employees from using
or divulging "confidential or classified information officially known to them by reason of
their office and not made available to the public." 32

Other acknowledged limitations to information access include diplomatic

correspondence, closed door Cabinet meetings and executive sessions of either house
of Congress, as well as the internal deliberations of the Supreme Court. 33

Scope: Matters of Public Concern and

Transactions Involving Public Interest

In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must
be "matters of public concern," access to which may be limited by law. Similarly, the
state policy of full public disclosure extends only to "transactions involving public
interest" and may also be "subject to reasonable conditions prescribed by law." As to
the meanings of the terms "public interest" and "public concern," the Court, in Legaspi
v. Civil Service Commission, 35 elucidated:

In determining whether or not a particular information is of public concern

there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is
for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.

Considered a public concern in the above-mentioned case was the "legitimate concern
of citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles." So was the need to give the general public
adequate notification of various laws that regulate and affect the actions and conduct of
citizens, as held in Tañada. Likewise did the "public nature of the loanable funds of the
GSIS and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa)" qualify the information sought in Valmonte as matters of public
interest and concern. In Aquino-Sarmiento v. Morato, 36 the Court also held that official
acts of public officers done in pursuit if their official functions are public in character;
hence, the records pertaining to such official acts and decisions are within the ambit of
the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to "provide
information on their policies and procedures in clear and understandable language,
[and] ensure openness of information, public consultations and hearings whenever
appropriate . . .," except when "otherwise provided by law or when required by the
public interest." In particular, the law mandates free public access, at reasonable hours,
to the annual performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of assets, liabilities
and financial disclosures of all public officials and employees. 37

In general, writings coming into the hands of public officers in connection with their
official functions must be accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have entrusted the affairs of the
government are honesty, faithfully and competently performing their functions as public
servants. 38 Undeniably, the essence of democracy lies in the free flow of thought; 39 but
thoughts and ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a responsible, reasonable and effective
manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas
among a well-informed public that a government remains responsive to the changes
desired by the people. 40

The Nature of the Marcoses'

Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February
1986, the new government headed by President Corazon C. Aquino was specifically
mandated to "[r]ecover ill-gotten properties amassed by the leaders and supporters of
the previous regime and [to] protect the interest of the people through orders of
sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which partook of the
nature of legislative enactments) dealt with the recovery of these alleged ill-gotten
properties.

Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the
Marcoses fled the country, created the PCGG which was primarily tasked to assist the
President in the recovery of vast government resources allegedly amassed by former
President Marcos, his immediate family, relatives and close associates both here and
abroad.

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who
had knowledge or possession of ill-gotten assets and properties were warned and,
under pain of penalties prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the recovery efforts of the
government.
On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to
the PCGG which, taking into account the overriding considerations of national interest
and national survival, required it to achieve expeditiously and effectively its vital task of
recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the
people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a
matter of public concern and imbued with public interest. 42 We may also add that "ill-
gotten wealth," by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, "ill-gotten wealth" refers to assets and properties
purportedly acquired, directly or indirectly, by former President Marcos, his immediate
family, relatives and close associates through or as a result of their improper or illegal
use of government funds or properties; or their having taken undue advantage of their
public office; or their use of powers, influences or relationships, "resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines." Clearly, the assets and properties referred to supposedly
originated from the government itself. To all intents and purposes, therefore, they
belong to the people. As such, upon reconveyance they will be returned to the public
treasury, subject only to the satisfaction of positive claims of certain persons as may be
adjudged by competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national economic
recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a
right to respondents' disclosure of any agreement that may be arrived at concerning the
Marcoses' purported ill-gotten wealth.

Access to Information

on Negotiating Terms

But does the constitutional provision likewise guarantee access to information

regarding ongoing negotiations or proposals prior to the final agreement? This same
clarification was sought and clearly addressed by the constitutional commissioners
during their deliberations, which we quote hereunder: 43

MR. SUAREZ. And when we say "transactions" which should be

distinguished from contracts, agreements, or treaties or whatever, does
the Gentleman refer to the steps leading to the consummation of the
contract, or does he refer to the contract itself?

MR. OPLE. The "transactions" used here, I suppose, is generic and,

therefore, it can cover both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.
 MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction?

MR. OPLE. Yes, subject to reasonable safeguards on the national

interest.

Considering the intent of the Constitution, we believe that it is incumbent upon the
PCGG and its officers, as well as other government representatives, to disclose
sufficient public information on any proposed settlement they have decided to take up
with the ostensible owners and holders of ill-gotten wealth. Such information, though,
must pertain to definite propositions of the government, not necessarily to intra-agency
or inter-agency recommendations or communications 44 during the stage when common
assertions are still in the process of being formulated or are in the "exploratory" stage.
There is a need, of course, to observe the same restrictions on disclosure of information
in general, as discussed earlier — such as on matters involving national security,
diplomatic or foreign relations, intelligence and other classified information.

Second Substantive Issue:

Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and
the Marcoses will be a virtual condonation of all the alleged wrongs done by them, as
well as an unwarranted permission to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint on entering into a
compromise with the Marcos heirs, provided the agreement does not violate any law.

Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the
following matters: (1) the civil status of persons, (2) the validity of a marriage or a legal
separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of
courts, and (6) future legitimate. 45 And like any other contract, the terms and conditions
of a compromise must not be contrary to law, morals, good customs, public policy or
public order. 46 A compromise is binding and has the force of law between the
parties, 47 unless the consent of a party is vitiated — such as by mistake, fraud,
violence, intimidation or undue influence — or when there is forgery, or if the terms of
the settlment are so palpably unconscionable. In the latter instances, the agreement
may be invalidated by the courts. 48

Effect of Compromise

on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid or
to end a litigation. 49 In fact, the law urges courts to persuade the parties in a civil case
to agree to a fair settlement. 50 As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise. 51

In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG
of civil and criminal immunity to Jose Y. Campos and the family, the Court held that in
the absence an express prohibition, the rule on compromises in civil actions under the
Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of
EO No. 14 particularly the just and expeditious recovery of ill-gotten wealth, so that it
may be used to hasten economic recovery. The same principle was upheld
in Benedicto v. Board of Administrators of Television Stations RPN, BBC and
IBC 53 and Republic v. Benedicto, 54 which ruled in favor of the validity of the PCGG
compromise agreement with Roberto S. Benedicto.

Immunity from

Criminal Prosecution

However, any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal
liability of the malefactor. 55 While a compromise in civil suits is expressly authorized by
law, there is no similar general sanction as regards criminal liability. The authority must
be specifically conferred. In the present case, the power to grant criminal immunity was
confered on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, whci
provides:

Sec. 5. The President Commission on Good Government is authorized to

grant immunity from criminal prosecution to any person who provides
information or testifies in any investigation conducted by such Commission
to establish the unlawful manner in which any respondent, defendant or
accused has acquired or accumulated the property or properties in
question in any case where such information or testimony is necessary to
ascertain or prove the latter's guilt or his civil liability. The immunity
thereby granted shall be continued to protect the witness who repeats
such testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.

The above provision specifies that the PCGG may exercise such authority under these
conditions: (1) the person to whom criminal immunity is granted provides information or
testifies in an investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent, defendant or
accused acquired or accumulated ill-gotten property; and (3) such information or
testimony is necessary to ascertain or prove guilt or civil liability of such individual. From
the wording of the law, it can be easily deducted that the person referred to is
a witness in the proceeding, not the principal respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to
him and his family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos
[with] this Commission, his voluntary surrender of the properties and assets [—]
disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [—]
to the Government of the Republic of the Philippines[;] his full, complete and truthful
disclosures[;] and his commitment to pay a sum of money as determined by the
Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes
and the Benedictos was limited to acts and omissions prior to February 25, 1996. At the
time such immunity was granted, no criminal cases have yet been filed against them
before the competent court.

Validity of the PCGG-Marcos

Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG
and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the
Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who
are the principal defendants in the spate of ill-gotten wealth cases now pending before
the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses
who provide information or testify against a respondent, defendant or accused in an ill-
gotten wealth case.

While the General Agreement states that the Marcoses "shall provide the [government]
assistance by way of testimony or deposition on any information [they] may have that
could shed light on the cases being pursued by the [government] against other
parties," 57 the clause does not fully comply with the law. Its inclusion in the Agreement
may have been only an afterthought, conceived in pro forma compliance with Section 5
of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos
heirs has indeed provided vital information against any respondent or defendant as to
the manner in which the latter may have unlawfully acquired public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt
from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear
violation of the Construction. The power to tax and to grant tax exemptions is vested in
the Congress and, to a certain extent, in the local legislative bodies. 58 Section 28 (4),
Article VI of the Constitution, specifically provides: "No law granting any tax exemption
shall be passed without the concurrence of a majority of all the Member of the
Congress." The PCGG has absolutely no power to grant tax exemptions, even under
the cover of its authority to compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses form paying taxes
on their properties, such law will definitely not pass the test of the equal protection
clause under the Bill of Rights. Any special grant of tax exemption in favor only of the
Marcos heirs will constitute class legislation. It will also violate the constitutional rule that
"taxation shall be uniform and equitable." 59

Neither can the stipulation be construed to fall within the power of the commissioner of
internal revenue to compromise taxes. Such authority may be exercised only when (1)
there is reasonable doubt as to the validity of the claim against the taxpayer, and (2) the
taxpayer's financial position demonstrates a clear inability to pay. 60 Definitely, neither
requisite is present in the case of the Marcoses, because under the Agreement they are
effectively conceding the validity of the claims against their properties, part of which
they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the
power of the commissioner to abate or cancel a tax liability. This power can be
exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2)
the administration and collection costs involved do not justify the collection of the tax
due. 61 In this instance, the cancellation of tax liability is done even before the
determination of the amount due. In any event, criminal violations of the Tax Code, for
which legal actions have been filed in court or in which fraud is involved, cannot be
compromised. 62

Third, the government binds itself to cause the dismissal of all cases against the Marcos
heirs, pending before the Sandiganbayan and other court. 63 This is a direct
encroachment on judicial powers, particularly in regard to criminal jurisdiction. Well-
settled is the doctrine that once a case has been filed before a court of competent
jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and
control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound
discretion of the government prosecution; 64 but the court decides, based on the
evidence proffered, in what manner it will dispose of the case. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution, even by the justice secretary,
to withdraw the information or to dismiss the complaint. 65 The prosecution's motion to
withdraw or to dismiss is not the least binding upon the court. On the contrary,
decisional rules require the trial court to make its own evaluation of the merit of the
case, because granting such motion is equivalent to effecting a disposition of the case
itself. 66

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot
guarantee the dismissal of all such criminal cases against the Marcoses pending in the
courts, for said dismissal is not within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims, "whether past,
present, or future, matured or inchoate," against the Marcoses. 67 Again, this ill-
encompassing stipulation is contrary to law. Under the Civil Code, an action for future
fraud may not be waived. 68 The stipulation in the Agreement does not specify the exact
scope of future claims against the Marcoses that the government thereby relinquishes.
Such vague and broad statement may well be interpreted to include all future illegal acts
of any of the Marcos heirs, practically giving them a license to perpetrate fraud against
the government without any liability at all. This is a palpable violation of the due process
and equal protection guarantees of the Constitution. It effectively ensconces the
Marcoses beyond the reach of the law. It also sets a dangerous precedent for public
accountability. It is a virtual warrant for public officials to amass public funds illegally,
since there is an open option to compromise their liability in exchange for only a portion
of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which
the parties shall fulfill their respective prestations. It may take a lifetime before the
Marcoses submit an inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for determining which
assets shall be forfeited by the government and which shall be retained by the
Marcoses. While the Supplemental Agreement provides that the Marcoses shall be
entitled to 25 per cent of the $356 million Swiss deposits (less government recovery
expenses), such sharing arrangement pertains only to the said deposits. No similar
splitting scheme is defined with respect to the other properties. Neither is there,
anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing
ratio. Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption
Practice Act, 69 invite their indictment for corruption under the said law.

Finally, the absence of then President Ramos' approval of the principal Agreement, an
express condition therein, renders the compromise incomplete and unenforceable.
Nevertheless, as detailed above, even if such approval were obtained, the Agreements
would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and
Supplemental Agreements, both dated December 28, 1993, which the PCGG entered
into with the Marcos heirs, are violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement

dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby
declared NULL AND VOID for being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials who are or may be
directly ot indirectly involved in the recovery of the alleged ill-gotten wealth of the
Marcoses and their associates are DIRECTED to disclose to the public the terms of any
proposed compromise settlment, as well as the final agreement, relating to such alleged
ill-gotten wealth, in accordance with the discussions embodied in this Decision. No
pronouncement as to cost.

SO ORDERED.

G.R. No. 133250           July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction
and a temporary restraining order. The petition seeks to compel the Public Estates
Authority ("PEA" for brevity) to disclose all facts on PEA's then on-going renegotiations
with Amari Coastal Bay and Development Corporation ("AMARI" for brevity) to reclaim
portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new
agreement with AMARI involving such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public

Highways, signed a contract with the Construction and Development Corporation of the
Philippines ("CDCP" for brevity) to reclaim certain foreshore and offshore areas of
Manila Bay. The contract also included the construction of Phases I and II of the Manila-
Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of
fifty percent of the total reclaimed land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree

No. 1084 creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore
and submerged areas," and "to develop, improve, acquire, x x x lease and sell any and
all kinds of lands."1 On the same date, then President Marcos issued Presidential
Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore
of the Manila Bay"2 under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to
amend its contract with CDCP, so that "[A]ll future works in MCCRRP x x x shall be
funded and owned by PEA." Accordingly, PEA and CDCP executed a Memorandum of
Agreement dated December 29, 1981, which stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in
the MCCRRP as may be agreed upon by the parties, to be paid according to
progress of works on a unit price/lump sum basis for items of work to be agreed
upon, subject to price escalation, retention and other terms and conditions
provided for in Presidential Decree No. 1594. All the financing required for such
works shall be provided by PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to
cede and transfer in favor of PEA, all of the rights, title, interest and participation
of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP as of
 December 30, 1981 which have not yet been sold, transferred or otherwise
disposed of by CDCP as of said date, which areas consist of approximately
Ninety-Nine Thousand Four Hundred Seventy Three (99,473) square meters in
the Financial Center Area covered by land pledge No. 5 and approximately Three
Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight
(3,382,888) square meters of reclaimed areas at varying elevations above Mean
Low Water Level located outside the Financial Center Area and the First
Neighborhood Unit."3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No.
3517, granting and transferring to PEA "the parcels of land so reclaimed under the
Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total
area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894)
square meters." Subsequently, on April 9, 1988, the Register of Deeds of the
Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom
Islands" located at the southern portion of the Manila-Cavite Coastal Road, Parañaque
City. The Freedom Islands have a total land area of One Million Five Hundred Seventy
Eight Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841
hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with
AMARI, a private corporation, to develop the Freedom Islands. The JVA also required
the reclamation of an additional 250 hectares of submerged areas surrounding these
islands to complete the configuration in the Master Development Plan of the Southern
Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through
negotiation without public bidding. 4 On April 28, 1995, the Board of Directors of PEA, in
its Resolution No. 1245, confirmed the JVA. 5 On June 8, 1995, then President Fidel V.
Ramos, through then Executive Secretary Ruben Torres, approved the JVA. 6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege
speech in the Senate and denounced the JVA as the "grandmother of all scams." As a
result, the Senate Committee on Government Corporations and Public Enterprises, and
the Committee on Accountability of Public Officers and Investigations, conducted a joint
investigation. The Senate Committees reported the results of their investigation in
Senate Committee Report No. 560 dated September 16, 1997. 7 Among the conclusions
of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the
JVA are lands of the public domain which the government has not classified as
alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of
title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential

Administrative Order No. 365 creating a Legal Task Force to conduct a study on the
legality of the JVA in view of Senate Committee Report No. 560. The members of the
Legal Task Force were the Secretary of Justice, 8 the Chief Presidential Legal
Counsel,9 and the Government Corporate Counsel.10 The Legal Task Force upheld the
legality of the JVA, contrary to the conclusions reached by the Senate Committees. 11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that

there were on-going renegotiations between PEA and AMARI under an order issued by
then President Fidel V. Ramos. According to these reports, PEA Director Nestor Kalaw,
PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz composed the
negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition
with Application for the Issuance of a Temporary Restraining Order and Preliminary
Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed
the petition "for unwarranted disregard of judicial hierarchy, without prejudice to the
refiling of the case before the proper court." 12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer,
filed the instant Petition for Mandamus with Prayer for the Issuance of a Writ of
Preliminary Injunction and Temporary Restraining Order. Petitioner contends the
government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the
JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987 Constitution on
the right of the people to information on matters of public concern. Petitioner assails the
sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article
XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain
to private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of
billions of pesos in properties of the State that are of public dominion.

After several motions for extension of time,13 PEA and AMARI filed their Comments on
October 19, 1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998,
petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the
renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order;
and (c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion
for Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution
dated June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and
required the parties to file their respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement
("Amended JVA," for brevity). On May 28, 1999, the Office of the President under the
administration of then President Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now
prays that on "constitutional and statutory grounds the renegotiated contract be
declared null and void."14
 The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE

MOOT AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO

OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION

OF ADMINISTRATIVE REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES

OFFICIAL INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL
AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE

AGREEMENT FOR THE TRANSFER TO AMARI OF CERTAIN LANDS,
RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE THE 1987
CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE
ISSUE OF WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS
GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and
academic because of subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going
negotiations for a new agreement." The petition also prays that the Court enjoin PEA
from "privately entering into, perfecting and/or executing any new agreement with
AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI
furnished petitioner on June 21, 1999 a copy of the signed Amended JVA containing the
terms and conditions agreed upon in the renegotiations. Thus, PEA has satisfied
petitioner's prayer for a public disclosure of the renegotiations. Likewise, petitioner's
prayer to enjoin the signing of the Amended JVA is now moot because PEA and AMARI
have already signed the Amended JVA on March 30, 1999. Moreover, the Office of the
President has approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply
fast-tracking the signing and approval of the Amended JVA before the Court could act
on the issue. Presidential approval does not resolve the constitutional issue or remove it
from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by
the President cannot operate to moot the petition and divest the Court of its jurisdiction.
PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the
signing of the Amended JVA on constitutional grounds necessarily includes preventing
its implementation if in the meantime PEA and AMARI have signed one in violation of
the Constitution. Petitioner's principal basis in assailing the renegotiation of the JVA is
its violation of Section 3, Article XII of the Constitution, which prohibits the government
from alienating lands of the public domain to private corporations. If the Amended JVA
indeed violates the Constitution, it is the duty of the Court to enjoin its implementation,
and if already implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks
to transfer title and ownership to 367.5 hectares of reclaimed lands and
submerged areas of Manila Bay to a single private corporation. It now becomes
more compelling for the Court to resolve the issue to insure the government itself does
not violate a provision of the Constitution intended to safeguard the national patrimony.
Supervening events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. In the instant case, if
the Amended JVA runs counter to the Constitution, the Court can still prevent the
transfer of title and ownership of alienable lands of the public domain in the name of
AMARI. Even in cases where supervening events had made the cases moot, the Court
did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and the public. 17

Also, the instant petition is a case of first impression. All previous decisions of the Court
involving Section 3, Article XII of the 1987 Constitution, or its counterpart provision in
the 1973 Constitution,18 covered agricultural lands sold to private corporations which
acquired the lands from private parties. The transferors of the private corporations
claimed or could claim the right to judicial confirmation of their imperfect
titles19 under Title II of Commonwealth Act. 141 ("CA No. 141" for brevity). In the
instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands
and submerged areas for non-agricultural purposes by purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the
Amended JVA constitute the consideration for the purchase. Neither AMARI nor PEA
can claim judicial confirmation of their titles because the lands covered by the Amended
JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title
requires open, continuous, exclusive and notorious occupation of agricultural lands of
the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the
deadline for filing applications for judicial confirmation of imperfect title expired on
December 31, 1987.20
Lastly, there is a need to resolve immediately the constitutional issue raised in this
petition because of the possible transfer at any time by PEA to AMARI of title and
ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is
obligated to transfer to AMARI the latter's seventy percent proportionate share in the
reclaimed areas as the reclamation progresses. The Amended JVA even allows AMARI
to mortgage at any time the entire reclaimed area to raise financing for the reclamation
project.21

Second issue: whether the petition merits dismissal for failing to observe the
principle governing the hierarchy of courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional issues of transcendental
importance to the public.22 The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of

administrative remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose
publicly certain information without first asking PEA the needed information. PEA claims
petitioner's direct resort to the Court violates the principle of exhaustion of administrative
remedies. It also violates the rule that mandamus may issue only if there is no other
plain, speedy and adequate remedy in the ordinary course of law.

PEA distinguishes the instant case from Tañada v. Tuvera 23 where the Court granted
the petition for mandamus even if the petitioners there did not initially demand from the
Office of the President the publication of the presidential decrees. PEA points out that in
Tañada, the Executive Department had an affirmative statutory duty under Article 2 of
the Civil Code24 and Section 1 of Commonwealth Act No. 63825 to publish the
presidential decrees. There was, therefore, no need for the petitioners in Tañada to
make an initial demand from the Office of the President. In the instant case, PEA claims
it has no affirmative statutory duty to disclose publicly information about its renegotiation
of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of
administrative remedies to the instant case in view of the failure of petitioner here to
demand initially from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government
corporation. Under Section 79 of the Government Auditing Code, 26 the disposition of
government lands to private parties requires public bidding. PEA was under a positive
legal duty to disclose to the public the terms and conditions for the sale of its
lands. The law obligated PEA to make this public disclosure even without demand from
petitioner or from anyone. PEA failed to make this public disclosure because the original
JVA, like the Amended JVA, was the result of a negotiated contract, not of a public
bidding. Considering that PEA had an affirmative statutory duty to make the public
disclosure, and was even in breach of this legal duty, petitioner had the right to seek
direct judicial intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of
administrative remedies does not apply when the issue involved is a purely legal or
constitutional question.27 The principal issue in the instant case is the capacity of AMARI
to acquire lands held by PEA in view of the constitutional ban prohibiting the alienation
of lands of the public domain to private corporations. We rule that the principle of
exhaustion of administrative remedies does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to

enforce his constitutional right to information without a showing that PEA refused to
perform an affirmative duty imposed on PEA by the Constitution. PEA also claims that
petitioner has not shown that he will suffer any concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no actual controversy requiring the
exercise of the power of judicial review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to
compel PEA to comply with its constitutional duties. There are two constitutional issues
involved here. First is the right of citizens to information on matters of public concern.
Second is the application of a constitutional provision intended to insure the equitable
distribution of alienable lands of the public domain among Filipino citizens. The thrust of
the first issue is to compel PEA to disclose publicly information on the sale of
government lands worth billions of pesos, information which the Constitution and
statutory law mandate PEA to disclose. The thrust of the second issue is to prevent
PEA from alienating hundreds of hectares of alienable lands of the public domain in
violation of the Constitution, compelling PEA to comply with a constitutional duty to the
nation.

Moreover, the petition raises matters of transcendental importance to the public.

In Chavez v. PCGG,28 the Court upheld the right of a citizen to bring a taxpayer's suit on
matters of transcendental importance to the public, thus -

"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of

the Marcoses is an issue of 'transcendental importance to the public.' He asserts
that ordinary taxpayers have a right to initiate and prosecute actions questioning
the validity of acts or orders of government agencies or instrumentalities, if the
issues raised are of 'paramount public interest,' and if they 'immediately affect the
social, economic and moral well being of the people.'
 Moreover, the mere fact that he is a citizen satisfies the requirement of personal
interest, when the proceeding involves the assertion of a public right, such as in
this case. He invokes several decisions of this Court which have set aside the
procedural matter of locus standi, when the subject of the case involved public
interest.

xxx

In Tañada v. Tuvera, the Court asserted that when the issue concerns a public
right and the object of mandamus is to obtain the enforcement of a public duty,
the people are regarded as the real parties in interest; and because it is sufficient
that petitioner is a citizen and as such is interested in the execution of the laws,
he need not show that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to enforce their right to be
informed on matters of public concern, a right then recognized in Section 6,
Article IV of the 1973 Constitution, in connection with the rule that laws in order to
be valid and enforceable must be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners' legal standing, the Court
declared that the right they sought to be enforced 'is a public right recognized by
no less than the fundamental law of the land.'

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared

that 'when a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that petitioner is a
citizen and, therefore, part of the general 'public' which possesses the right.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may
not have been involved under the questioned contract for the development,
management and operation of the Manila International Container Terminal,
'public interest [was] definitely involved considering the important role [of the
subject contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved.' We concluded that, as a
consequence, the disclosure provision in the Constitution would constitute
sufficient authority for upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information
and access to official records, documents and papers — a right guaranteed
under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor
general, is a Filipino citizen. Because of the satisfaction of the two basic
requisites laid down by decisional law to sustain petitioner's legal standing, i.e.
(1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule
that the petition at bar should be allowed."

We rule that since the instant petition, brought by a citizen, involves the enforcement of
constitutional rights - to information and to the equitable diffusion of natural resources -
matters of transcendental public importance, the petitioner has the requisite locus
standi.

Fifth issue: whether the constitutional right to information includes official

information on on-going negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on
matters of public concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law."
(Emphasis supplied)

The State policy of full transparency in all transactions involving public interest
reinforces the people's right to information on matters of public concern. This State
policy is expressed in Section 28, Article II of the Constitution, thus:

"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions
involving public interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making

and in the operations of the government, as well as provide the people sufficient
information to exercise effectively other constitutional rights. These twin provisions are
essential to the exercise of freedom of expression. If the government does not disclose
its official acts, transactions and decisions to citizens, whatever citizens say, even if
expressed without any restraint, will be speculative and amount to nothing. These twin
provisions are also essential to hold public officials "at all times x x x accountable to the
people,"29 for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and
their effective implementation. An informed citizenry is essential to the existence and
proper functioning of any democracy. As explained by the Court in Valmonte v.
Belmonte, Jr.30 –

"An essential element of these freedoms is to keep open a continuing dialogue or

process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained
to the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right
to information is limited to "definite propositions of the government." PEA maintains the
right does not include access to "intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still in the process of
being formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage
or before the closing of the transaction. To support its contention, AMARI cites the
following discussion in the 1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or does he refer to the
contract itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore,

it can cover both steps leading to a contract and already a consummated
contract, Mr. Presiding Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the

consummation of the transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national

interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke
the right. Requiring government officials to reveal their deliberations at the pre-
decisional stage will degrade the quality of decision-making in government agencies.
Government officials will hesitate to express their real sentiments during deliberations if
there is immediate public dissemination of their discussions, putting them under all
kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to
disclose publicly, and information the constitutional right to information requires PEA to
release to the public. Before the consummation of the contract, PEA must, on its own
and without demand from anyone, disclose to the public matters relating to the
disposition of its property. These include the size, location, technical description and
nature of the property being disposed of, the terms and conditions of the disposition, the
parties qualified to bid, the minimum price and similar information. PEA must prepare all
these data and disclose them to the public at the start of the disposition process, long
before the consummation of the contract, because the Government Auditing Code
requires public bidding. If PEA fails to make this disclosure, any citizen can demand
from PEA this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals being
undertaken by the bidding or review committee is not immediately accessible under the
right to information. While the evaluation or review is still on-going, there are no "official
acts, transactions, or decisions" on the bids or proposals. However, once the committee
makes its official recommendation, there arises a "definite proposition" on the part
of the government. From this moment, the public's right to information attaches, and any
citizen can access all the non-proprietary information leading to such definite
proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is

incumbent upon the PCGG and its officers, as well as other government
representatives, to disclose sufficient public information on any proposed
settlement they have decided to take up with the ostensible owners and holders
of ill-gotten wealth. Such information, though, must pertain to definite
propositions of the government, not necessarily to intra-agency or inter-
agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the "exploratory"
stage. There is need, of course, to observe the same restrictions on disclosure of
information in general, as discussed earlier – such as on matters involving
national security, diplomatic or foreign relations, intelligence and other classified
information." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional

Commission understood that the right to information "contemplates inclusion of
negotiations leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.1âwphi1.nêt

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes
a fait accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended. Such
a requirement will prevent the citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by
the State of its avowed "policy of full disclosure of all its transactions involving public
interest."

The right covers three categories of information which are "matters of public concern,"
namely: (1) official records; (2) documents and papers pertaining to official acts,
transactions and decisions; and (3) government research data used in formulating
policies. The first category refers to any document that is part of the public records in
the custody of government agencies or officials. The second category refers to
documents and papers recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of government agencies or
officials. The third category refers to research data, whether raw, collated or processed,
owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes
evaluation reports, recommendations, legal and expert opinions, minutes of meetings,
terms of reference and other documents attached to such reports or minutes, all relating
to the JVA. However, the right to information does not compel PEA to prepare lists,
abstracts, summaries and the like relating to the renegotiation of the JVA. 34 The right
only affords access to records, documents and papers, which means the opportunity to
inspect and copy them. One who exercises the right must copy the records, documents
and papers at his expense. The exercise of the right is also subject to reasonable
regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection
and copying.35

The right to information, however, does not extend to matters recognized as privileged
information under the separation of powers.36 The right does not also apply to
information on military and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential. 37 The
right may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, 38 are recognized
as confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power.39 This is not the situation in the instant case.

We rule, therefore, that the constitutional right to information includes official information
on on-going negotiations before a final contract. The information, however, must
constitute definite propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar
matters affecting national security and public order. 40 Congress has also prescribed
other limitations on the right to information in several legislations. 41

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI
of lands, reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the
Regalian doctrine which holds that the State owns all lands and waters of the public
domain. Upon the Spanish conquest of the Philippines, ownership of all "lands,
territories and possessions" in the Philippines passed to the Spanish Crown. 42 The King,
as the sovereign ruler and representative of the people, acquired and owned all lands
and territories in the Philippines except those he disposed of by grant or sale to private
individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting,
however, the State, in lieu of the King, as the owner of all lands and waters of the public
domain. The Regalian doctrine is the foundation of the time-honored principle of land
ownership that "all lands that were not acquired from the Government, either by
purchase or by grant, belong to the public domain." 43 Article 339 of the Civil Code of
1889, which is now Article 420 of the Civil Code of 1950, incorporated the Regalian
doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership
and disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine
Commission enacted Act No. 1654 which provided for the lease, but not the sale, of
reclaimed lands of the government to corporations and individuals. Later, on
November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. On November 7, 1936, the National
Assembly passed Commonwealth Act No. 141, also known as the Public Land Act,
which authorized the lease, but not the sale, of reclaimed lands of the government
to corporations and individuals. CA No. 141 continues to this day as the general law
governing the classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters
within the maritime zone of the Spanish territory belonged to the public domain for
public use.44 The Spanish Law of Waters of 1866 allowed the reclamation of the sea
under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by

the State, or by the provinces, pueblos or private persons, with proper
permission, shall become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party
undertaking the reclamation, provided the government issued the necessary permit and
did not reserve ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is –

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, riverbanks, shores, roadsteads, and that of a
similar character;

2. That belonging exclusively to the State which, without being of general public
use, is employed in some public service, or in the development of the national
wealth, such as walls, fortresses, and other works for the defense of the territory,
and mines, until granted to private individuals."

Property devoted to public use referred to property open for use by the public. In
contrast, property devoted to public service referred to property used for some specific
public service and open only to those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also
to property not so used but employed to develop the national wealth. This class of
property constituted property of public dominion although employed for some economic
or commercial activity to increase the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public
dominion into private property, to wit:

"Art. 341. Property of public dominion, when no longer devoted to public use or to
the defense of the territory, shall become a part of the private property of the
State."

This provision, however, was not self-executing. The legislature, or the executive
department pursuant to law, must declare the property no longer needed for public use
or territorial defense before the government could lease or alienate the property to
private parties.45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the
lease of reclaimed and foreshore lands. The salient provisions of this law were as
follows:

"Section 1. The control and disposition of the foreshore as defined in existing

law, and the title to all Government or public lands made or reclaimed by
the Government by dredging or filling or otherwise throughout the Philippine
Islands, shall be retained by the Government without prejudice to vested rights
and without prejudice to rights conceded to the City of Manila in the Luneta
Extension.
 Section 2. (a) The Secretary of the Interior shall cause all Government or public
lands made or reclaimed by the Government by dredging or filling or otherwise to
be divided into lots or blocks, with the necessary streets and alleyways located
thereon, and shall cause plats and plans of such surveys to be prepared and filed
with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give
notice to the public that such parts of the lands so made or reclaimed as
are not needed for public purposes will be leased for commercial and
business purposes, x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and
best bidder therefore, subject to such regulations and safeguards as the
Governor-General may by executive order prescribe." (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands
reclaimed by the government. The Act also vested in the government control and
disposition of foreshore lands. Private parties could lease lands reclaimed by the
government only if these lands were no longer needed for public purpose. Act No. 1654
mandated public bidding in the lease of government reclaimed lands. Act No. 1654
made government reclaimed lands sui generis in that unlike other public lands which
the government could sell to private parties, these reclaimed lands were available only
for lease to private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866.
Act No. 1654 did not prohibit private parties from reclaiming parts of the sea under
Section 5 of the Spanish Law of Waters. Lands reclaimed from the sea by private
parties with government permission remained private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public
Land Act.46 The salient provisions of Act No. 2874, on reclaimed lands, were as follows:

"Sec. 6. The Governor-General, upon the recommendation of the Secretary

of Agriculture and Natural Resources, shall from time to time classify the
lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

 Sec. 7. For the purposes of the government and disposition of alienable or
disposable public lands, the Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall from time to time
declare what lands are open to disposition or concession under this Act."

Sec. 8. Only those lands shall be declared open to disposition or

concession which have been officially delimited or classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor
mineral land, shall be classified as suitable for residential purposes or for
commercial, industrial, or other productive purposes other than
agricultural purposes, and shall be open to disposition or concession, shall be
disposed of under the provisions of this chapter, and not otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other

means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores
or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six
shall be disposed of to private parties by lease only and not otherwise, as
soon as the Governor-General, upon recommendation by the Secretary of
Agriculture and Natural Resources, shall declare that the same are not
necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or lease
under the provisions of this Act." (Emphasis supplied)

Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the
public domain into x x x alienable or disposable" 47 lands. Section 7 of the Act
empowered the Governor-General to "declare what lands are open to disposition or
concession." Section 8 of the Act limited alienable or disposable lands only to those
lands which have been "officially delimited and classified."

Section 56 of Act No. 2874 stated that lands "disposable under this title 48 shall be
classified" as government reclaimed, foreshore and marshy lands, as well as other
lands. All these lands, however, must be suitable for residential, commercial, industrial
or other productive non-agricultural purposes. These provisions vested upon the
Governor-General the power to classify inalienable lands of the public domain into
disposable lands of the public domain. These provisions also empowered the Governor-
General to classify further such disposable lands of the public domain into government
reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public
domain classified as government reclaimed, foreshore and marshy lands "shall be
disposed of to private parties by lease only and not otherwise." The Governor-
General, before allowing the lease of these lands to private parties, must formally
declare that the lands were "not necessary for the public service." Act No. 2874
reiterated the State policy to lease and not to sell government reclaimed, foreshore and
marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as the only
alienable or disposable lands of the public domain that the government could not sell to
private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and
marshy public lands for non-agricultural purposes retain their inherent potential as areas
for public service. This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always reserved these
lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore
and marshy lands into other non-agricultural lands under Section 56 (d). Lands falling
under Section 56 (d) were the only lands for non-agricultural purposes the government
could sell to private parties. Thus, under Act No. 2874, the government could not sell
government reclaimed, foreshore and marshy lands to private parties, unless the
legislature passed a law allowing their sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to
Section 5 of the Spanish Law of Waters of 1866. Lands reclaimed from the sea by
private parties with government permission remained private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino
people. The 1935 Constitution, in adopting the Regalian doctrine, declared in Section 1,
Article XIII, that –

"Section 1. All agricultural, timber, and mineral lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy and other natural resources of the Philippines belong to the State, and
their disposition, exploitation, development, or utilization shall be limited to
 citizens of the Philippines or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject to any existing
right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and limit of the grant."
(Emphasis supplied)

The 1935 Constitution barred the alienation of all natural resources except public
agricultural lands, which were the only natural resources the State could alienate. Thus,
foreshore lands, considered part of the State's natural resources, became inalienable by
constitutional fiat, available only for lease for 25 years, renewable for another 25 years.
The government could alienate foreshore lands only after these lands were reclaimed
and classified as alienable agricultural lands of the public domain. Government
reclaimed and marshy lands of the public domain, being neither timber nor mineral
lands, fell under the classification of public agricultural lands. 50 However, government
reclaimed and marshy lands, although subject to classification as disposable public
agricultural lands, could only be leased and not sold to private parties because of Act
No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed

and marshy lands of the public domain was only a statutory prohibition and the
legislature could therefore remove such prohibition. The 1935 Constitution did not
prohibit individuals and corporations from acquiring government reclaimed and marshy
lands of the public domain that were classified as agricultural lands under existing public
land laws. Section 2, Article XIII of the 1935 Constitution provided as follows:

"Section 2. No private corporation or association may acquire, lease, or

hold public agricultural lands in excess of one thousand and twenty four
hectares, nor may any individual acquire such lands by purchase in excess
of one hundred and forty hectares, or by lease in excess of one thousand
and twenty-four hectares, or by homestead in excess of twenty-four hectares.
Lands adapted to grazing, not exceeding two thousand hectares, may be leased
to an individual, private corporation, or association." (Emphasis supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section
58 of Act No. 2874 to open for sale to private parties government reclaimed and marshy
lands of the public domain. On the contrary, the legislature continued the long
established State policy of retaining for the government title and ownership of
government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141,
also known as the Public Land Act, which compiled the then existing laws on lands of
the public domain. CA No. 141, as amended, remains to this day the existing general
law governing the classification and disposition of lands of the public domain other than
timber and mineral lands.51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain
into "alienable or disposable"52 lands of the public domain, which prior to such
classification are inalienable and outside the commerce of man. Section 7 of CA No.
141 authorizes the President to "declare what lands are open to disposition or
concession." Section 8 of CA No. 141 states that the government can declare open for
disposition or concession only lands that are "officially delimited and classified."
Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of

Agriculture and Commerce, shall from time to time classify the lands of the
public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to
another,53 for the purpose of their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or

disposable public lands, the President, upon recommendation by the
Secretary of Agriculture and Commerce, shall from time to time declare
what lands are open to disposition or concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or

concession which have been officially delimited and classified and, when
practicable, surveyed, and which have not been reserved for public or quasi-
public uses, nor appropriated by the Government, nor in any manner become
private property, nor those on which a private right authorized and recognized by
this Act or any other valid law may be claimed, or which, having been reserved or
appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain,
the President must first officially classify these lands as alienable or disposable, and
then declare them open to disposition or concession. There must be no law reserving
these lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy
lands of the public domain, are as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber
nor mineral land, is intended to be used for residential purposes or for
commercial, industrial, or other productive purposes other than
agricultural, and is open to disposition or concession, shall be disposed of
under the provisions of this chapter and not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other

means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores
or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the
case may be, to any person, corporation, or association authorized to purchase
or lease public lands for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine
shall be disposed of to private parties by lease only and not otherwise, as
soon as the President, upon recommendation by the Secretary of
Agriculture, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in
class (d) may be disposed of by sale or lease under the provisions of this
Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution,
Section 58 of Act No. 2874 prohibiting the sale of government reclaimed, foreshore and
marshy disposable lands of the public domain. All these lands are intended for
residential, commercial, industrial or other non-agricultural purposes. As before, Section
61 allowed only the lease of such lands to private parties. The government could sell to
private parties only lands falling under Section 59 (d) of CA No. 141, or those lands for
non-agricultural purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands, however, became
inalienable under the 1935 Constitution which only allowed the lease of these lands to
qualified private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain
intended for residential, commercial, industrial or other productive purposes other than
agricultural "shall be disposed of under the provisions of this chapter and not
otherwise." Under Section 10 of CA No. 141, the term "disposition" includes lease of
the land. Any disposition of government reclaimed, foreshore and marshy disposable
lands for non-agricultural purposes must comply with Chapter IX, Title III of CA No.
141,54 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v.
Court of Appeals,55 Justice Reynato S. Puno summarized succinctly the law on this
matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are
lands reclaimed by the government by dredging, filling, or other means. Act 1654
mandated that the control and disposition of the foreshore and lands under water
remained in the national government. Said law allowed only the 'leasing' of
reclaimed land. The Public Land Acts of 1919 and 1936 also declared that the
foreshore and lands reclaimed by the government were to be "disposed of to
private parties by lease only and not otherwise." Before leasing, however, the
Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not
necessary for the public service. This requisite must have been met before the
land could be disposed of. But even then, the foreshore and lands under
water were not to be alienated and sold to private parties. The disposition
of the reclaimed land was only by lease. The land remained property of the
State." (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141
has remained in effect at present."

The State policy prohibiting the sale to private parties of government reclaimed,
foreshore and marshy alienable lands of the public domain, first implemented in 1907
was thus reaffirmed in CA No. 141 after the 1935 Constitution took effect. The
prohibition on the sale of foreshore lands, however, became a constitutional edict under
the 1935 Constitution. Foreshore lands became inalienable as natural resources of the
State, unless reclaimed by the government and classified as agricultural lands of the
public domain, in which case they would fall under the classification of government
reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy
disposable lands of the public domain continued to be only leased and not sold to
private parties.56 These lands remained sui generis, as the only alienable or disposable
lands of the public domain the government could not sell to private parties.

Since then and until now, the only way the government can sell to private parties
government reclaimed and marshy disposable lands of the public domain is for the
legislature to pass a law authorizing such sale. CA No. 141 does not authorize the
President to reclassify government reclaimed and marshy lands into other non-
agricultural lands under Section 59 (d). Lands classified under Section 59 (d) are the
only alienable or disposable lands for non-agricultural purposes that the government
could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before

lands under Section 59 that the government previously transferred to government units
or entities could be sold to private parties. Section 60 of CA No. 141 declares that –

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment
of the Secretary of Agriculture and Natural Resources, be reasonably necessary
for the purposes for which such sale or lease is requested, and shall not exceed
one hundred and forty-four hectares: Provided, however, That this limitation shall
not apply to grants, donations, or transfers made to a province, municipality or
branch or subdivision of the Government for the purposes deemed by said
entities conducive to the public interest; but the land so granted, donated, or
transferred to a province, municipality or branch or subdivision of the
Government shall not be alienated, encumbered, or otherwise disposed of
in a manner affecting its title, except when authorized by Congress: x x x."
(Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative
authority required in Section 56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted
government units and entities from the maximum area of public lands that could be
acquired from the State. These government units and entities should not just turn
around and sell these lands to private parties in violation of constitutional or statutory
limitations. Otherwise, the transfer of lands for non-agricultural purposes to government
units and entities could be used to circumvent constitutional limitations on ownership of
alienable or disposable lands of the public domain. In the same manner, such transfers
could also be used to evade the statutory prohibition in CA No. 141 on the sale of
government reclaimed and marshy lands of the public domain to private parties. Section
60 of CA No. 141 constitutes by operation of law a lien on these lands. 57

In case of sale or lease of disposable lands of the public domain falling under Section
59 of CA No. 141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of
CA No. 141 provide as follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not
needed for public purposes, the Director of Lands shall ask the Secretary of
Agriculture and Commerce (now the Secretary of Natural Resources) for
authority to dispose of the same. Upon receipt of such authority, the Director of
Lands shall give notice by public advertisement in the same manner as in the
case of leases or sales of agricultural public land, x x x.
 Sec. 67. The lease or sale shall be made by oral bidding; and adjudication
shall be made to the highest bidder. x x x." (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales
of alienable or disposable lands of the public domain. 58

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of
the Spanish Law of Waters of 1866. Private parties could still reclaim portions of the sea
with government permission. However, the reclaimed land could become private
land only if classified as alienable agricultural land of the public domain open to
disposition under CA No. 141. The 1935 Constitution prohibited the alienation of all
natural resources except public agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public
dominion found in the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950
state that –

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports
and bridges constructed by the State, banks, shores, roadsteads, and others of
similar character;

(2) Those which belong to the State, without being for public use, and are
intended for some public service or for the development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or
for public service, shall form part of the patrimonial property of the State."

Again, the government must formally declare that the property of public dominion is no
longer needed for public use or public service, before the same could be classified as
patrimonial property of the State.59 In the case of government reclaimed and marshy
lands of the public domain, the declaration of their being disposable, as well as the
manner of their disposition, is governed by the applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public
dominion those properties of the State which, without being for public use, are intended
for public service or the "development of the national wealth." Thus, government
reclaimed and marshy lands of the State, even if not employed for public use or public
service, if developed to enhance the national wealth, are classified as property of public
dominion.
Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the
Regalian doctrine. Section 8, Article XIV of the 1973 Constitution stated that –

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, wildlife, and other
natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and resettlement lands of
the public domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation, or utilization
of any of the natural resources shall be granted for a period exceeding twenty-
five years, renewable for not more than twenty-five years, except as to water
rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial use may be the measure
and the limit of the grant." (Emphasis supplied)

The 1973 Constitution prohibited the alienation of all natural resources with the
exception of "agricultural, industrial or commercial, residential, and resettlement lands of
the public domain." In contrast, the 1935 Constitution barred the alienation of all natural
resources except "public agricultural lands." However, the term "public agricultural
lands" in the 1935 Constitution encompassed industrial, commercial, residential and
resettlement lands of the public domain. 60 If the land of public domain were neither
timber nor mineral land, it would fall under the classification of agricultural land of the
public domain. Both the 1935 and 1973 Constitutions, therefore, prohibited the
alienation of all natural resources except agricultural lands of the public domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to
individuals who were citizens of the Philippines. Private corporations, even if wholly
owned by Philippine citizens, were no longer allowed to acquire alienable lands of the
public domain unlike in the 1935 Constitution. Section 11, Article XIV of the 1973
Constitution declared that –

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological,
and development requirements of the natural resources, shall determine by law
the size of land of the public domain which may be developed, held or acquired
by, or leased to, any qualified individual, corporation, or association, and the
conditions therefor. No private corporation or association may hold alienable
lands of the public domain except by lease not to exceed one thousand
hectares in area nor may any citizen hold such lands by lease in excess of five
hundred hectares or acquire by purchase, homestead or grant, in excess of
twenty-four hectares. No private corporation or association may hold by lease,
concession, license or permit, timber or forest lands and other timber or forest
resources in excess of one hundred thousand hectares. However, such area may
be increased by the Batasang Pambansa upon recommendation of the National
Economic and Development Authority." (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable lands of the
public domain only through lease. Only individuals could now acquire alienable lands of
the public domain, and private corporations became absolutely barred from
acquiring any kind of alienable land of the public domain. The constitutional ban
extended to all kinds of alienable lands of the public domain, while the statutory ban
under CA No. 141 applied only to government reclaimed, foreshore and marshy
alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No.
1084 creating PEA, a wholly government owned and controlled corporation with a
special charter. Sections 4 and 8 of PD No. 1084, vests PEA with the following
purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by

dredging, filling or other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease

and sell any and all kinds of lands, buildings, estates and other forms of real
property, owned, managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for
the efficient, economical and beneficial utilization of the above properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out
the purposes for which it is created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to
private corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream,

watercourse, canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for
the attainment of the purposes and objectives herein specified." (Emphasis
supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the
public domain. Foreshore areas are those covered and uncovered by the ebb and flow
of the tide.61 Submerged areas are those permanently under water regardless of the
ebb and flow of the tide.62 Foreshore and submerged areas indisputably belong to the
public domain63 and are inalienable unless reclaimed, classified as alienable lands open
to disposition, and further declared no longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands
of the public domain did not apply to PEA since it was then, and until today, a fully
owned government corporation. The constitutional ban applied then, as it still applies
now, only to "private corporations and associations." PD No. 1084 expressly
empowers PEA "to hold lands of the public domain" even "in excess of the area
permitted to private corporations by statute." Thus, PEA can hold title to private
lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the
public domain, there must be legislative authority empowering PEA to sell these lands.
This legislative authority is necessary in view of Section 60 of CA No.141, which states
–

"Sec. 60. x x x; but the land so granted, donated or transferred to a province,

municipality, or branch or subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner affecting its title, except
when authorized by Congress; x x x." (Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed
foreshore and submerged alienable lands of the public domain. Nevertheless, any
legislative authority granted to PEA to sell its reclaimed alienable lands of the public
domain would be subject to the constitutional ban on private corporations from acquiring
alienable lands of the public domain. Hence, such legislative authority could only benefit
private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the
Regalian doctrine. The 1987 Constitution declares that all natural resources are
"owned by the State," and except for alienable agricultural lands of the public domain,
natural resources cannot be alienated. Sections 2 and 3, Article XII of the 1987
Constitution state that –

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. x x x.
 Section 3. Lands of the public domain are classified into agricultural, forest or
timber, mineral lands, and national parks. Agricultural lands of the public domain
may be further classified by law according to the uses which they may be
devoted. Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease, for a period not
exceeding twenty-five years, renewable for not more than twenty-five
years, and not to exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or acquire not more
than twelve hectares thereof by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and

development, and subject to the requirements of agrarian reform, the Congress
shall determine, by law, the size of lands of the public domain which may be
acquired, developed, held, or leased and the conditions therefor." (Emphasis
supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning
private corporations from acquiring any kind of alienable land of the public domain.
Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold
alienable lands of the public domain only through lease. As in the 1935 and 1973
Constitutions, the general law governing the lease to private corporations of reclaimed,
foreshore and marshy alienable lands of the public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except
through lease, alienable lands of the public domain is not well understood. During the
deliberations of the 1986 Constitutional Commission, the commissioners probed the
rationale behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5

which says:

`No private corporation or association may hold alienable lands of the public
domain except by lease, not to exceed one thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was
introduced in the 1973 Constitution. In effect, it prohibits private corporations
from acquiring alienable public lands. But it has not been very clear in
jurisprudence what the reason for this is. In some of the cases decided in
1982 and 1983, it was indicated that the purpose of this is to prevent large
landholdings. Is that the intent of this provision?

MR. VILLEGAS: I think that is the spirit of the provision.

 FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were
instances where the Iglesia ni Cristo was not allowed to acquire a mere 313-
square meter land where a chapel stood because the Supreme Court said it
would be in violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this
way:

"Indeed, one purpose of the constitutional prohibition against purchases of public

agricultural lands by private corporations is to equitably diffuse land ownership or
to encourage 'owner-cultivatorship and the economic family-size farm' and to
prevent a recurrence of cases like the instant case. Huge landholdings by
corporations or private persons had spawned social unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution

could have simply limited the size of alienable lands of the public domain that
corporations could acquire. The Constitution could have followed the limitations on
individuals, who could acquire not more than 24 hectares of alienable lands of the public
domain under the 1973 Constitution, and not more than 12 hectares under the 1987
Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land
in the name of a corporation would be more effective in preventing the break-up of
farmlands. If the farmland is registered in the name of a corporation, upon the death of
the owner, his heirs would inherit shares in the corporation instead of subdivided
parcels of the farmland. This would prevent the continuing break-up of farmlands into
smaller and smaller plots from one generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on

individuals from acquiring more than the allowed area of alienable lands of the public
domain. Without the constitutional ban, individuals who already acquired the maximum
area of alienable lands of the public domain could easily set up corporations to acquire
more alienable public lands. An individual could own as many corporations as his
means would allow him. An individual could even hide his ownership of a corporation by
putting his nominees as stockholders of the corporation. The corporation is a convenient
vehicle to circumvent the constitutional limitation on acquisition by individuals of
alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer
ownership of only a limited area of alienable land of the public domain to a qualified
individual. This constitutional intent is safeguarded by the provision prohibiting
corporations from acquiring alienable lands of the public domain, since the vehicle to
circumvent the constitutional intent is removed. The available alienable public lands are
gradually decreasing in the face of an ever-growing population. The most effective way
to insure faithful adherence to this constitutional intent is to grant or sell alienable lands
of the public domain only to individuals. This, it would seem, is the practical benefit
arising from the constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause,
consists of three properties, namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio

Aguinaldo Boulevard in Paranaque and Las Pinas, Metro Manila, with a
combined titled area of 1,578,441 square meters;"

2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;"

and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or

less to regularize the configuration of the reclaimed area." 65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands
and further reclamation of about 250 hectares x x x," plus an option "granted to AMARI
to subsequently reclaim another 350 hectares x x x." 66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84
hectares of the 750-hectare reclamation project have been reclaimed, and the rest
of the 592.15 hectares are still submerged areas forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for
PEA's "actual cost" in partially reclaiming the Freedom Islands. AMARI will also
complete, at its own expense, the reclamation of the Freedom Islands. AMARI will
further shoulder all the reclamation costs of all the other areas, totaling 592.15 hectares,
still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30
percent, respectively, the total net usable area which is defined in the Amended JVA as
the total reclaimed area less 30 percent earmarked for common areas. Title to AMARI's
share in the net usable area, totaling 367.5 hectares, will be issued in the name of
AMARI. Section 5.2 (c) of the Amended JVA provides that –

"x x x, PEA shall have the duty to execute without delay the necessary deed of
transfer or conveyance of the title pertaining to AMARI's Land share based on
the Land Allocation Plan. PEA, when requested in writing by AMARI, shall
then cause the issuance and delivery of the proper certificates of title
covering AMARI's Land Share in the name of AMARI, x x x; provided, that if
more than seventy percent (70%) of the titled area at any given time pertains to
AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the titles
pertaining to AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a maximum of
367.5 hectares of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI

joint venture PEA's statutory authority, rights and privileges to reclaim foreshore and
submerged areas in Manila Bay. Section 3.2.a of the Amended JVA states that –

"PEA hereby contributes to the joint venture its rights and privileges to perform
Rawland Reclamation and Horizontal Development as well as own the
Reclamation Area, thereby granting the Joint Venture the full and exclusive right,
authority and privilege to undertake the Project in accordance with the Master
Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25,
1995 and its supplemental agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own
under the Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas
in Manila Bay in view of Sections 2 and 3, Article XII of the 1987 Constitution which
state that:

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources
shall not be alienated. x x x.

xxx

Section 3. x x x Alienable lands of the public domain shall be limited to

agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease, x x x."(Emphasis
supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of
Manila Bay are alienable or disposable lands of the public domain. In its
Memorandum,67 PEA admits that –

"Under the Public Land Act (CA 141, as amended), reclaimed lands are
classified as alienable and disposable lands of the public domain:
 'Sec. 59. The lands disposable under this title shall be classified as
follows:

(a) Lands reclaimed by the government by dredging, filling, or other

means;

x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force68 constituted under Presidential Administrative Order

No. 365 admitted in its Report and Recommendation to then President Fidel V.
Ramos, "[R]eclaimed lands are classified as alienable and disposable lands of the
public domain."69 The Legal Task Force concluded that –

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority,
the rights of ownership and disposition over reclaimed lands have been
transferred to PEA, by virtue of which PEA, as owner, may validly convey the
same to any qualified person without violating the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public

land, except by lease (Sec. 3, Art. XVII,70 1987 Constitution), does not apply to
reclaimed lands whose ownership has passed on to PEA by statutory grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged
areas of Manila Bay are part of the "lands of the public domain, waters x x x and other
natural resources" and consequently "owned by the State." As such, foreshore and
submerged areas "shall not be alienated," unless they are classified as "agricultural
lands" of the public domain. The mere reclamation of these areas by PEA does not
convert these inalienable natural resources of the State into alienable or disposable
lands of the public domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and open to disposition or
concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use. 71

Section 8 of CA No. 141 provides that "only those lands shall be declared open to
disposition or concession which have been officially delimited and classified."72 The
President has the authority to classify inalienable lands of the public domain into
alienable or disposable lands of the public domain, pursuant to Section 6 of CA No. 141.
In Laurel vs. Garcia,73 the Executive Department attempted to sell the Roppongi
property in Tokyo, Japan, which was acquired by the Philippine Government for use as
the Chancery of the Philippine Embassy. Although the Chancery had transferred to
another location thirteen years earlier, the Court still ruled that, under Article 422 74 of the
Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –
 "The fact that the Roppongi site has not been used for a long time for actual
Embassy service does not automatically convert it to patrimonial property. Any
such conversion happens only if the property is withdrawn from public use (Cebu
Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A property
continues to be part of the public domain, not available for private
appropriation or ownership 'until there is a formal declaration on the part
of the government to withdraw it from being such' (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land
patents for lands reclaimed by PEA from the foreshore or submerged areas of Manila
Bay. On January 19, 1988 then President Corazon C. Aquino issued Special Patent No.
3517 in the name of PEA for the 157.84 hectares comprising the partially reclaimed
Freedom Islands. Subsequently, on April 9, 1999 the Register of Deeds of the
Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA
pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title are still in the name
of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent

covering the Freedom Islands, is equivalent to an official proclamation classifying the
Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085
and President Aquino's issuance of a land patent also constitute a declaration that the
Freedom Islands are no longer needed for public service. The Freedom Islands are
thus alienable or disposable lands of the public domain, open to disposition or
concession to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already
reclaimed the Freedom Islands although subsequently there were partial erosions on
some areas. The government had also completed the necessary surveys on these
islands. Thus, the Freedom Islands were no longer part of Manila Bay but part of the
land mass. Section 3, Article XII of the 1987 Constitution classifies lands of the public
domain into "agricultural, forest or timber, mineral lands, and national parks." Being
neither timber, mineral, nor national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural lands of the public domain. Under
the 1987 Constitution, agricultural lands of the public domain are the only natural
resources that the State may alienate to qualified private parties. All other natural
resources, such as the seas or bays, are "waters x x x owned by the State" forming part
of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987
Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a
private corporation, reclaimed the islands under a contract dated November 20, 1973
with the Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law
of Waters of 1866, argues that "if the ownership of reclaimed lands may be given to the
party constructing the works, then it cannot be said that reclaimed lands are lands of the
public domain which the State may not alienate." 75 Article 5 of the Spanish Law of
Waters reads as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by

the State, or by the provinces, pueblos or private persons, with proper
permission, shall become the property of the party constructing such
works, unless otherwise provided by the terms of the grant of authority."
(Emphasis supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from
the sea only with "proper permission" from the State. Private parties could own the
reclaimed land only if not "otherwise provided by the terms of the grant of authority."
This clearly meant that no one could reclaim from the sea without permission from the
State because the sea is property of public dominion. It also meant that the State could
grant or withhold ownership of the reclaimed land because any reclaimed land, like the
sea from which it emerged, belonged to the State. Thus, a private person reclaiming
from the sea without permission from the State could not acquire ownership of the
reclaimed land which would remain property of public dominion like the sea it
replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored
principle of land ownership that "all lands that were not acquired from the government,
either by purchase or by grant, belong to the public domain." 77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently
enacted on the disposition of public lands. In particular, CA No. 141 requires that lands
of the public domain must first be classified as alienable or disposable before the
government can alienate them. These lands must not be reserved for public or quasi-
public purposes.78 Moreover, the contract between CDCP and the government was
executed after the effectivity of the 1973 Constitution which barred private corporations
from acquiring any kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing
the reclamation of areas under water and revested solely in the National Government
the power to reclaim lands. Section 1 of PD No. 3-A declared that –

"The provisions of any law to the contrary notwithstanding, the reclamation

of areas under water, whether foreshore or inland, shall be limited to the
National Government or any person authorized by it under a proper
contract. (Emphasis supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because
reclamation of areas under water could now be undertaken only by the National
Government or by a person contracted by the National Government. Private parties may
reclaim from the sea only under a contract with the National Government, and no longer
by grant or permission as provided in Section 5 of the Spanish Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government's implementing arm to undertake "all reclamation projects of the
government," which "shall be undertaken by the PEA or through a proper contract
executed by it with any person or entity." Under such contract, a private party
receives compensation for reclamation services rendered to PEA. Payment to the
contractor may be in cash, or in kind consisting of portions of the reclaimed land,
subject to the constitutional ban on private corporations from acquiring alienable lands
of the public domain. The reclaimed land can be used as payment in kind only if the
reclaimed land is first classified as alienable or disposable land open to disposition, and
then declared no longer needed for public service.

The Amended JVA covers not only the Freedom Islands, but also an additional 592.15
hectares which are still submerged and forming part of Manila Bay. There is no
legislative or Presidential act classifying these submerged areas as alienable or
disposable lands of the public domain open to disposition. These submerged
areas are not covered by any patent or certificate of title. There can be no dispute that
these submerged areas form part of the public domain, and in their present state
are inalienable and outside the commerce of man. Until reclaimed from the sea,
these submerged areas are, under the Constitution, "waters x x x owned by the State,"
forming part of the public domain and consequently inalienable. Only when actually
reclaimed from the sea can these submerged areas be classified as public agricultural
lands, which under the Constitution are the only natural resources that the State may
alienate. Once reclaimed and transformed into public agricultural lands, the government
may then officially classify these lands as alienable or disposable lands open to
disposition. Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable or
disposable lands of the public domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or
disposable lands open to disposition is necessary because PEA is tasked under its
charter to undertake public services that require the use of lands of the public domain.
Under Section 5 of PD No. 1084, the functions of PEA include the following: "[T]o own
or operate railroads, tramways and other kinds of land transportation, x x x; [T]o
construct, maintain and operate such systems of sanitary sewers as may be necessary;
[T]o construct, maintain and operate such storm drains as may be necessary." PEA is
empowered to issue "rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings and/or any of
its properties and to impose or collect fees or tolls for their use." Thus, part of the
reclaimed foreshore and submerged lands held by the PEA would actually be needed
for public use or service since many of the functions imposed on PEA by its charter
constitute essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily
responsible for integrating, directing, and coordinating all reclamation projects for and
on behalf of the National Government." The same section also states that "[A]ll
reclamation projects shall be approved by the President upon recommendation of the
PEA, and shall be undertaken by the PEA or through a proper contract executed by it
with any person or entity; x x x." Thus, under EO No. 525, in relation to PD No. 3-A and
PD No.1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No.
525 recognized PEA as the government entity "to undertake the reclamation of lands
and ensure their maximum utilization in promoting public welfare and
interests."79 Since large portions of these reclaimed lands would obviously be needed
for public service, there must be a formal declaration segregating reclaimed lands no
longer needed for public service from those still needed for public service.1âwphi1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to
or be owned by the PEA," could not automatically operate to classify inalienable lands
into alienable or disposable lands of the public domain. Otherwise, reclaimed foreshore
and submerged lands of the public domain would automatically become alienable once
reclaimed by PEA, whether or not classified as alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO
No. 525, vests in the Department of Environment and Natural Resources ("DENR" for
brevity) the following powers and functions:

"Sec. 4. Powers and Functions. The Department shall:

(1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and

disposable public lands, mineral resources and, in the process of exercising
such control, impose appropriate taxes, fees, charges, rentals and any such form
of levy and collect such revenues for the exploration, development, utilization or
gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of

licenses, permits, concessions, lease agreements and such other
privileges concerning the development, exploration and utilization of the
country's marine, freshwater, and brackish water and over all aquatic
resources of the country and shall continue to oversee, supervise and
police our natural resources; cancel or cause to cancel such privileges upon
failure, non-compliance or violations of any regulation, order, and for all other
 causes which are in furtherance of the conservation of natural resources and
supportive of the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of

all lands of the public domain and serve as the sole agency responsible for
classification, sub-classification, surveying and titling of lands in consultation
with appropriate agencies."80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR
exercises "supervision and control over alienable and disposable public lands." DENR
also exercises "exclusive jurisdiction on the management and disposition of all lands of
the public domain." Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This means that PEA
needs authorization from DENR before PEA can undertake reclamation projects in
Manila Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public
domain. Hence, DENR decides whether reclaimed lands of PEA should be classified as
alienable under Sections 681 and 782 of CA No. 141. Once DENR decides that the
reclaimed lands should be so classified, it then recommends to the President the
issuance of a proclamation classifying the lands as alienable or disposable lands of the
public domain open to disposition. We note that then DENR Secretary Fulgencio S.
Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the Revised
Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under
water, while PEA is vested with the power to undertake the physical reclamation of
areas under water, whether directly or through private contractors. DENR is also
empowered to classify lands of the public domain into alienable or disposable lands
subject to the approval of the President. On the other hand, PEA is tasked to develop,
sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas
does not make the reclaimed lands alienable or disposable lands of the public domain,
much less patrimonial lands of PEA. Likewise, the mere transfer by the National
Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.

Absent two official acts – a classification that these lands are alienable or disposable
and open to disposition and a declaration that these lands are not needed for public
service, lands reclaimed by PEA remain inalienable lands of the public domain. Only
such an official classification and formal declaration can convert reclaimed lands into
alienable or disposable lands of the public domain, open to disposition under the
Constitution, Title I and Title III83 of CA No. 141 and other applicable laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the
public domain, the reclaimed lands shall be disposed of in accordance with CA No. 141,
the Public Land Act. PEA, citing Section 60 of CA No. 141, admits that reclaimed lands
transferred to a branch or subdivision of the government "shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its title, except when
authorized by Congress: x x x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of
1987, which states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of
the Government is authorized by law to be conveyed, the deed of conveyance
shall be executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to
the Government. The Court declared that -

"It is not for the President to convey real property of the government on his or her
own sole will. Any such conveyance must be authorized and approved by a
law enacted by the Congress. It requires executive and legislative
concurrence." (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority
allowing PEA to sell its reclaimed lands. PD No. 1085, issued on February 4, 1977,
provides that –

"The land reclaimed in the foreshore and offshore area of Manila

Bay pursuant to the contract for the reclamation and construction of the Manila-
Cavite Coastal Road Project between the Republic of the Philippines and the
Construction and Development Corporation of the Philippines dated November
20, 1973 and/or any other contract or reclamation covering the same area is
hereby transferred, conveyed and assigned to the ownership and
administration of the Public Estates Authority established pursuant to PD No.
1084; Provided, however, That the rights and interests of the Construction and
Development Corporation of the Philippines pursuant to the aforesaid contract
shall be recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the
obligations of the Republic of the Philippines (Department of Public Highways)
arising from, or incident to, the aforesaid contract between the Republic of the
Philippines and the Construction and Development Corporation of the
Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates

Authority shall issue in favor of the Republic of the Philippines the corresponding
 shares of stock in said entity with an issued value of said shares of stock (which)
shall be deemed fully paid and non-assessable.

The Secretary of Public Highways and the General Manager of the Public
Estates Authority shall execute such contracts or agreements, including
appropriate agreements with the Construction and Development Corporation of
the Philippines, as may be necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural

Resources in favor of the Public Estates Authority without prejudice to the
subsequent transfer to the contractor or his assignees of such portion or
portions of the land reclaimed or to be reclaimed as provided for in the
above-mentioned contract. On the basis of such patents, the Land
Registration Commission shall issue the corresponding certificate of title."
(Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that
-

"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the

PEA which shall be responsible for its administration, development, utilization or
disposition in accordance with the provisions of Presidential Decree No. 1084.
Any and all income that the PEA may derive from the sale, lease or use of
reclaimed lands shall be used in accordance with the provisions of Presidential
Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell
its reclaimed lands. PD No. 1085 merely transferred "ownership and administration" of
lands reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands
reclaimed by PEA "shall belong to or be owned by PEA." EO No. 525 expressly states
that PEA should dispose of its reclaimed lands "in accordance with the provisions of
Presidential Decree No. 1084," the charter of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer,
deal in, subdivide, dispose, lease and sell any and all kinds of lands x x x owned,
managed, controlled and/or operated by the government." 87 (Emphasis supplied) There
is, therefore, legislative authority granted to PEA to sell its lands, whether
patrimonial or alienable lands of the public domain. PEA may sell to private parties
its patrimonial properties in accordance with the PEA charter free from constitutional
limitations. The constitutional ban on private corporations from acquiring alienable lands
of the public domain does not apply to the sale of PEA's patrimonial lands.

PEA may also sell its alienable or disposable lands of the public domain to private
individuals since, with the legislative authority, there is no longer any statutory
prohibition against such sales and the constitutional ban does not apply to individuals.
PEA, however, cannot sell any of its alienable or disposable lands of the public domain
to private corporations since Section 3, Article XII of the 1987 Constitution expressly
prohibits such sales. The legislative authority benefits only individuals. Private
corporations remain barred from acquiring any kind of alienable land of the public
domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be
transferred by PEA to the "contractor or his assignees" (Emphasis supplied) would not
apply to private corporations but only to individuals because of the constitutional ban.
Otherwise, the provisions of PD No. 1085 would violate both the 1973 and 1987
Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands
open to disposition, and further declared no longer needed for public service, PEA
would have to conduct a public bidding in selling or leasing these lands. PEA must
observe the provisions of Sections 63 and 67 of CA No. 141 requiring public auction, in
the absence of a law exempting PEA from holding a public auction. 88 Special Patent No.
3517 expressly states that the patent is issued by authority of the Constitution and PD
No. 1084, "supplemented by Commonwealth Act No. 141, as amended." This is an
acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed
alienable lands of the public domain unless otherwise provided by law. Executive Order
No. 654,89 which authorizes PEA "to determine the kind and manner of payment for the
transfer" of its assets and properties, does not exempt PEA from the requirement of
public auction. EO No. 654 merely authorizes PEA to decide the mode of payment,
whether in kind and in installment, but does not authorize PEA to dispense with public
auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government

Auditing Code, the government is required to sell valuable government property through
public bidding. Section 79 of PD No. 1445 mandates that –

"Section 79. When government property has become unserviceable for any

cause, or is no longer needed, it shall, upon application of the officer accountable
therefor, be inspected by the head of the agency or his duly authorized
representative in the presence of the auditor concerned and, if found to be
valueless or unsaleable, it may be destroyed in their presence. If found to be
valuable, it may be sold at public auction to the highest bidder under the
supervision of the proper committee on award or similar body in the presence of
the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for
not less than three consecutive days in any newspaper of general
circulation, or where the value of the property does not warrant the expense of
publication, by notices posted for a like period in at least three public places in
the locality where the property is to be sold. In the event that the public
auction fails, the property may be sold at a private sale at such price as
 may be fixed by the same committee or body concerned and approved by
the Commission."

It is only when the public auction fails that a negotiated sale is allowed, in which case
the Commission on Audit must approve the selling price. 90 The Commission on Audit
implements Section 79 of the Government Auditing Code through Circular No. 89-
29691 dated January 27, 1989. This circular emphasizes that government assets must
be disposed of only through public auction, and a negotiated sale can be resorted to
only in case of "failure of public auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's
reclaimed foreshore and submerged alienable lands of the public domain. Private
corporations are barred from bidding at the auction sale of any kind of alienable land of
the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10,
1991. PEA imposed a condition that the winning bidder should reclaim another 250
hectares of submerged areas to regularize the shape of the Freedom Islands, under a
60-40 sharing of the additional reclaimed areas in favor of the winning bidder. 92 No one,
however, submitted a bid. On December 23, 1994, the Government Corporate Counsel
advised PEA it could sell the Freedom Islands through negotiation, without need of
another public bidding, because of the failure of the public bidding on December 10,
1991.93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands
and the additional 250 hectares still to be reclaimed, it also granted an option to AMARI
to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares.94 The failure of public bidding on December 10,
1991, involving only 407.84 hectares,95 is not a valid justification for a negotiated sale of
750 hectares, almost double the area publicly auctioned. Besides, the failure of public
bidding happened on December 10, 1991, more than three years before the signing of
the original JVA on April 25, 1995. The economic situation in the country had greatly
improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute
and clear: "Private corporations or associations may not hold such alienable lands of the
public domain except by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for
brevity), cited by PEA and AMARI as legislative authority to sell reclaimed lands to
private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and

maintenance of any infrastructure projects undertaken through the build-operate-
and-transfer arrangement or any of its variations pursuant to the provisions of
this Act, the project proponent x x x may likewise be repaid in the form of a share
 in the revenue of the project or other non-monetary payments, such as, but not
limited to, the grant of a portion or percentage of the reclaimed land, subject to
the constitutional requirements with respect to the ownership of the land: x
x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a

government BOT project, cannot acquire reclaimed alienable lands of the public domain
in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI,
authorizes local governments in land reclamation projects to pay the contractor or
developer in kind consisting of a percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and

Management of Infrastructure Projects by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment

plan may consist of the grant of a portion or percentage of the reclaimed land or
the industrial estate constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar
to that of the BOT Law, the constitutional restrictions on land ownership automatically
apply even though not expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or
developer, if a corporate entity, can only be paid with leaseholds on portions of the
reclaimed land. If the contractor or developer is an individual, portions of the reclaimed
land, not exceeding 12 hectares96 of non-agricultural lands, may be conveyed to him in
ownership in view of the legislative authority allowing such conveyance. This is the only
way these provisions of the BOT Law and the Local Government Code can avoid a
direct collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to
public respondent PEA transformed such lands of the public domain to private lands."
This theory is echoed by AMARI which maintains that the "issuance of the special
patent leading to the eventual issuance of title takes the subject land away from the land
of public domain and converts the property into patrimonial or private property." In short,
PEA and AMARI contend that with the issuance of Special Patent No. 3517 and the
corresponding certificates of titles, the 157.84 hectares comprising the Freedom Islands
have become private lands of PEA. In support of their theory, PEA and AMARI cite the
following rulings of the Court:
 1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

"Once the patent was granted and the corresponding certificate of title was
issued, the land ceased to be part of the public domain and became private
property over which the Director of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of
title based on a public land patent, the land covered thereby automatically comes
under the operation of Republic Act 496 subject to all the safeguards provided
therein."3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,99 where the Court
ruled -

"While the Director of Lands has the power to review homestead patents, he may
do so only so long as the land remains part of the public domain and continues to
be under his exclusive control; but once the patent is registered and a certificate
of title is issued, the land ceases to be part of the public domain and becomes
private property over which the Director of Lands has neither control nor
jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free
patents were issued covering the same in favor of the private respondents, the
said lots ceased to be part of the public domain and, therefore, the Director of
Lands lost jurisdiction over the same."

5.Republic v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally

effected a land grant to the Mindanao Medical Center, Bureau of Medical
Services, Department of Health, of the whole lot, validly sufficient for initial
registration under the Land Registration Act. Such land grant is constitutive of a
'fee simple' title or absolute title in favor of petitioner Mindanao Medical Center.
Thus, Section 122 of the Act, which governs the registration of grants or patents
involving public lands, provides that 'Whenever public lands in the Philippine
Islands belonging to the Government of the United States or to the Government
of the Philippines are alienated, granted or conveyed to persons or to public or
private corporations, the same shall be brought forthwith under the operation of
this Act (Land Registration Act, Act 496) and shall become registered lands.'"

The first four cases cited involve petitions to cancel the land patents and the
corresponding certificates of titles issued to private parties. These four cases
uniformly hold that the Director of Lands has no jurisdiction over private lands or that
upon issuance of the certificate of title the land automatically comes under the Torrens
System. The fifth case cited involves the registration under the Torrens System of a
12.8-hectare public land granted by the National Government to Mindanao Medical
Center, a government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital buildings
and other facilities of Mindanao Medical Center, which performed a public service. The
Court affirmed the registration of the 12.8-hectare public land in the name of Mindanao
Medical Center under Section 122 of Act No. 496. This fifth case is an example of a
public land being registered under Act No. 496 without the land losing its character as a
property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name
of PEA, a wholly government owned corporation performing public as well as
proprietary functions. No patent or certificate of title has been issued to any private
party. No one is asking the Director of Lands to cancel PEA's patent or certificates of
title. In fact, the thrust of the instant petition is that PEA's certificates of title should
remain with PEA, and the land covered by these certificates, being alienable lands of
the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant
private or public ownership of the land. Registration is not a mode of acquiring
ownership but is merely evidence of ownership previously conferred by any of the
recognized modes of acquiring ownership. Registration does not give the registrant a
better right than what the registrant had prior to the registration. 102 The registration of
lands of the public domain under the Torrens system, by itself, cannot convert public
lands into private lands.103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of
title the alienable land of the public domain automatically becomes private land cannot
apply to government units and entities like PEA. The transfer of the Freedom Islands to
PEA was made subject to the provisions of CA No. 141 as expressly stated in Special
Patent No. 3517 issued by then President Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the

Philippines and in conformity with the provisions of Presidential Decree No.
1084, supplemented by Commonwealth Act No. 141, as amended, there are
hereby granted and conveyed unto the Public Estates Authority the aforesaid
tracts of land containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters; the technical description of
which are hereto attached and made an integral part hereof." (Emphasis
supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not
covered by PD No. 1084. Section 60 of CA No. 141 prohibits, "except when authorized
by Congress," the sale of alienable lands of the public domain that are transferred to
government units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of
PD No. 1529, a "statutory lien affecting title" of the registered land even if not annotated
on the certificate of title.104 Alienable lands of the public domain held by government
entities under Section 60 of CA No. 141 remain public lands because they cannot be
alienated or encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the constitutional ban. Only individuals
can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA
No. 141 does not automatically convert alienable lands of the public domain into private
or patrimonial lands. The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to dispose of public lands,
before these lands can become private or patrimonial lands. Otherwise, the
constitutional ban will become illusory if Congress can declare lands of the public
domain as private or patrimonial lands in the hands of a government agency tasked to
dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly
public lands.

Under EO No. 525, PEA became the central implementing agency of the National
Government to reclaim foreshore and submerged areas of the public domain. Thus, EO
No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for
all Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being
proposed to be undertaken in various parts of the country which need to be
evaluated for consistency with national programs;

Whereas, there is a need to give further institutional support to the Government's

declared policy to provide for a coordinated, economical and efficient reclamation
of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall
be limited to the National Government or any person authorized by it under
proper contract;

Whereas, a central authority is needed to act on behalf of the National

Government which shall ensure a coordinated and integrated approach in
the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority
as a government corporation to undertake reclamation of lands and ensure
their maximum utilization in promoting public welfare and interests; and
 Whereas, Presidential Decree No. 1416 provides the President with continuing
authority to reorganize the national government including the transfer, abolition,
or merger of functions and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,

by virtue of the powers vested in me by the Constitution and pursuant to
Presidential Decree No. 1416, do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible

for integrating, directing, and coordinating all reclamation projects for and
on behalf of the National Government. All reclamation projects shall be
approved by the President upon recommendation of the PEA, and shall be
undertaken by the PEA or through a proper contract executed by it with any
person or entity; Provided, that, reclamation projects of any national government
agency or entity authorized under its charter shall be undertaken in consultation
with the PEA upon approval of the President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects

nationwide, with authority to sell reclaimed lands, PEA took the place of DENR as the
government agency charged with leasing or selling reclaimed lands of the public
domain. The reclaimed lands being leased or sold by PEA are not private lands, in the
same manner that DENR, when it disposes of other alienable lands, does not dispose of
private lands but alienable lands of the public domain. Only when qualified private
parties acquire these lands will the lands become private lands. In the hands of the
government agency tasked and authorized to dispose of alienable of disposable
lands of the public domain, these lands are still public, not private lands.

Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public
domain" as well as "any and all kinds of lands." PEA can hold both lands of the public
domain and private lands. Thus, the mere fact that alienable lands of the public domain
like the Freedom Islands are transferred to PEA and issued land patents or certificates
of title in PEA's name does not automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as
private lands will sanction a gross violation of the constitutional ban on private
corporations from acquiring any kind of alienable land of the public domain. PEA will
simply turn around, as PEA has now done under the Amended JVA, and transfer
several hundreds of hectares of these reclaimed and still to be reclaimed lands to a
single private corporation in only one transaction. This scheme will effectively nullify the
constitutional ban in Section 3, Article XII of the 1987 Constitution which was intended
to diffuse equitably the ownership of alienable lands of the public domain among
Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of the public
domain since PEA can "acquire x x x any and all kinds of lands." This will open the
floodgates to corporations and even individuals acquiring hundreds of hectares of
alienable lands of the public domain under the guise that in the hands of PEA these
lands are private lands. This will result in corporations amassing huge landholdings
never before seen in this country - creating the very evil that the constitutional ban was
designed to prevent. This will completely reverse the clear direction of constitutional
development in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973 Constitution
prohibited private corporations from acquiring any kind of public land, and the 1987
Constitution has unequivocally reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496
or PD No. 1529, automatically become private lands is contrary to existing laws. Several
laws authorize lands of the public domain to be registered under the Torrens System or
Act No. 496, now PD No. 1529, without losing their character as public lands. Section
122 of Act No. 496, and Section 103 of PD No. 1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x
Government of the Philippine Islands are alienated, granted, or conveyed to
persons or the public or private corporations, the same shall be brought
forthwith under the operation of this Act and shall become registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the

Government alienated, granted or conveyed to any person, the same shall be
brought forthwith under the operation of this Decree." (Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of
PD No. 1529 includes conveyances of public lands to public corporations.

Alienable lands of the public domain "granted, donated, or transferred to a province,

municipality, or branch or subdivision of the Government," as provided in Section 60 of
CA No. 141, may be registered under the Torrens System pursuant to Section 103 of
PD No. 1529. Such registration, however, is expressly subject to the condition in
Section 60 of CA No. 141 that the land "shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except when authorized by Congress."
This provision refers to government reclaimed, foreshore and marshy lands of the public
domain that have been titled but still cannot be alienated or encumbered unless
expressly authorized by Congress. The need for legislative authority prevents the
registered land of the public domain from becoming private land that can be disposed of
to qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands of the public
domain may be registered under the Torrens System. Section 48, Chapter 12, Book I of
the Code states –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of
the Government is authorized by law to be conveyed, the deed of conveyance
shall be executed in behalf of the government by the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in

the name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality."
(Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public
wharf may be titled in the name of a government corporation regulating port operations
in the country. Private property purchased by the National Government for expansion of
an airport may also be titled in the name of the government agency tasked to administer
the airport. Private property donated to a municipality for use as a town plaza or public
school site may likewise be titled in the name of the municipality. 106 All these properties
become properties of the public domain, and if already registered under Act No. 496 or
PD No. 1529, remain registered land. There is no requirement or provision in any
existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent
domain become unquestionably part of the public domain. Nevertheless, Section 85 of
PD No. 1529 authorizes the Register of Deeds to issue in the name of the National
Government new certificates of title covering such expropriated lands. Section 85 of PD
No. 1529 states –

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or
interest therein, is expropriated or taken by eminent domain, the National
Government, province, city or municipality, or any other agency or instrumentality
exercising such right shall file for registration in the proper Registry a certified
copy of the judgment which shall state definitely by an adequate description, the
particular property or interest expropriated, the number of the certificate of title,
and the nature of the public use. A memorandum of the right or interest taken
shall be made on each certificate of title by the Register of Deeds, and where the
fee simple is taken, a new certificate shall be issued in favor of the National
Government, province, city, municipality, or any other agency or
instrumentality exercising such right for the land so taken. The legal expenses
incident to the memorandum of registration or issuance of a new certificate of title
shall be for the account of the authority taking the land or interest therein."
(Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively
private or patrimonial lands. Lands of the public domain may also be registered
pursuant to existing laws.

AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the
Freedom Islands or of the lands to be reclaimed from submerged areas of Manila Bay.
In the words of AMARI, the Amended JVA "is not a sale but a joint venture with a
stipulation for reimbursement of the original cost incurred by PEA for the earlier
reclamation and construction works performed by the CDCP under its 1973 contract
with the Republic." Whether the Amended JVA is a sale or a joint venture, the fact
remains that the Amended JVA requires PEA to "cause the issuance and delivery of the
certificates of title conveying AMARI's Land Share in the name of AMARI." 107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which
provides that private corporations "shall not hold such alienable lands of the public
domain except by lease." The transfer of title and ownership to AMARI clearly means
that AMARI will "hold" the reclaimed lands other than by lease. The transfer of title and
ownership is a "disposition" of the reclaimed lands, a transaction considered a sale or
alienation under CA No. 141,108 the Government Auditing Code,109 and Section 3, Article
XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and
submerged areas form part of the public domain and are inalienable. Lands reclaimed
from foreshore and submerged areas also form part of the public domain and are also
inalienable, unless converted pursuant to law into alienable or disposable lands of the
public domain. Historically, lands reclaimed by the government are sui generis, not
available for sale to private parties unlike other alienable public lands. Reclaimed lands
retain their inherent potential as areas for public use or public service. Alienable lands of
the public domain, increasingly becoming scarce natural resources, are to be distributed
equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind
of alienable land of the public domain. Those who attempt to dispose of inalienable
natural resources of the State, or seek to circumvent the constitutional ban on alienation
of lands of the public domain to private corporations, do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now
covered by certificates of title in the name of PEA, are alienable lands of the
public domain. PEA may lease these lands to private corporations but may not
sell or transfer ownership of these lands to private corporations. PEA may only
sell these lands to Philippine citizens, subject to the ownership limitations in the
1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable

natural resources of the public domain until classified as alienable or disposable
 lands open to disposition and declared no longer needed for public service. The
government can make such classification and declaration only after PEA has
reclaimed these submerged areas. Only then can these lands qualify as
agricultural lands of the public domain, which are the only natural resources the
government can alienate. In their present state, the 592.15 hectares of
submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation,

ownership of 77.34 hectares110 of the Freedom Islands, such transfer is void for
being contrary to Section 3, Article XII of the 1987 Constitution which prohibits
private corporations from acquiring any kind of alienable land of the public
domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of

290.156 hectares111 of still submerged areas of Manila Bay, such transfer is void
for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits
the alienation of natural resources other than agricultural lands of the public
domain. PEA may reclaim these submerged areas. Thereafter, the government
can classify the reclaimed lands as alienable or disposable, and further declare
them no longer needed for public service. Still, the transfer of such reclaimed
alienable lands of the public domain to AMARI will be void in view of Section 3,
Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987
Constitution. Under Article 1409112 of the Civil Code, contracts whose "object or purpose
is contrary to law," or whose "object is outside the commerce of men," are "inexistent
and void from the beginning." The Court must perform its duty to defend and uphold the
Constitution, and therefore declares the Amended JVA null and void ab initio.

Seventh issue: whether the Court is the proper forum to raise the issue of
whether the Amended JVA is grossly disadvantageous to the government.

Considering that the Amended JVA is null and void ab initio, there is no necessity to rule
on this last issue. Besides, the Court is not a trier of facts, and this last issue involves a
determination of factual matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari
Coastal Bay Development Corporation are PERMANENTLY ENJOINED from
implementing the Amended Joint Venture Agreement which is hereby
declared NULL and VOID ab initio.

G.R. No. 180643             September 4, 2008

ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND
SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its
purpose, among others, is to assure that the nation will receive the benefit of candid,
objective and untrammeled communication and exchange of information between the
President and his/her advisers in the process of shaping or forming policies and arriving
at decisions in the exercise of the functions of the Presidency under the Constitution.
The confidentiality of the President’s conversations and correspondence is not unique. It
is akin to the confidentiality of judicial deliberations. It possesses the same value as the
right to privacy of all citizens and more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review
and arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal
branches of government. In this task, this Court should neither curb the legitimate
powers of any of the co-equal and coordinate branches of government nor allow any of
them to overstep the boundaries set for it by our Constitution. The competing interests
in the case at bar are the claim of executive privilege by the President, on the one hand,
and the respondent Senate Committees’ assertion of their power to conduct legislative
inquiries, on the other. The particular facts and circumstances of the present case,
stripped of the politically and emotionally charged rhetoric from both sides and viewed in
the light of settled constitutional and legal doctrines, plainly lead to the conclusion that
the claim of executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against
the respondent Senate Committees on Accountability of Public Officers and
Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively
the "respondent Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and

testified for about eleven (11) hours on matters concerning the National Broadband
Project (the "NBN Project"), a project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE").
Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman
Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Gloria Macapagal Arroyo
("President Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioner’s discussions
relating to the NBN Project, petitioner refused to answer, invoking "executive privilege."
To be specific, petitioner refused to answer questions on: (a) whether or not President
Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize
it,5 and (c) whether or not she directed him to approve it. 6

Respondent Committees persisted in knowing petitioner’s answers to these three

questions by requiring him to appear and testify once more on November 20, 2007. On
November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent
Committees and requested them to dispense with petitioner’s testimony on the ground
of executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials
which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23
May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in the exercise of
her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like
the value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and even blunt
or harsh opinions in Presidential decision-making. Disclosure of conversations of
the President will have a chilling effect on the President, and will hamper her in
the effective discharge of her duties and responsibilities, if she is not protected by
the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations
with the People’s Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide the Committee
any further details of these conversations, without disclosing the very thing the
privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the

settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions
propounded to him except the foregoing questions involving executive privilege,
we therefore request that his testimony on 20 November 2007 on the ZTE / NBN
project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon
orders of the President invoking executive privilege. On November 22, 2007, the
respondent Committees issued the show-cause letter requiring him to explain why he
should not be cited in contempt. On November 29, 2007, in petitioner’s reply to
respondent Committees, he manifested that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were those he claimed to be
covered by executive privilege. He also manifested his willingness to appear and testify
should there be new matters to be taken up. He just requested that he be furnished "in
advance as to what else" he "needs to clarify."

Respondent Committees found petitioner’s explanations unsatisfactory. Without

responding to his request for advance notice of the matters that he should still clarify,
they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 &
144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN
Project), citing petitioner in contempt of respondent Committees and ordering his arrest
and detention at the Office of the Senate Sergeant-at-Arms until such time that he
would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order. 8 He
insisted that he had not shown "any contemptible conduct worthy of contempt and
arrest." He emphasized his willingness to testify on new matters, but respondent
Committees did not respond to his request for advance notice of questions. He also
mentioned the petition for certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent Committees from enforcing the
order dated January 30, 2008 which declared him in contempt and directed his arrest
and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated
February 4, 2008, the parties were required to observe the status quo prevailing prior to
the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first,
the communications elicited by the three (3) questions were covered by executive
privilege; and second, respondent Committees committed grave abuse of discretion in
issuing the contempt order. Anent the first ground, we considered the subject
communications as falling under the presidential communications privilege because
(a) they related to a quintessential and non-delegable power of the President, (b) they
were received by a close advisor of the President, and (c) respondent Committees
failed to adequately show a compelling need that would justify the limitation of the
privilege and the unavailability of the information elsewhere by an appropriate
investigating authority. As to the second ground, we found that respondent Committees
committed grave abuse of discretion in issuing the contempt order because (a) there
was a valid claim of executive privilege, (b) their invitations to petitioner did not contain
the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity
of the proceeding that led to their issuance of the contempt order, (d) they violated
Section 21, Article VI of the Constitution because their inquiry was not in accordance
with the "duly published rules of procedure," and (e) they issued the contempt order
arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration,
anchored on the following grounds:

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO

DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT
COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE
POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE

NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT
CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO

FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS
ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY
EXECUTIVE PRIVILEGE, CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE

PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE

DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A

COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT

CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE
OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO

INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF
EXECUTIVE PRIVILEGE.
 IV

CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS

DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE
ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE

INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS

LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN

ACCORDANCE WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER

ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS
RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE
PROCESS WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION
ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.

E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT

ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and

distorting the Decision of this Court. He avers that there is nothing in it that prohibits
respondent Committees from investigating the NBN Project or asking him additional
questions. According to petitioner, the Court merely applied the rule on executive
privilege to the facts of the case. He further submits the following contentions: first, the
assailed Decision did not reverse the presumption against executive secrecy laid down
in Senate v. Ermita; second, respondent Committees failed to overcome the
presumption of executive privilege because it appears that they could legislate even
without the communications elicited by the three (3) questions, and they admitted that
they could dispense with petitioner’s testimony if certain NEDA documents would be
given to them; third, the requirement of specificity applies only to the privilege for State,
military and diplomatic secrets, not to the necessarily broad and all-encompassing
presidential communications privilege; fourth, there is no right to pry into the
President’s thought processes or exploratory exchanges; fifth, petitioner is not covering
up or hiding anything illegal; sixth, the Court has the power and duty to annul the
Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the
present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness
to be furnished advance copy of questions comports with due process and the
constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the
Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent
Committees pursuant to their oversight function; hence, there is no reason for them "to
make much" of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive privilege against
disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates
Authority (PEA)10; (3) the communications elicited by the three (3) questions are
covered by executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the
same void; and (6) respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008
(granting the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit
Attached Memorandum) only after the promulgation of the Decision in this case is
foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing
parties are as follows:

(1) whether or not there is a recognized presumptive presidential

communications privilege in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions;
and

(4) whether or not respondent Committees committed grave abuse of discretion

in issuing the contempt order.

We shall discuss these issues seriatim.

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees ardently argue that the Court’s declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down
in Senate v. Ermita11 that "inclines heavily against executive secrecy and in favor of
disclosure." Respondent Committees then claim that the Court erred in relying on the
doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal
system. That is far from the truth. The Court, in the earlier case of Almonte v.
Vasquez,12 affirmed that the presidential communications privilege is fundamental to
the operation of government and inextricably rooted in the separation of powers under
the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent
Committees, reiterated this concept. There, the Court enumerated the cases in which
the claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are
certain types of information which the government may withhold from the public, 16" that
there is a "governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters"; 17 and that "the right
to information does not extend to matters recognized as ‘privileged information’
under the separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet
meetings."18

Respondent Committees’ observation that this Court’s Decision reversed the

"presumption that inclines heavily against executive secrecy and in favor of disclosure"
arises from a piecemeal interpretation of the said Decision. The Court has repeatedly
held that in order to arrive at the true intent and meaning of a decision, no specific
portion thereof should be isolated and resorted to, but the decision must be considered
in its entirety.19

Note that the aforesaid presumption is made in the context of the circumstances
obtaining in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive
Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said
case reads:

From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisprudence, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the public,
is recognized only in relation to certain types of information of a sensitive
character. While executive privilege is a constitutional concept, a claim thereof
may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials
are exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers
to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of
E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means
that when an executive official, who is one of those mentioned in the said Sec. 2(b) of
E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the President to said executive
official, such that the presumption in this situation inclines heavily against executive
secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is
presumed to bear the President’s authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official.
These provisions thus allow the President to authorize claims of privilege by
mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of

the privilege. Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to the fulfillment
of the unique role and responsibilities of the executive branch, or in those
instances where exemption from disclosure is necessary to the discharge
of highly important executive responsibilities. The doctrine of executive privilege
is thus premised on the fact that certain information must, as a matter of
necessity, be kept confidential in pursuit of the public interest. The privilege
being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may of
course authorize the Executive Secretary to invoke the privilege on her behalf, in
which case the Executive Secretary must state that the authority is "By order of
the President", which means that he personally consulted with her. The privilege
being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her
subordinates to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive

privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464
does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who
invoked executive privilege on a specific matter involving an executive agreement
between the Philippines and China, which was the subject of the three (3) questions
propounded to petitioner Neri in the course of the Senate Committees’ investigation.
Thus, the factual setting of this case markedly differs from that passed upon in Senate
v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews
closely to the ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution. Being of American
origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.

Schwart defines executive privilege as "the power of the Government to

withhold information from the public, the courts, and the Congress.
Similarly, Rozell defines it as "the right of the President and high-level executive
branch officers to withhold information from Congress, the courts, and ultimately
the public." x x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used the term in
reference to the same privilege subject of Nixon. It quoted the following portion of
the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations,
for example, he has all the values to which we accord deference for the privacy
of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must be free
to explore alternatives in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation
of government and inextricably rooted in the separation of powers under
the Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for

Presidential communication," which was recognized early on in Almonte v. Vasquez. To
construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration
of respondent Committees, referring to the non-existence of a "presumptive
authorization" of an executive official, to mean that the "presumption" in favor of
executive privilege "inclines heavily against executive secrecy and in favor of
disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in
self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning of the relationship

between the Executive Department and the Legislative Department to explain why there
should be no implied authorization or presumptive authorization to invoke executive
privilege by the President’s subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They
are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on he being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of
governments which is sanctioned by a long-standing custom. (Underscoring
supplied)

Thus, if what is involved is the presumptive privilege of presidential communications

when invoked by the President on a matter clearly within the domain of the Executive,
the said presumption dictates that the same be recognized and be given preference or
priority, in the absence of proof of a compelling or critical need for disclosure by the one
assailing such presumption. Any construction to the contrary will render meaningless
the presumption accorded by settled jurisprudence in favor of executive privilege. In
fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a
presumptive privilege for Presidential communications." 23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3)
questions are not covered by executive privilege because the elements of
the presidential communications privilege are not present.

A. The power to enter into an executive agreement is a "quintessential and non-

delegable presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not
relate to a "quintessential and non-delegable presidential power," because the
Constitution does not vest it in the President alone, but also in the Monetary Board
which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make
such power less executive. "Quintessential" is defined as the most perfect embodiment
of something, the concentrated essence of substance. 24 On the other hand, "non-
delegable" means that a power or duty cannot be delegated to another or, even if
delegated, the responsibility remains with the obligor. 25 The power to enter into an
executive agreement is in essence an executive power. This authority of the President
to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall
submit to Congress a complete report of its decision before contracting or guaranteeing
foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and
judicial branches of government by no means prescribes absolute autonomy in the
discharge by each branch of that part of the governmental power assigned to it by the
sovereign people. There is the corollary doctrine of checks and balances, which has
been carefully calibrated by the Constitution to temper the official acts of each of these
three branches. Thus, by analogy, the fact that certain legislative acts require action
from the President for their validity does not render such acts less legislative in nature.
A good example is the power to pass a law. Article VI, Section 27 of the Constitution
mandates that every bill passed by Congress shall, before it becomes a law, be
presented to the President who shall approve or veto the same. The fact that the
approval or vetoing of the bill is lodged with the President does not render the power to
pass law executive in nature. This is because the power to pass law is generally a
quintessential and non-delegable power of the Legislature. In the same vein, the
executive power to enter or not to enter into a contract to secure foreign loans does not
become less executive in nature because of conditions laid down in the Constitution.
The final decision in the exercise of the said executive power is still lodged in the Office
of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the
scope of the presidential communications privilege but, in any case, it is not
conclusive.

Second, respondent Committees also seek reconsideration of the application of the

"doctrine of operational proximity" for the reason that "it maybe misconstrued to expand
the scope of the presidential communications privilege to communications between
those who are ‘operationally proximate’ to the President but who may have "no direct
communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re:
Sealed Case27precisely to limit the scope of the presidential communications privilege.
The U.S. court was aware of the dangers that a limitless extension of the privilege risks
and, therefore, carefully cabined its reach by explicitly confining it to White House staff,
and not to staffs of the agencies, and then only to White House staff that has
"operational proximity" to direct presidential decision-making, thus:
 We are aware that such an extension, unless carefully circumscribed to
accomplish the purposes of the privilege, could pose a significant risk of
expanding to a large swath of the executive branch a privilege that is bottomed
on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s decision-
making process is adequately protected. Not every person who plays a role in
the development of presidential advice, no matter how remote and removed
from the President, can qualify for the privilege. In particular, the privilege
should not extend to staff outside the White House in executive branch
agencies. Instead, the privilege should apply only to communications authored
or solicited and received by those members of an immediate White House
advisor’s staff who have broad and significant responsibility for investigation and
formulating the advice to be given the President on the particular matter to which
the communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to pose a
risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is
"operational proximity" to the President that matters in determining
whether "[t]he President’s confidentiality interests" is
implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the
executive branch" (a fear apparently entertained by respondents) is absent because the
official involved here is a member of the Cabinet, thus, properly within the term "advisor"
of the President; in fact, her alter ego and a member of her official family. Nevertheless,
in circumstances in which the official involved is far too remote, this Court also
mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v.
Department of Justice.28 This goes to show that the operational proximity test used in
the Decision is not considered conclusive in every case. In determining which test to
use, the main consideration is to limit the availability of executive privilege only to
officials who stand proximate to the President, not only by reason of their function, but
also by reason of their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be unnecessarily
expanded with the use of the operational proximity test is unfounded.

C. The President’s claim of executive privilege is not merely based on a

generalized interest; and in balancing respondent Committees’ and the
President’s clashing interests, the Court did not disregard the 1987 Constitutional
provisions on government transparency, accountability and disclosure of
information.

Third, respondent Committees claim that the Court erred in upholding the President’s
invocation, through the Executive Secretary, of executive privilege because (a) between
respondent Committees’ specific and demonstrated need and the President’s
generalized interest in confidentiality, there is a need to strike the balance in favor of the
former; and (b) in the balancing of interest, the Court disregarded the provisions of the
1987 Philippine Constitution on government transparency, accountability and disclosure
of information, specifically, Article III, Section 7;29 Article II, Sections 2430 and
28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article
XII, Sections 9,35 21,36 and 22.37

It must be stressed that the President’s claim of executive privilege is not merely
founded on her generalized interest in confidentiality. The Letter dated November 15,
2007 of Executive Secretary Ermita specified presidential communications
privilege in relation to diplomatic and economic relations with another sovereign
nation as the bases for the claim. Thus, the Letter stated:

The context in which executive privilege is being invoked is that the

information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China. Given the
confidential nature in which this information were conveyed to the President, he
cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the Executive to
state the reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. This is a matter of respect for a
coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the President’s
communication with her advisor. The NBN Project involves a foreign country as a party
to the agreement. It was actually a product of the meeting of minds between officials of
the Philippines and China. Whatever the President says about the agreement -
particularly while official negotiations are ongoing - are matters which China will surely
view with particular interest. There is danger in such kind of exposure. It could adversely
affect our diplomatic as well as economic relations with the People’s Republic of China.
We reiterate the importance of secrecy in matters involving foreign negotiations as
stated in United States v. Curtiss-Wright Export Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success must often
depend on secrecy, and even when brought to a conclusion, a full disclosure of
all the measures, demands, or eventual concessions which may have been
proposed or contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The
necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the
Senate, the principle on which the body was formed confining it to a small
number of members. To admit, then, a right in the House of Representatives to
demand and to have as a matter of course all the papers respecting a negotiation
with a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access
to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent
case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the
privileged character of diplomatic negotiations. In Akbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this

jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that "information on inter-government exchanges prior
to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even earlier, the same
privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in more
precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the
RP-US Military Bases Agreement. The Court denied the petition, stressing that
"secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of the freedom
of access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and

expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about "open" and
"secret" diplomacy, with disparagement of the latter, Secretaries of State
Hughes and Stimson have clearly analyzed and justified the practice. In
the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through

without many, many private talks and discussion, man to man;
many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their
troubles at home and of their differences with other countries
and with other delegates; they tell you of what they would do
under certain circumstances and would not do under other
circumstances… If these reports… should become public…
who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases,
June 7, 1930, pp. 282-284)

xxxx
 There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is
claimed, is incompatible with the substance of democracy. As
expressed by one writer, "It can be said that there is no more rigid system
of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have
"open covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of
publicity is possible. In the moment that negotiations are started,
pressure groups attempt to "muscle in." An ill-timed speech by one
of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-
Wright Export Corp. that the President is the sole organ of the nation in its
negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate
and manifold problems, the President alone has the power to speak or
listen as a representative of the nation. He makes treaties with the advice
and consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of the
nation in its external relations, and its sole representative with
foreign nations." Annals, 6th Cong., col. 613… (Emphasis supplied;
underscoring in the original)

Considering that the information sought through the three (3) questions subject of this
Petition involves the President’s dealings with a foreign nation, with more reason, this
Court is wary of approving the view that Congress may peremptorily inquire into not only
official, documented acts of the President but even her confidential and informal
discussions with her close advisors on the pretext that said questions serve some
vague legislative need. Regardless of who is in office, this Court can easily foresee
unwanted consequences of subjecting a Chief Executive to unrestricted congressional
inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the President’s decision-making process, which
inevitably would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions
regarding the right of the people to information and public accountability and
transparency, the Court finds nothing in these arguments to support respondent
Committees’ case.

There is no debate as to the importance of the constitutional right of the people to

information and the constitutional policies on public accountability and transparency.
These are the twin postulates vital to the effective functioning of a democratic
government. The citizenry can become prey to the whims and caprices of those to
whom the power has been delegated if they are denied access to information. And the
policies on public accountability and democratic government would certainly be mere
empty words if access to such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3)
specific questions, did not in any way curb the public’s right to information or diminish
the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in
aid of legislation. There is nothing in the assailed Decision that prohibits respondent
Committees from inquiring into the NBN Project. They could continue the investigation
and even call petitioner Neri to testify again. He himself has repeatedly expressed his
willingness to do so. Our Decision merely excludes from the scope of respondents’
investigation the three (3) questions that elicit answers covered by executive privilege
and rules that petitioner cannot be compelled to appear before respondents to answer
the said questions. We have discussed the reasons why these answers are covered by
executive privilege. That there is a recognized public interest in the confidentiality of
such information is a recognized principle in other democratic States. To put it simply,
the right to information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse

an absolute right to information. By their wording, the intention of the Framers to subject
such right to the regulation of the law is unmistakable. The highlighted portions of the
following provisions show the obvious limitations on the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents, and
papers pertaining to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all its
transactions involving public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there
are no specific laws prescribing the exact limitations within which the right may be
exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the
recognized restrictions to such rights, among them: (1) national security matters, (2)
trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information. National security matters include state secrets regarding military and
diplomatic matters, as well as information on inter-government exchanges prior to the
conclusion of treaties and executive agreements. It was further held that even where
there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to
obtain information allegedly in aid of legislation, not the people’s right to public
information. This is the reason why we stressed in the assailed Decision the distinction
between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for
the production of documents pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress" and "neither does the
right to information grant a citizen the power to exact testimony from government
officials." As pointed out, these rights belong to Congress, not to the individual citizen. It
is worth mentioning at this juncture that the parties here are respondent Committees
and petitioner Neri and that there was no prior request for information on the part of any
individual citizen. This Court will not be swayed by attempts to blur the distinctions
between the Legislature's right to information in a legitimate legislative inquiry and the
public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin
respondent Committees from inquiring into the NBN Project. All that is expected
from them is to respect matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually

lengthy discussion on the purported legislative nature of their entire inquiry, as opposed
to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of
respondent Committees’ inquiry into the NBN Project. To reiterate, this Court
recognizes respondent Committees’ power to investigate the NBN Project in aid of
legislation. However, this Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the course of a legislative
investigation, the legislative purpose of respondent Committees’ questions can be
sufficiently supported by the expedient of mentioning statutes and/or pending bills to
which their inquiry as a whole may have relevance. The jurisprudential test laid down by
this Court in past decisions on executive privilege is that the presumption of privilege
can only be overturned by a showing of compelling need for disclosure of the
information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority." In the Motion for
Reconsideration, respondent Committees argue that the information elicited by the
three (3) questions are necessary in the discharge of their legislative functions, among
them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.

We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing
against other interests and it is necessary to resolve the competing interests in a
manner that would preserve the essential functions of each branch. There, the Court
weighed between presidential privilege and the legitimate claims of the judicial process.
In giving more weight to the latter, the Court ruled that the President's generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way
of the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in
the Honorable Chief Justice Puno's dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic

commitment to the rule of law. This is nowhere more profoundly manifest than in
our view that 'the twofold aim (of criminal justice) is that guild shall not escape or
innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We
have elected to employ an adversary system of criminal justice in which the
parties contest all issues before a court of law. The need to develop all relevant
facts in the adversary system is both fundamental and comprehensive. The
ends of criminal justice would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts. The very integrity of
the judicial system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either
by the prosecution or by the defense.

xxx xxx xxx

 The right to the production of all evidence at a criminal trial similarly has
constitutional dimensions. The Sixth Amendment explicitly confers upon every
defendant in a criminal trial the right 'to be confronted with the witness
against him' and 'to have compulsory process for obtaining witnesses in his
favor.' Moreover, the Fifth Amendment also guarantees that no person shall be
deprived of liberty without due process of law. It is the manifest duty of the
courts to vindicate those guarantees, and to accomplish that it is essential that
all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of

confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on the
fair administration of criminal justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably

relevant in a criminal trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function of the
courts. A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional
need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in
the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure of a
limited number of conversations preliminarily shown to have some
bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed

materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands
of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a court’s need for facts in order to
adjudge liability in a criminal case but rather with the Senate’s need for information in
relation to its legislative functions. This leads us to consider once again just how critical
is the subject information in the discharge of respondent Committees’ functions. The
burden to show this is on the respondent Committees, since they seek to intrude into
the sphere of competence of the President in order to gather information which,
according to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on

the nature of a legislative inquiry in aid of legislation in this wise:
 The sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. There is a clear difference between
Congress' legislative tasks and the responsibility of a grand jury, or any institution
engaged in like functions. While fact-finding by a legislative committee is
undeniably a part of its task, legislative judgments normally depend more
on the predicted consequences of proposed legislative actions and their
political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in
its hearings. In contrast, the responsibility of the grand jury turns entirely on its
ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in
Nixon v. Sirica, one of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the exact text
of oral statements recorded in their original form, is undeniable. We see no
comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed materials are necessary
to its legislative judgments has been substantially undermined by subsequent
events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the
compelling or demonstratively critical and specific need for facts which is so essential to
the judicial power to adjudicate actual controversies. Also, the bare standard of
"pertinency" set in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate
Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting claims
between the Executive and the Legislative Branches is the recognized existence of the
presumptive presidential communications privilege. This is conceded even in the
Dissenting Opinion of the Honorable Chief Justice Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a

qualified presumption in favor of the Presidential communications privilege. As
shown in the previous discussion, U.S. v. Nixon, as well as the other related
Nixon cases Sirica and Senate Select Committee on Presidential Campaign
Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent
cases all recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the

respondent Senate Committees to overturn the presumption by demonstrating their
specific need for the information to be elicited by the answers to the three (3) questions
subject of this case, to enable them to craft legislation. Here, there is simply
a generalized assertion that the information is pertinent to the exercise of the power to
legislate and a broad and non-specific reference to pending Senate bills. It is not clear
what matters relating to these bills could not be determined without the said information
sought by the three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:

…If respondents are operating under the premise that the president and/or
her executive officials have committed wrongdoings that need to be
corrected or prevented from recurring by remedial legislation, the answer
to those three questions will not necessarily bolster or inhibit respondents
from proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before
legislatives bodies can come up with relevant legislation unlike in the adjudication of
cases by courts of law. Interestingly, during the Oral Argument before this Court, the
counsel for respondent Committees impliedly admitted that the Senate could still come
up with legislations even without petitioner answering the three (3) questions. In other
words, the information being elicited is not so critical after all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking
function of the Senate. For instance, question Number 1 whether the
President followed up the NBN project. According to the other counsel this
question has already been asked, is that correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the
Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN
 For instance, with respect to the proposed Bill of Senator Miriam Santiago,
she would like to indorse a Bill to include Executive Agreements had been
used as a device to the circumventing the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look
at this problem in its factual setting as counsel for petitioner has observed,
there are intimations of a bribery scandal involving high government
officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE,
is that critical to the lawmaking function of the Senate? Will it result to the
failure of the Senate to cobble a Bill without this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment

to the Procurement Law, Your Honor, because the petitioner had already
testified that he was offered a P200 Million bribe, so if he was offered a
P200 Million bribe it is possible that other government officials who had
something to do with the approval of the contract would be offered the
same amount of bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and
approve the project after being told about the alleged bribe. How critical is
that to the lawmaking function of the Senate? And the question is may
they craft a Bill a remedial law without forcing petitioner Neri to answer this
question?
 ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And
sound legislation requires that a proposed Bill should have some basis in
fact.42

The failure of the counsel for respondent Committees to pinpoint the specific need for
the information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges.
Due to the failure of the respondent Committees to successfully discharge this burden,
the presumption in favor of confidentiality of presidential communication stands. The
implication of the said presumption, like any other, is to dispense with the burden of
proof as to whether the disclosure will significantly impair the President’s performance
of her function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees’ bewailing that they would have to "speculate" regarding
the questions covered by the privilege, this does not evince a compelling need for the
information sought. Indeed, Senate Select Committee on Presidential Campaign
Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably
a part of its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability than on a
precise reconstruction of past events. It added that, normally, Congress legislates on
the basis of conflicting information provided in its hearings. We cannot subscribe to the
respondent Committees’ self-defeating proposition that without the answers to the three
(3) questions objected to as privileged, the distinguished members of the respondent
Committees cannot intelligently craft legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent
Committees’ need for information in the exercise of this function is not as compelling as
in instances when the purpose of the inquiry is legislative in nature. This is because
curbing graft and corruption is merely an oversight function of Congress. 44 And if this is
the primary objective of respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their purpose is legislative in
nature and not oversight. In any event, whether or not investigating graft and corruption
is a legislative or oversight function of Congress, respondent Committees’ investigation
cannot transgress bounds set by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must

perform under the Constitution. Moreover, as held in a recent case, "the
political question doctrine neither interposes an obstacle to judicial determination
of the rival claims. The jurisdiction to delimit constitutional boundaries has been
given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases. 46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent
Committee is not really ‘in aid of legislation’ because it is not related to a purpose
within the jurisdiction of Congress, since the aim of the investigation is to find
out whether or not the relatives of the President or Mr. Ricardo Lopa had violated
Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that
appears more within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery
to the Office of the President.48 While it may be a worthy endeavor to investigate the
potential culpability of high government officials, including the President, in a given
government transaction, it is simply not a task for the Senate to perform. The role of the
Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing.
Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of

legislation and a "search for truth," which in respondent Committees’ view appears to be
equated with the search for persons responsible for "anomalies" in government
contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume
the power reposed upon our prosecutorial bodies and courts. The determination of who
is/are liable for a crime or illegal activity, the investigation of the role played by each
official, the determination of who should be haled to court for prosecution and the task
of coming up with conclusions and finding of facts regarding anomalies, especially the
determination of criminal guilt, are not functions of the Senate. Congress is neither a law
enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e.
legislation. Investigations conducted solely to gather incriminatory evidence and
"punish" those investigated are indefensible. There is no Congressional power to
expose for the sake of exposure.49 In this regard, the pronouncement in Barenblatt v.
United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since

Congress may only investigate into the areas in which it may potentially legislate
or appropriate, it cannot inquire into matters which are within the exclusive
province of one of the other branches of the government. Lacking the judicial
power given to the Judiciary, it cannot inquire into matters that are exclusively the
concern of the Judiciary. Neither can it supplant the Executive in what exclusively
belongs to the Executive. (Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of
the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to
investigate any act or omission of any public official, employee, office or agency
when such act or omission appears to be illegal, unjust, improper, or
inefficient."51 The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the allegations of
anomaly are true and who are liable therefor. The same holds true for our courts upon
which the Constitution reposes the duty to determine criminal guilt with finality. Indeed,
the rules of procedure in the Office of the Ombudsman and the courts are well-
defined and ensure that the constitutionally guaranteed rights of all persons,
parties and witnesses alike, are protected and safeguarded.

Should respondent Committees uncover information related to a possible crime in the

course of their investigation, they have the constitutional duty to refer the matter to the
appropriate agency or branch of government. Thus, the Legislature’s need for
information in an investigation of graft and corruption cannot be deemed compelling
enough to pierce the confidentiality of information validly covered by executive privilege.
As discussed above, the Legislature can still legislate on graft and corruption even
without the information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioner’s claim of

executive privilege on the ground that there is no privilege when the information sought
might involve a crime or illegal activity, despite the absence of an administrative or
judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 the
showing required to overcome the presumption favoring confidentiality turned, not on
the nature of the presidential conduct that the subpoenaed material might reveal,
but, instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which the
material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential

Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the
said case, no impeachment proceeding has been initiated at present. The Court is not
persuaded. While it is true that no impeachment proceeding has been initiated,
however, complaints relating to the NBN Project have already been filed against
President Arroyo and other personalities before the Office of the Ombudsman. As the
Court has said earlier, the prosecutorial and judicial arms of government are the bodies
equipped and mandated by the Constitution and our laws to determine whether or not
the allegations of anomaly in the NBN Project are true and, if so, who should be
prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards
of evidence essential to arrive at accurate factual findings to which to apply the law.
Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provides that "technical rules of evidence applicable to judicial proceedings
which do not affect substantive rights need not be observed by the Committee." Court
rules which prohibit leading, hypothetical, or repetitive questions or questions calling for
a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person,
from the highest public official to the most ordinary citizen, has the right to be presumed
innocent until proven guilty in proper proceedings by a competent court or body.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in
issuing the contempt order because (1) there is no legitimate claim of executive
privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3)
they issued the contempt order in accordance with their internal Rules; (4) they did not
violate the requirement under Article VI, Section 21 of the Constitution requiring the
publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the
preceding pages, we see no reason to discuss it once again.

Respondent Committees’ second argument rests on the view that the ruling in Senate
v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute
which prompted the need for the inquiry" along with the "usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof" is not provided for by
the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.

An unconstrained congressional investigative power, like an unchecked Executive,

generates its own abuses. Consequently, claims that the investigative power of
Congress has been abused (or has the potential for abuse) have been raised many
times.53 Constant exposure to congressional subpoena takes its toll on the ability of the
Executive to function effectively. The requirements set forth in Senate v. Ermita are
modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry
must be confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their
constitutional right to due process. They should be adequately informed what matters
are to be covered by the inquiry. It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede too little political
costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its
power of inquiry. The logic of these requirements is well articulated in the study
conducted by William P. Marshall,55 to wit:
 A second concern that might be addressed is that the current system allows
committees to continually investigate the Executive without constraint. One
process solution addressing this concern is to require each investigation
be tied to a clearly stated purpose. At present, the charters of some
congressional committees are so broad that virtually any matter involving the
Executive can be construed to fall within their province. Accordingly,
investigations can proceed without articulation of specific need or purpose. A
requirement for a more precise charge in order to begin an inquiry should
immediately work to limit the initial scope of the investigation and should also
serve to contain the investigation once it is instituted. Additionally, to the extent
clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of action in
other areas, they would serve that goal in the context of congressional
investigations as well.

The key to this reform is in its details. A system that allows a standing
committee to simply articulate its reasons to investigate pro forma does no
more than imposes minimal drafting burdens. Rather, the system must be
designed in a manner that imposes actual burdens on the committee to
articulate its need for investigation and allows for meaningful debate about
the merits of proceeding with the investigation. (Emphasis supplied)

Clearly, petitioner’s request to be furnished an advance copy of questions is a

reasonable demand that should have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no

specific reference to any pending Senate bill. It did not also inform petitioner of the
questions to be asked. As it were, the subpoena merely commanded him to "testify on
what he knows relative to the subject matter under inquiry."

Anent the third argument, respondent Committees contend that their Rules of

Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach
of this Court. While it is true that this Court must refrain from reviewing the internal
processes of Congress, as a co-equal branch of government, however, when a
constitutional requirement exists, the Court has the duty to look into Congress’
compliance therewith. We cannot turn a blind eye to possible violations of the
Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De
Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the
courts the power to inquire into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the absence of showing that
there was a violation of a constitutional provision or the rights of private
individuals.
 United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution
empowers each House to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate fundamental rights, and
there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be
attained."

In the present case, the Court’s exercise of its power of judicial review is warranted
because there appears to be a clear abuse of the power of contempt on the part of
respondent Committees. Section 18 of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for
contempt any witness before it who disobey any order of the Committee or
refuses to be sworn or to testify or to answer proper questions by the Committee
or any of its members." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the
contempt order because during the deliberation of the three (3) respondent Committees,
only seven (7) Senators were present. This number could hardly fulfill the majority
requirement needed by respondent Committee on Accountability of Public Officers and
Investigations which has a membership of seventeen (17) Senators and
respondent Committee on National Defense and Security which has a membership of
eighteen (18) Senators. With respect to respondent Committee on Trade and
Commerce which has a membership of nine (9) Senators, only three (3) members were
present.57 These facts prompted us to quote in the Decision the exchanges between
Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the
issue of lack of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court,
Senator Francis Pangilinan stated that any defect in the committee voting had been
cured because two-thirds of the Senators effectively signed for the Senate in plenary
session.58

Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members
of the respondent Committees, the contempt order was prepared and thereafter
presented to the other members for signing. As a result, the contempt order which was
issued on January 30, 2008 was not a faithful representation of the proceedings that
took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter
was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees

may conduct inquiries in aid of legislation in accordance with its duly
 published rules of procedure. The rights of person appearing in or affected
by such inquiries shall be respected. (Emphasis supplied)

All the limitations embodied in the foregoing provision form part of the witness’ settled
expectation. If the limitations are not observed, the witness’ settled expectation is
shattered. Here, how could there be a majority vote when the members in attendance
are not enough to arrive at such majority? Petitioner has the right to expect that he can
be cited in contempt only through a majority vote in a proceeding in which the matter
has been fully deliberated upon. There is a greater measure of protection for the
witness when the concerns and objections of the members are fully articulated in such
proceeding. We do not believe that respondent Committees have the discretion to set
aside their rules anytime they wish. This is especially true here where what is involved
is the contempt power. It must be stressed that the Rules are not promulgated for their
benefit. More than anybody else, it is the witness who has the highest stake in the
proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees’

fourth argument. Respondent Committees argue that the Senate does not have to
publish its Rules because the same was published in 1995 and in 2006. Further, they
claim that the Senate is a continuing body; thus, it is not required to republish the Rules,
unless the same is repealed or amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution is
"continuing", as it is not dissolved as an entity with each national election or change in
the composition of its members. However, in the conduct of its day-to-day business the
Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present
for the first time. (emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills
and even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on
the Senate of the succeeding Congress to take up such unfinished matters, not in the
same status, but as if presented for the first time. The logic and practicality of such a
rule is readily apparent considering that the Senate of the succeeding Congress (which
will typically have a different composition as that of the previous Congress) should not
be bound by the acts and deliberations of the Senate of which they had no part. If the
Senate is a continuing body even with respect to the conduct of its business, then
pending matters will not be deemed terminated with the expiration of one Congress but
will, as a matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite
nature of the conduct of its business is reflected in its Rules. The Rules of the Senate
(i.e. the Senate’s main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the
preceding elections shall begin their term of office, the President may endorse
the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be

presented at least one day before its consideration, and the vote of the majority
of the Senators present in the session shall be required for its approval.
(emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition
of the Senate after an election and the possibility of the amendment or revision of the
Rules at the start of each session in which the newly elected Senators shall begin their
term.

However, it is evident that the Senate has determined that its main rules are intended to
be valid from the date of their adoption until they are amended or repealed. Such
language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules
shall take effect seven (7) days after publication in two (2) newspapers of general
circulation."59 The latter does not explicitly provide for the continued effectivity of such
rules until they are amended or repealed. In view of the difference in the language of the
two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries)
would continue into the next Congress. The Senate of the next Congress may easily
adopt different rules for its legislative inquiries which come within the rule on unfinished
business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It
is incumbent upon the Senate to publish the rules for its legislative inquiries in each
Congress or otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed to sufficiently
put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be
effective even in the next Congress, it could have easily adopted the same language it
had used in its main rules regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued
or proceedings conducted pursuant to the subject Rules are null and void. Only those
that result in violation of the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and
proceedings are considered valid and effective.

Respondent Committees’ last argument is that their issuance of the contempt order is
not precipitate or arbitrary. Taking into account the totality of circumstances, we find no
merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the
assertion of respondent Committees, petitioner did not assume that they no longer had
any other questions for him. He repeatedly manifested his willingness to attend
subsequent hearings and respond to new matters. His only request was that he be
furnished a copy of the new questions in advance to enable him to adequately prepare
as a resource person. He did not attend the November 20, 2007 hearing because
Executive Secretary Ermita requested respondent Committees to dispense with his
testimony on the ground of executive privilege. Note that petitioner is an executive
official under the direct control and supervision of the Chief Executive. Why punish
petitioner for contempt when he was merely directed by his superior? Besides, save for
the three (3) questions, he was very cooperative during the September 26, 2007
hearing.

On the part of respondent Committees, this Court observes their haste and impatience.
Instead of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly
dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have
informed petitioner of their ruling and given him time to decide whether to accede or file
a motion for reconsideration. After all, he is not just an ordinary witness; he is a high-
ranking official in a co-equal branch of government. He is an alter ego of the President.
The same haste and impatience marked the issuance of the contempt order, despite the
absence of the majority of the members of the respondent Committees, and their
subsequent disregard of petitioner’s motion for reconsideration alleging the pendency of
his petition for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the
Legislature are political branches of government. In a free and democratic society, the
interests of these branches inevitably clash, but each must treat the other with official
courtesy and respect. This Court wholeheartedly concurs with the proposition that it is
imperative for the continued health of our democratic institutions that we preserve the
constitutionally mandated checks and balances among the different branches of
government.

In the present case, it is respondent Committees’ contention that their determination on

the validity of executive privilege should be binding on the Executive and the Courts. It
is their assertion that their internal procedures and deliberations cannot be inquired into
by this Court supposedly in accordance with the principle of respect between co-equal
branches of government. Interestingly, it is a courtesy that they appear to be unwilling to
extend to the Executive (on the matter of executive privilege) or this Court (on the
matter of judicial review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the Legislature’s all-
encompassing, awesome power of investigation? It is a power, like any other, that is
susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to
ferret out corruption, even in the highest echelons of government, such lofty intentions
do not validate or accord to Congress powers denied to it by the Constitution and
granted instead to the other branches of government.

There is no question that any story of government malfeasance deserves an inquiry into
its veracity. As respondent Committees contend, this is founded on the constitutional
command of transparency and public accountability. The recent clamor for a "search for
truth" by the general public, the religious community and the academe is an indication of
a concerned citizenry, a nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the political branches of
government. The customary partisanship and the absence of generally accepted rules
on evidence are too great an obstacle in arriving at the truth or achieving justice that
meets the test of the constitutional guarantee of due process of law. We believe the
people deserve a more exacting "search for truth" than the process here in question, if
that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008

is hereby DENIED.

G.R. No. 189546               September 21, 2010

CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

ABAD, J.:
This case concerns the duty of the Commission on Elections (COMELEC) to disclose
the source code for the Automated Election System (AES) technologies it used in the
2010 national and local elections.

On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG),
a non-government organization,1 wrote respondent COMELEC, requesting a copy of the
source code of the Precinct Count Optical Scan (PCOS) programs, the Board of
Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal,
provincial, national, and congressional canvass, the COMELEC server programs, and
the source code of the in-house COMELEC programs called the Data Capturing System
(DCS) utilities.

CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.)
9369, which provides:

xxxx

Once an AES technology is selected for implementation, the Commission shall

promptly make the source code of that technology available and open to any
interested political party or groups which may conduct their own review thereof.

Section 2(12) of R.A. 9369 describes the source code as the "human readable
instructions that define what the computer equipment will do." This has been explained
in an article:

Source code is the human readable representation of the instructions that control the
operation of a computer. Computers are composed of hardware (the physical devices
themselves) and software (which controls the operation of the hardware). The software
instructs the computer how to operate; without software, the computer is useless.
Source code is the human readable form in which software is written by computer
programmers. Source code is usually written in a programming language that is arcane
and incomprehensible to non-specialists but, to a computer programmer, the source
code is the master blueprint that reveals and determines how the machine will behave.

Source code could be compared to a recipe: just as a cook follows the instructions in a
recipe step-by-step, so a computer executes the sequence of instructions found in the
software source code. This is a reasonable analogy, but it is also imperfect. While a
good cook will use her discretion and common sense in following a recipe, a computer
follows the instructions in the source code in a mechanical and unfailingly literal way;
thus, while errors in a recipe might be noticed and corrected by the cook, errors in
source code can be disastrous, because the code is executed by the computer exactly
as written, whether that was what the programmer intended or not x x x.

The source code in voting machines is in some ways analogous to the

procedures provided to election workers. Procedures are instructions that are
provided to people; for instance, the procedures provided to poll workers list a
sequence of steps that poll workers should follow to open the polls on election
morning. Source code contains instructions, not for people, but for the
computers running the election; for instance, the source code for a voting machine
determines the steps the machine will take when the polls are opened on election
morning.2 (Underscoring supplied)

On June 24, 2009 the COMELEC granted the request 3 for the source code of the PCOS
and the CCS, but denied that for the DCS, since the DCS was a "system used in
processing the Lists of Voters which is not part of the voting, counting and canvassing
systems contemplated by R.A. 9369." According to COMELEC, if the source code for
the DCS were to be divulged, unscrupulous individuals might change the program and
pass off an illicit one that could benefit certain candidates or parties.

Still, the COMELEC apparently did not release even the kinds of source code that it said
it was approving for release. Consequently, on July 13, 2009, CenPEG once more
asked COMELEC for the source code of the PCOS, together with other documents,
programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17
and 20 and on August 24, 2009.1avvphi1

On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not
yet exist for the reasons: 1) that it had not yet received the baseline source code of the
provider, Smartmatic, since payment to it had been withheld as a result of a pending
suit; 2) its customization of the baseline source code was targeted for completion in
November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still
had to be reviewed by "an established international certification entity," which review
was expected to be completed by the end of February 2010; and 4) only then would the
AES be made available for review under a controlled environment.

Rejecting COMELEC’s excuse, on October 5, 2009 CenPEG filed the present petition
for mandamus, seeking to compel COMELEC to immediately make its source codes
available to CenPEG and other interested parties.

COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-
defined right that was enforceable by mandamus because COMELEC’s duty to make
the source code available presupposed that it already had the same. COMELEC
restated the explanation it gave in its August 26, 2009 letter to CenPEG.

In its manifestation and omnibus motion, CenPEG did not believe that the source code
was still unavailable considering that COMELEC had already awarded to an
international certification entity the review of the same and that COMELEC had already
been field testing its PCOS and CCS machines.

On February 10, 2010 COMELEC filed a manifestation, stating that it had already
deposited on February 9, 2010 the source code to be used in the May 10, 2010
elections with the Bangko Sentral ng Pilipinas. Required to comment on this, CenPEG
said on February 22, 2010 that the manifestation did not constitute compliance with
Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436.

In its earlier comment, COMELEC claimed, reiterating what it said in its August 26, 2009
letter to CenPEG, that it would make the source code available for review by the end of
February 2010 "under a controlled environment." Apparently, this review had not taken
place and was overtaken by the May 10, 2010 elections.

On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its
prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that
the elections for which the subject source code was to be used had already been held.
It claimed that the source code remained important and relevant "not only for
compliance with the law, and the purpose thereof, but especially in the backdrop of
numerous admissions of errors and claims of fraud."

The Court finds the petition and this last manifestation meritorious.

The pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES
technology is selected for implementation, the Commission shall promptly make the
source code of that technology available and open to any interested political party or
groups which may conduct their own review thereof." The COMELEC has offered no
reason not to comply with this requirement of the law. Indeed, its only excuse for not
disclosing the source code was that it was not yet available when CenPEG asked for it
and, subsequently, that the review had to be done, apparently for security reason,
"under a controlled environment." The elections had passed and that reason is already
stale.

WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the
COMELEC to make the source codes for the AES technologies it selected for
implementation pursuant to R.A. 9369 immediately available to CenPEG and all other
interested political parties or groups for independent review.

G.R. No. 200903               July 22, 2014

KALIPUNAN NG DAMAY ANG MAHIBIRAP, INC., represented by its Vice-

President, CARLITO BADION, CORAZON DE JESUS HOMEOWNERS
ASSOCIATION, represented by its President, ARNOLD REPIQUE, FERNANDO
SEVILLA as President of Samahang Pamata sa Kapatirang Kr.istiyano,
ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, and DELIA FRA
YRES, Petitioners,
vs.
JESSIE ROBREDO, in his capacity as Secretary, Department of Interior and Local
Government, Hon. GUIA GOMEZ, in her capacity as MAYOR OF THE CITY. OF
SAN JUAN, Hon. HERBERT BAUTISTA, in his capacity as the MAYOR OF
QUEZON CITY, Hon. JOHN REY TIANGCO, in his capacity as MAYOR OF
NAVOTAS CITY, and the GENERAL MANAGER of the NATIONAL HOUSING
AUTHORITY, Respondents.

DECISION

BRION, J.:

This is a petition for prohibition and mandamus to enjoin the public respondents from
evicting the individual petitioners as well as the petitionerassociations’ members from
their dwellings in the cities of San Juan, Navotas and Quezon without any court order,
and to compel the respondents to afford them judicial process prior to evictions and
demolitions. The petition primarily seeks to declare asunconstitutional Section 28 (a)
and (b) of Republic Act No. 7279 (RA 7279), otherwise known as Urban Development
Housing Act, which authorizes evictions and demolitions under certain circumstances
without any court order.

The Factual Antecedents

The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon de

Jesus Homeowners’ Association as well as the individual petitioners, Fernando Sevilla,
Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol and Delia Frayres, were/are occupying
parcels of land owned by and located in the cities of San Juan, Navotas and Quezon
(collectively, the LGUs1). These LGUs sent the petitioners notices of eviction and
demolition pursuant to Section 28 (a) and (b) of RA 7279 in order to give way to the
implementation and construction of infrastructure projects 2 in the areas illegally
occupied by the petitioners.3

Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions without any court
order when: (1) persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places
suchas sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy
areas where government infrastructure projects with available funding are about to be
implemented.

The Petition

On March 23, 2012, the petitionersdirectly filed a petition for prohibition and mandamus
before the Court, seeking to compel the Secretary of Interior and Local Government, et
al. (the public respondents)to first secure an eviction and/or demolition order from the
court prior to their implementation of Section 28 (a) and (b) of RA 7279.

The petitioners justify their directrecourse before this Court by generally averring that
they have no plain, speedy and adequate remedy in the ordinary course of law. 4 They
also posit that the respondents gravely abused their discretion in implementing Section
28 (a) and (b) of RA 7279 which are patently unconstitutional. They likewise insist that
they stand to be directly injured by the respondents’threats of evictions and demolitions.
In the alternative, they contend that the transcendental public importance of the issues
raised in this case clothes them with legal standing. 5

The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their constitutional
right to due process because they warrant evictions and demolitions without any court
order. Theypoint out that Section 6, Article 3 of the 1987 Constitution expressly prohibits
the impairment of liberty of abode unless there is a court order. Moreover, Section 28
(a) and (b) of RA 7279 violate their right to adequate housing, a universal right
recognized in Article 25 of Universal Declaration ofHuman Rights and Section 2 (a) of
RA 7279. The petitioners further complain that the respondents had previously
conducted evictions and demolitions in a violent manner, contrary to Section 10, Article
13 of the 1987 Constitution.6

The Respondents’ Case

A. The Position of the Mayor of Navotas

The Mayor of Navotas prays for the outright dismissal of the petition for its serious
procedural defects. First, the petitioners ignored the hierarchy of courts when they
directly filed a Rule 65 petition before the Court. 7 Second, the petitioners incorrectly
availed themselves of a petition for prohibition and mandamus in assailing the
constitutionality of Section 28 (a) and (b) of RA 7279. According to the Mayor of
Navotas, the office of a writ of prohibition is merely to prevent the public respondent’s
usurpation of power or improper assumption of jurisdiction. On the other hand, a writ of
mandamus only commands the public respondent to perform his ministerial functions.
Third, the petitioners failed to particularly state the grave abuse of discretion that the
Mayor of Navotas allegedly committed. Fourth, the petition does not present any
justiciable controversy since the City of Navotas had already successfully evicted the
petitioners in San Roque, Navotas on November 28, 2011. Fifth, the petition was filed
out of time since the petitioners were personally notified of the intended eviction and
demolition on September 23, 2011.8

The Mayor argues that Section 10, Article 13 of the 1987 Constitution allows evictions
and demolitions to beconducted even without a court order provided they are done in
accordance withthe law and in a just and humane manner. According to him, RA 7279
isprecisely the law referred to by Section 10, Article 13 of the 1987 Constitution. The
Mayor also disputes the petitioners’ claim that RA 7279 does notafford the informal
settlers procedural due process prior to evictions and demolitions. He points out that
Section 28 of RA 7279 and its implementing rules and regulations (IRR) mandate that
the affected persons or entities shall be given notice at least thirty (30) days prior to the
date of eviction or demolition. The respondents are likewise required to consult with the
duly designated representatives of the affected families and communities with respect to
their relocation. He further asserts that his faithful implementation of Section 28 (a) and
(b) of RA 7279, which are presumed to be constitutional, cannotbe equated to grave
abuse of discretion. Lastly, the Mayor of Navotas insists that the petitioners’ invocation
of their right to freely choose their abode is misplaced since they have no vested right to
occupy properties that they do not own.9

B. The Position of the Mayor of San Juan

The Mayor of San Juan similarly argues that the petitioners improperly availed
themselves of a petition for prohibition and mandamus before the Court. She contends
thatshe performed neither judicial nor ministerial functions in implementing RA 7279, the
enabling law of Section 10, Article 13 of the 1987 Constitution. She also maintains that
the petition has been rendered moot and academic by the successful eviction of some
of the petitioners in Pinaglabanan, Corazon de Jesus, San Juan. The Mayor of San
Juan further stresses that Section 28 (a) and (b) of RA 7279 already lay down the
procedure in evicting informal settlers in a just and humane manner. 10 C. The Position of
the Mayor of Quezon

The Mayor of Quezon City holds that the petitioners’ premature invocation of the Court’s
power of judicial review and their violation of the principle of hierarchy of courts are fatal
to their cause of action. Moreover, the petitioners failed to substantiate the material
allegations in the petition. He additionally argues that his faithful implementation of RA
7279, which the legislature enacted inthe exercise of police power, does not amount to
grave abuse of discretion.11

D. The Position of the Secretary ofInterior and Local Government

and the General Manager of the National Housing Authority

The Secretary of Interior and Local Government and the National Housing Authority
(NHA)General Manager adopt the Mayor of Navotas’ position that the petition is
procedurally infirm. They further argue that the liberty of abode is not illimitable and
does not include the right to encroach upon other person properties. They also reiterate
that Section 28 of RA 7279 provides sufficient safeguards in ensuring that evictions and
demolitions are carried out in a just and humane manner. 12

The Issues

This case presents to us the following issues:

(1) Whether the petition should be dismissed for serious procedural defects; and

(a) Whether the petitioners violated the principle of hierarchy of courts;

(b) Whether the petitioners correctlyavailed themselves of a petition for

prohibition and mandamus;

(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6,
Article 3 of the 1987 Constitution.
 The Court’s Ruling

We dismiss the petition.

The petitioners violated the principle of hierarchy of courts when they directly filed the
petition before the Court.

The petitioners have unduly disregarded the hierarchy of courts by coming directly to
the Court withtheir petition for prohibition and mandamus. The petitioners appear to
have forgotten that the Supreme Court is a court of last resort, not a court offirst
instance. The hierarchy of courts should serve as a general determinant of the
appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does not
give the petitioners the unrestricted freedom of choice of forum. By directly filing Rule 65
petitions before us, the petitioners have unduly taxed the Court’s time and attention
which are better devoted to matters within our exclusive jurisdiction. Worse, the
petitioners only contributed to the overcrowding of the Court's docket. We also wish to
emphasize that the trial court is better equipped to resolve cases ofthis nature since this
Court is not a trier of facts and does not normallyundertake an examination of the
contending parties’ evidence.13

The petitioners wrongly availed themselves of a petition for prohibition and mandamus.

We cannot also ignore the petitioners’ glaring error in using a petition for prohibition and
mandamus in the current case.

The petitioners seem to have forgotten that a writ of prohibition only lies against the
tribunal, corporation, board, officer or person’s exercise of judicial, quasi-judicial or
ministerial functions.14 We issue a writ of prohibition to afford the aggrieved party a relief
against the respondent’s usurpation or grave abuse of jurisdiction or power. 15

On the other hand, a petition for mandamus is merely directed against the tribunal,
corporation, board, officer, or person who unlawfully neglects the performance of an act
which the law enjoins as a duty resulting from an office, trust or station or who
unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled.16 Thus, a writ of mandamus will only issue to compel an officer to
perform a ministerial duty. It will not control a public officer’s exercise of discretion as
where the law imposes upon him the duty to exercisehis judgment in reference to any
manner in which he is required to actprecisely because it is his judgment that is to be
exercised, not that of the court.17

In the present case, the petitionersseek to prohibit the respondents from implementing
Section 28 (a) and (b) of RA 7279 without a prior court order of eviction and/or
demolition. In relation to this, paragraph 1, Section 28 of RA 7279 provides:
Sec. 28. Eviction and Demolition. — Eviction or demolition as a practice shall be
discouraged. Eviction or demolition, however, maybe allowed under the following
situations:

(a) When persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways, and other public
placessuch as sidewalks, roads, parks, and playgrounds;

(b) When government infrastructure projects with available funding are about to
be implemented;or

(c) When there is a court order for eviction and demolition. (emphasis and
underline ours)

A reading of this provision clearly shows that the acts complained of are beyond the
scope of a petition for prohibition and mandamus. The use of the permissive word "may"
implies that the public respondents have discretion when their duty to execute evictions
and/or demolitions shall be performed. Where the words of a statute are clear, plain,
and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation.18

Consequently, the time when the public respondents shall carry out evictions and/or
demolitions under Section 28 (a), (b), and (c) of RA 7279 is merely discretionary, and
not ministerial, judicial or quasi-judicial. The duty is discretionary if the law imposesa
duty upon a public officer and gives him the right to decide when the duty shall be
performed.

In contrast, a ministerial duty is one which an officer or tribunal performs in a given state
of facts,in a prescribedmanner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the
act done.19

On the other hand, both judicial and quasi-judicial functions involve the determination of
what the law is, and what the legal rights of the contending parties are, with respect
tothe matter in controversy and, on the basis thereof and the facts obtaining, the
adjudication of their respective rights. 20

The resolution of the constitutionality of Section 28 (a) and (b) of RA 7279 is not the lis
motaof the case.

Even if we treat the present petition as one for certiorari since it assails the
constitutionality of Section 28 (a) and (b) of RA 7279, the petition must necessarily fail
for failure to show the essential requisites that would warrant the Court’s exercise of
judicial review. It is a rule firmly entrenched in our jurisprudence thatthe courts will not
determine the constitutionality of a law unless the following requisites are present: (1)
the existence of an actual case or controversy involving a conflict of legal rights
susceptible of judicial determination; (2) the existence of personal and substantial
interest on the part ofthe party raising the constitutional question; (3) recourse to judicial
review is made at the earliest opportunity; and (4) the resolution of the constitutional
question must be necessary to the decision of the case. 21

Save for the petition pertaining to the City of Quezon’s threat of eviction and demolition,
this case no longer presents a justiciable controversy with respect to the Mayors of
Navotas and San Juan. We take note of the Comments of these Mayors who alleged
that they had already successfully evicted the concerned petitioners in their respective
cities at the time of the filing of the petition.

What further constrains this Court from touching on the issue of constitutionality is the
fact that this issue is not the lis mota of this case. Lis motaliterally means "the cause of
the suit or action"; it is rooted in the principle of separation of powers and is thus merely
an offshoot of the presumption of validity accorded the executive and legislative acts of
our coequal branches of the government.

This means that the petitioner who claims the unconstitutionality of a law has the burden
of showing first that the case cannot be resolved unless the disposition of the
constitutional question that he raised is unavoidable. If there is some other ground upon
which the court may rest its judgment, that course will be adopted and the question of
constitutionality should be avoided. 22 Thus, to justify the nullification ofa law, there must
be a clear and unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative.23

We carefully read the petitions and we conclude that they fail to compellingly show the
necessity ofexamining the constitutionality of Section 28 (a) and (b) of RA 7279 in the
light of Sections 1 and 6, Article 3 of the 1987 Constitution. 24 In Magkalas v. NHA,25 this
Court had already ruled on the validity of evictions and demolitions without any court
order. In that case, we affirmed the validity ofSection 2 of Presidential Decree No. 1472
which authorizes the NHA to summarily eject all informal settlers’ colonies on
government resettlement projects as well as any illegal occupant in any homelot,
apartment or dwelling unit owned or administered by the NHA. In that case, we held that
Caridad Magkalas’ illegal possession of the property should not hinder the NHA’s
development of Bagong Barrio Urban Bliss Project. We further stated that demolitions
and evictions may be validly carried out even without a judicial order in the following
instances: (1) when the property involved is an expropriated property xxx pursuant to
Section 1 of P.D. No. 1315;

(2) when there are squatters on government resettlement projects and illegal
occupants in any homelot, apartment or dwelling unit owned or administered by
the NHA pursuant to Section 2 of P.D. No. 1472;

(3) when persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways and other public
 places such as sidewalks, roads, parks and playgrounds, pursuant toSection
28(a) of R.A. No. 7279;

(4) when government infrastructure projects with available funding are about to
be implemented pursuant to Section 28(b) of R.A. No. 7279. 26 (emphasis ours)

We note that Section 10, Article13 of the 1987 Constitution provides that urban or rural
poor dwellers shall not be evicted nor their dwelling demolished, except in accordance
withlaw and in a just and humane manner. Paragraph 1, Section 28 of RA 7279 allows
summary evictions and demolition in cases where persons orentities occupy danger
areas and when persons or entities occupy areas where government infrastructure
projects with available funding are about to be implemented.

To ensure that evictions and demolitions are conducted in a just and humane manner,
paragraph 2, Section 28 of RA 7279 commands the public respondents to comply with
the following prescribed procedure in executing eviction and/or demolition orders:

In the execution of eviction or demolition orders involving underprivileged and homeless

citizens, the following shall be mandatory:

(1) Notice upon the effected persons orentities at least thirty (30) days prior to the
date of eviction or demolition;

(2) Adequate consultations on the matter of settlement with the duly designated
representatives of the families to be resettled and the affected communities in the
areas where they are to be relocated;

(3) Presence of local government officials or their representatives during eviction

or demolition;

(4) Proper identification of all persons taking part in the demolition;

(5) Execution of eviction or demolition only during regular office hours from
Mondays to Fridays and during good weather, unless the affected families
consent otherwise;

(6) No use of heavy equipment for demolition except for structures that are
permanent and of concrete materials;

(7) Proper uniforms for members ofthe Philippine National Police who shall
occupy the first line of law enforcement and observe proper disturbance control
procedures; and

(8) Adequate relocation, whether temporary or permanent: Provided, however,

That in cases of eviction and demolition pursuant to a court order involving
underprivileged and homeless citizens, relocation shall be undertaken by the
 local government unit concerned and the National Housing Authority with the
assistance of other government agencies within forty-five (45) days from service
of notice of final judgment by the court, after which period the said order shall be
executed: Provided, further, That should relocation not be possible within the
said period, financial assistance in the amount equivalent to the prevailing
minimum daily wage multiplied by sixty (60) days shall be extended to the
affected families by the local government unit concerned.

This Department of the Interior and Local Government and the Housing and Urban
Development Coordinating Council shall jointly promulgate the necessary rules and
regulations to carry out the above provision.

Lastly, the petitioners failed to substantiate their allegations that the public respondents
gravely abused their discretion in implementing Section 28 (a) and (b) of RA 7279.
Instead, theymerely imputed jurisdictional abuse to the public respondents through
general averments in their pleading, but without any basis to support their claim.

This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court.1âwphi1 To the point of being repetitive, we (xxx source text missing)

Lastly, the petitioners failed to substantiate their allegations that the public respondents
gravely abused their discretion in implementing Section 28 (a) and (b) of RA 7279.
Instead, they merely imputed jurisdictional abuse to the public respondents through
general averments in their pleading, but without any basis to support their claim.

This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court. To the point of being repetitive, we emphasize that we are not trier of
facts and this applies with greater force to Rule 65 petitions which are original and
independent actions. To justify judicial intrusion into what is fundamentally the domain
of the executive department, the petitioners must establish facts that are necessarily
linked to the jurisdictional problem they presented in this case, i.e., whether the public
respondents exercised their power in an arbitrary and despotic manner by reason of
passion or personal hostility in implementing Section 28 (a) and (b) of RA 7279.

Since the petitioners failed to establish that the public respondents' alleged abuse of
discretion was so patent and gross as to amount to an evasion or to a unilateral refusal
to perform the duty enjoined or to act in contemplation of law, this petition must
necessarily fail.27

WHEREFORE, premises considered, we hereby DISMISS the petition for its serious
procedural defects. No costs.

A.M. No. 1928 August 3, 1978

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A.

EDILION (IBP Administrative Case No. MDD-1)
 RESOLUTION

CASTRO, C.J.:

The respondent Marcial A. Edillon is a duly licensed practicing attorney in the

Philippines.

On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of
Governors unanimously adopted Resolution No. 75-65 in Administrative Case No.
MDD-1 (In the Matter of the Membership Dues Delinquency of Atty. Marcial A. Edillon)
recommending to the Court the removal of the name of the respondent from its Roll of
Attorneys for "stubborn refusal to pay his membership dues" to the IBP since the latter's
constitution notwithstanding due notice.

On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the
said resolution to the Court for consideration and approval, pursuant to paragraph 2,
Section 24, Article III of the By-Laws of the IBP, which reads:

.... Should the delinquency further continue until the following June 29, the
Board shall promptly inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem appropriate, including
a recommendation to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the action taken shall
be sent by registered mail to the member and to the Secretary of the
Chapter concerned.

On January 27, 1976, the Court required the respondent to comment on the resolution
and letter adverted to above; he submitted his comment on February 23, 1976,
reiterating his refusal to pay the membership fees due from him.

On March 2, 1976, the Court required the IBP President and the IBP Board of
Governors to reply to Edillon's comment: on March 24, 1976, they submitted a joint
reply.

Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties
were required to submit memoranda in amplification of their oral arguments. The matter
was thenceforth submitted for resolution.

At the threshold, a painstaking scrutiny of the respondent's pleadings would show that
the propriety and necessity of the integration of the Bar of the Philippines are in essence
conceded. The respondent, however, objects to particular features of Rule of Court 139-
A (hereinafter referred to as the Court Rule) 1 — in accordance with which the Bar of the
Philippines was integrated — and to the provisions of par. 2, Section 24, Article III, of
the IBP By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the Supreme Court the
removal of a delinquent member's name from the Roll of Attorneys is found in par. 2
Section 24, Article Ill of the IBP By-Laws (supra), whereas the authority of the Court to
issue the order applied for is found in Section 10 of the Court Rule, which reads:

SEC. 10. Effect of non-payment of dues. — Subject to the provisions of

Section 12 of this Rule, default in the payment of annual dues for six
months shall warrant suspension of membership in the Integrated Bar,
and default in such payment for one year shall be a ground for the
removal of the name of the delinquent member from the Roll of Attorneys.

The all-encompassing, all-inclusive scope of membership in the IBP is stated in these

words of the Court Rule:

SECTION 1. Organization. — There is hereby organized an official

national body to be known as the 'Integrated Bar of the Philippines,'
composed of all persons whose names now appear or may hereafter be
included in the Roll of Attorneys of the Supreme Court.

The obligation to pay membership dues is couched in the following words of the Court
Rule:

SEC. 9. Membership dues. Every member of the Integrated Bar shall pay
such annual dues as the Board of Governors shall determine with the
approval of the Supreme Court. ...

The core of the respondent's arguments is that the above provisions constitute an
invasion of his constitutional rights in the sense that he is being compelled, as a pre-
condition to maintaining his status as a lawyer in good standing, to be a member of the
IBP and to pay the corresponding dues, and that as a consequence of this compelled
financial support of the said organization to which he is admittedly personally
antagonistic, he is being deprived of the rights to liberty and property guaranteed to him
by the Constitution. Hence, the respondent concludes, the above provisions of the Court
Rule and of the IBP By-Laws are void and of no legal force and effect.

The respondent similarly questions the jurisdiction of the Court to strike his name from
the Roll of Attorneys, contending that the said matter is not among the justiciable cases
triable by the Court but is rather of an "administrative nature pertaining to an
administrative body."

The case at bar is not the first one that has reached the Court relating to constitutional
issues that inevitably and inextricably come up to the surface whenever attempts are
made to regulate the practice of law, define the conditions of such practice, or revoke
the license granted for the exercise of the legal profession.
The matters here complained of are the very same issues raised in a previous case
before the Court, entitled "Administrative Case No. 526, In the Matter of the Petition for
the Integration of the Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The
Court exhaustively considered all these matters in that case in its Resolution ordaining
the integration of the Bar of the Philippines, promulgated on January 9, 1973. The Court
there made the unanimous pronouncement that it was

... fully convinced, after a thoroughgoing conscientious study of all the

arguments adduced in Adm. Case No. 526 and the authoritative materials
and the mass of factual data contained in the exhaustive Report of the
Commission on Bar Integration, that the integration of the Philippine Bar is
'perfectly constitutional and legally unobjectionable'. ...

Be that as it may, we now restate briefly the posture of the Court.

An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as

distinguished from bar associations organized by individual lawyers themselves,
membership in which is voluntary. Integration of the Bar is essentially a process by
which every member of the Bar is afforded an opportunity to do his share in carrying out
the objectives of the Bar as well as obliged to bear his portion of its responsibilities.
Organized by or under the direction of the State, an integrated Bar is an official national
body of which all lawyers are required to be members. They are, therefore, subject to all
the rules prescribed for the governance of the Bar, including the requirement of
payment of a reasonable annual fee for the effective discharge of the purposes of the
Bar, and adherence to a code of professional ethics or professional responsibility
breach of which constitutes sufficient reason for investigation by the Bar and, upon
proper cause appearing, a recommendation for discipline or disbarment of the offending
member. 2

The integration of the Philippine Bar was obviously dictated by overriding considerations
of public interest and public welfare to such an extent as more than constitutionally and
legally justifies the restrictions that integration imposes upon the personal interests and
personal convenience of individual lawyers. 3

Apropos to the above, it must be stressed that all legislation directing the integration of
the Bar have been uniformly and universally sustained as a valid exercise of the police
power over an important profession. The practice of law is not a vested right but a
privilege, a privilege moreover clothed with public interest because a lawyer owes
substantial duties not only to his client, but also to his brethren in the profession, to the
courts, and to the nation, and takes part in one of the most important functions of the
State — the administration of justice — as an officer of the court. 4 The practice of law
being clothed with public interest, the holder of this privilege must submit to a degree of
control for the common good, to the extent of the interest he has created. As the U. S.
Supreme Court through Mr. Justice Roberts explained, the expression "affected with a
public interest" is the equivalent of "subject to the exercise of the police power" (Nebbia
vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme
Court to "adopt rules of court to effect the integration of the Philippine Bar under such
conditions as it shall see fit," it did so in the exercise of the paramount police power of
the State. The Act's avowal is to "raise the standards of the legal profession, improve
the administration of justice, and enable the Bar to discharge its public responsibility
more effectively." Hence, the Congress in enacting such Act, the Court in ordaining the
integration of the Bar through its Resolution promulgated on January 9, 1973, and the
President of the Philippines in decreeing the constitution of the IBP into a body
corporate through Presidential Decree No. 181 dated May 4, 1973, were prompted by
fundamental considerations of public welfare and motivated by a desire to meet the
demands of pressing public necessity.

The State, in order to promote the general welfare, may interfere with and regulate
personal liberty, property and occupations. Persons and property may be subjected to
restraints and burdens in order to secure the general prosperity and welfare of the State
(U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes, "Salus populi est
supreme lex." The public welfare is the supreme law. To this fundamental principle of
government the rights of individuals are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to prevail over authority because
then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an
undoubted power of the State to restrain some individuals from all freedom, and all
individuals from some freedom.

But the most compelling argument sustaining the constitutionality and validity of Bar
integration in the Philippines is the explicit unequivocal grant of precise power to the
Supreme Court by Section 5 (5) of Article X of the 1973 Constitution of the Philippines,
which reads:

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice, and pro. procedure in

all courts, and the admission to the practice of law and the integration of
the Bar ...,

and Section 1 of Republic Act No. 6397, which reads:

SECTION 1. Within two years from the approval of this Act, the Supreme
Court may adopt rules of Court to effect the integration of the Philippine
Bar under such conditions as it shall see fit in order to raise the standards
of the legal profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility more effectively.

Quite apart from the above, let it be stated that even without the enabling Act (Republic
Act No. 6397), and looking solely to the language of the provision of the Constitution
granting the Supreme Court the power "to promulgate rules concerning pleading,
practice and procedure in all courts, and the admission to the practice of law," it at once
becomes indubitable that this constitutional declaration vests the Supreme Court with
plenary power in all cases regarding the admission to and supervision of the practice of
law.

Thus, when the respondent Edillon entered upon the legal profession, his practice of
law and his exercise of the said profession, which affect the society at large, were (and
are) subject to the power of the body politic to require him to conform to such
regulations as might be established by the proper authorities for the common good,
even to the extent of interfering with some of his liberties. If he did not wish to submit
himself to such reasonable interference and regulation, he should not have clothed the
public with an interest in his concerns.

On this score alone, the case for the respondent must already fall.

The issues being of constitutional dimension, however, we now concisely deal with
them seriatim.

1. The first objection posed by the respondent is that the Court is without power to
compel him to become a member of the Integrated Bar of the Philippines, hence,
Section 1 of the Court Rule is unconstitutional for it impinges on his constitutional right
of freedom to associate (and not to associate). Our answer is: To compel a lawyer to be
a member of the Integrated Bar is not violative of his constitutional freedom to
associate. 6

Integration does not make a lawyer a member of any group of which he is not already a
member. He became a member of the Bar when he passed the Bar examinations. 7 All
that integration actually does is to provide an official national organization for the well-
defined but unorganized and incohesive group of which every lawyer is a ready a
member. 8

Bar integration does not compel the lawyer to associate with anyone. He is free to
attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote
in its elections as he chooses. The only compulsion to which he is subjected is the
payment of annual dues. The Supreme Court, in order to further the State's legitimate
interest in elevating the quality of professional legal services, may require that the cost
of improving the profession in this fashion be shared by the subjects and beneficiaries
of the regulatory program — the lawyers.9

Assuming that the questioned provision does in a sense compel a lawyer to be a

member of the Integrated Bar, such compulsion is justified as an exercise of the police
power of the State. 10

2. The second issue posed by the respondent is that the provision of the Court Rule
requiring payment of a membership fee is void. We see nothing in the Constitution that
prohibits the Court, under its constitutional power and duty to promulgate rules
concerning the admission to the practice of law and the integration of the Philippine Bar
(Article X, Section 5 of the 1973 Constitution) — which power the respondent
acknowledges — from requiring members of a privileged class, such as lawyers are, to
pay a reasonable fee toward defraying the expenses of regulation of the profession to
which they belong. It is quite apparent that the fee is indeed imposed as a regulatory
measure, designed to raise funds for carrying out the objectives and purposes of
integration. 11

3. The respondent further argues that the enforcement of the penalty provisions would
amount to a deprivation of property without due process and hence infringes on one of
his constitutional rights. Whether the practice of law is a property right, in the sense of
its being one that entitles the holder of a license to practice a profession, we do not here
pause to consider at length, as it clear that under the police power of the State, and
under the necessary powers granted to the Court to perpetuate its existence, the
respondent's right to practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose the fee as a
regulatory measure is recognize, then a penalty designed to enforce its payment, which
penalty may be avoided altogether by payment, is not void as unreasonable or
arbitrary. 12

But we must here emphasize that the practice of law is not a property right but a mere
privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact
compliance with the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike
the name of a lawyer from its Roll of Attorneys, it is sufficient to state that the matters of
admission, suspension, disbarment and reinstatement of lawyers and their regulation
and supervision have been and are indisputably recognized as inherent judicial
functions and responsibilities, and the authorities holding such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar
Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the
court, sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the
conduct and qualifications of its officers does not depend upon constitutional or
statutory grounds. It is a power which is inherent in this court as a court — appropriate,
indeed necessary, to the proper administration of justice ... the argument that this is an
arbitrary power which the court is arrogating to itself or accepting from the legislative
likewise misconceives the nature of the duty. It has limitations no less real because they
are inherent. It is an unpleasant task to sit in judgment upon a brother member of the
Bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be
assumed only with a determination to uphold the Ideals and traditions of an honorable
profession and to protect the public from overreaching and fraud. The very burden of
the duty is itself a guaranty that the power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly
granted to the Court the power to "Promulgate rules concerning pleading, practice ...
and the admission to the practice of law and the integration of the Bar ... (Article X, Sec.
5(5) the power to pass upon the fitness of the respondent to remain a member of the
legal profession is indeed undoubtedly vested in the Court.

We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-
Laws of the Integrated Bar of the Philippines complained of are neither unconstitutional
nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the Court that the
respondent Marcial A. Edillon should be as he is hereby disbarred, and his name is
hereby ordered stricken from the Roll of Attorneys of the Court.

G.R. No. L-62270 May 21, 1984

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO

LEONERO, and JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of
the National Capital Region of the Ministry of Education, Culture and Sports, THE
GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR MIJARES, in his
capacity as the President of the Gregorio Araneta University Foundation,
GONZALO DEL ROSARIO, in his capacity as the Director for Academic Affairs of
the Gregorio Araneta University Foundation; TOMAS B. MESINA, in his capacity
as the Dean of Student Affairs of the Gregorio Araneta University Foundation;
ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security
Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA
AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as
members of the Ad Hoc Committee of the Gregorio Araneta University
Foundation, respondents.

Honesto N. Salcedo for petitioners.

The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.:

The failure to accord respect to the constitutional rights of freedom of peaceable

assembly and free speech is the grievance alleged by petitioners, students of the
Gregorio Araneta University Foundation, in this certiorari, prohibition and mandamus
proceeding. The principal respondents are Anastacio D. Ramento, Director of the
National Capital Region of the Ministry of Education, Culture and Sports and the
Gregorio Araneta University Foundation. 1 The nullification of the decision of
respondent Ramento affirming the action taken by respondent Gregorio Araneta
University Foundation finding petitioners guilty of illegal assembly and suspending them
is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme Student
Council of respondent University. They sought and were granted by tile school
authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982.
Pursuant to such permit, along with other students, they held a general assembly at the
Veterinary Medicine and Animal Science basketball court (VMAS), the place indicated in
such permit, not in the basketball court as therein stated but at the second floor lobby.
At such gathering they manifested in vehement and vigorous language their opposition
to the proposed merger of the Institute of Animal Science with the Institute of
Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science
Building and continued their rally. It was outside the area covered by their permit. They
continued their demonstration, giving utterance to language severely critical of the
University authorities and using megaphones in the process. There was, as a result,
disturbance of the classes being held. Also, the non-academic employees, within
hearing distance, stopped their work because of the noise created. They were asked to
explain on the same day why they should not be held liable for holding an illegal
assembly. Then on September 9, 1982, they were formed through a memorandum that
they were under preventive suspension for their failure to explain the holding of an
illegal assembly in front of the Life Science Building. The validity thereof was challenged
by petitioners both before the Court of First Instance of Rizal in a petition for mandamus
with damages against private respondents 2 and before the Ministry of Education,
Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the
National Capital Region, found petitioners guilty of the charge of having violated par.
146(c) of the Manual for Private Schools more specifically their holding of an illegal
assembly which was characterized by the violation of the permit granted resulting in the
disturbance of classes and oral defamation. The penalty was suspension for one
academic year. Hence this petition.

On November 16, 1982, this Court issued the following resolution: "Acting on the
urgent ex-parte motion for the immediate issuance of a temporary mandatory order filed
by counsel for petitioners, dated November 12, 1982, the Court Resolved to ISSUE
A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person or
persons acting in their place or stead from enforcing the order of the Ministry of'
Education and Culture dated October 20, 1982 finding the petitioners guilty of the
charges against them and suspending them for one (1) academic year with a stern
warning that a commission of the same or another offense will be dealt with utmost
severity, effective as of this date and continuing until otherwise ordered by this Court,
thus allowing them to enroll, if so minded. 3

Both public and private respondents submitted their comments. Private respondents
prayed for the dismissal of the petition "for lack of factual and legal basis and likewise
[prayed] for the lifting of the temporary restraining order dated November 16,
1982." 4 Public respondent Ramento, on the other hand, through the Office of the
Solicitor General, prayed for the dismissal of the petition based on the following
conclusion: "Consequently, it is respectfully submitted that respondent Director of the
MECS did not commit any error, much less abused his discretion, when he affirmed the
decision of respondent University finding petitioners guilty of violations of the provisions
of the Manual of Regulations for Private Schools and the Revised Student's Code of
Discipline .and ordering their suspension for one (1) academic school year. However,
since said suspension has not been enforced except only briefly, thereby enabling
petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing
petitioners Lee and Jalos to continue their schooling, if they so desire, this proceeding is
now moot and academic. 5

With the submission of such comments considered as the answers of public and private
respondents, the case was ready for decision.

This petition may be considered moot and academic if viewed solely from the fact that
by virtue of the temporary restraining order issued by this Court petitioners were allowed
to enroll in the ensuing semester, with three of them doing so and with the other two
equally entitled to do so. Moreover, there is the added circumstance of more than a year
having passed since October 20, 1982 when respondent Ramento issued the
challenged decision suspending them for one year. Nonetheless, with its validity having
been put in issue, for being violative of the constitutional rights of freedom of peaceable
assembly and free speech, there is need to pass squarely on the question raised.

This Court accordingly rules that respect for the constitutional rights of peaceable
assembly and free speech calls for the setting aside of the decision of respondent
Ramento, the penalty imposed being unduly severe. It is true that petitioners held the
rally at a place other than that specified in the permit and continued it longer than the
time allowed. Undeniably too, they did disturb the classes and caused the work of the
non-academic personnel to be left undone. Such undesirable consequence could have
been avoided by their holding the assembly in the basketball court as indicated in the
permit. Nonetheless, suspending them for one year is out of proportion to their misdeed.
The petition must be granted and the decision of respondent Ramento nullified, a much
lesser penalty being appropriate.

1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right
to freedom of peaceable assembly carries with it the implication that the right to free
speech has likewise been disregarded. Both are embraced in the concept of freedom of
expression which is Identified with the liberty to discuss publicly and truthfully, any
matter of public interest without censorship or punishment and which "is not to be
limited, much less denied, except on a showing ... of a clear and present danger of a
substantive evil that the state has a right to prevent." 7

2. In the above case, a permit was sought to hold a peaceful march and rally from the
Luneta public park to the gates of the united States Embassy, hardly two blocks away,
where in an open space of public property, a short program would be held. Necessarily
then, the question of the use of a public park and of the streets leading to the United
States Embassy was before this Court. We held that streets and parks have
immemorially been held in trust for the use of the public and have been used for
purposes of assembly to communicate thoughts between citizens and to discuss public
issues. 8

3. The situation here is different. The assembly was to be held not in a public place but
in private premises, property of respondent University. There is in the Reyes opinion as
part of the summary this relevant excerpt: "The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent of the owner
or the one entitled to its legal possession is required." 9 Petitioners did seek such
consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a
permit granted to them by the school administration, the Supreme Student Council
where your petitioners are among the officers, held a General Assembly at the VMAS
basketball court of the respondent university." 10 There was an express admission in
the Comment of private respondent University as to a permit having been granted for
petitioners to hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the penalty
imposed, there was an infringement of the right to peaceable assembly and its cognate
right of free speech.

4. Petitioners invoke their rights to peaceable assembly and free speech. They are
entitled to do so. They enjoy like the rest of the citizens the freedom to express their
views and communicate their thoughts to those disposed to listen in gatherings such as
was held in this case. They do not, to borrow from the opinion of Justice Fortas in
Tinker v. Des Moines Community School District, 12 "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate." 13 While, therefore, the
authority of educational institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. On a more specific level
there is persuasive force to this formulation in the Fortas opinion: "The principal use to
which the schools are dedicated is to accommodate students during prescribed hours
for the purpose of certain types of activities. Among those activities is personal
intercommunication among the students. This is not only an inevitable part of the
process of attending school; it is also an important part of the educational process. A
student's rights, therefore, do not embrace merely the classroom hours. When he is in
the cafeteria, or on the playing field, or on the campus during the authorized hours, he
may express his opinions, even on controversial subjects like the conflict in Vietnam, if
he does so without 'materially and substantially interfer[ing] with the requirements of
appropriate discipline in the operation of the school' and without colliding with the rights
of others. ... But conduct by the student, in class or out of it, which for any reason —
whether it stems from time, place, or type of behavior — materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech." 14

5. As tested by such a standard, what is the verdict on the complaint of petitioners that
there was a disregard of their constitutional rights to peaceable assembly and free
speech. It must be in their favor, but subject to qualification in view of their continuing
their demonstration in a place other than that specified in the permit for a longer period
and their making use of megaphones therein, resulting in the disruption of classes and
the stoppage of work by the non-academic personnel in the vicinity of such assembly.

6. Objection is made by private respondents to the tenor of the speeches by the student
leaders. That there would be a vigorous presentation of views opposed to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture was to be
expected. There was no concealment of the fact that they were against such a move as
it confronted them with a serious problem (iisang malaking suliranin.") 15 They believed
that such a merger would result in the increase in tuition fees, an additional headache
for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the
course of such demonstration, with an enthusiastic audience goading them on,
utterances, extremely critical, at times even vitriolic, were let loose, that is quite
understandable. Student leaders are hardly the timid, diffident types. They are likely to
be assertive and dogmatic. They would be ineffective if during a rally they speak in the
guarded and judicious language of the academe. At any rate, even a sympathetic
audience is not disposed to accord full credence to their fiery exhortations. They take
into account the excitement of the occasion, the propensity of speakers to exaggerate,
the exuberance of youth, They may give the speakers the benefit of their applause, but
with the activity taking place in the school premises and during the daytime, no clear
and present danger of public disorder is discernible. This is without prejudice to the
taking of disciplinary action for conduct, which, to borrow from Tinker, "materially
disrupts classwork or involves substantial disorder or invasion of the rights of others."

7. Nor is this a novel approach to the issue raised by petitioners that they were denied
the right to peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the
facts disclosed that shortly before the municipal council of San Carlos, Occidental
Negros, started its session, some five hundred residents of the municipality assembled
near the municipal building, and, upon the opening of the session, a substantial number
of such persons barged into the council chamber, demanding that the municipal
treasurer, the municipal secretary, and the chief of police be dismissed, submitting at
the same time the proposed substitutes. The municipal council gave its conformity.
Such individuals were wholly unarmed except that a few carried canes; the crowd was
fairly orderly and well-behaved except in so far as their pressing into the council
chamber during a session of that body could be called disorder and misbehavior. It
turned out that the movement had its origin in religious differences. The defendant
Filomeno Apurado and many other participants were indicted and convicted of sedition
in that they allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the
opinion, correctly pointed out that "if the prosecution be permitted to seize upon every
instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities,
then the right to assemble and to petition for redress of grievances would become a
delusion and a snare and the attempt to exercise it on the most righteous occasion and
in the most peaceable manner would expose all those who took part therein to the
severest form of punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities." 18 The principle to be followed is
enunciated thus: "If instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor, but the utmost discretion must
be exercised in drawing the line between disorderly and seditious conduct and between
an essentially peaceable assembly and a tumultuous uprising." 19 A careful reading of
this decision is in order before private respondents attach, as they did in their
comments, a subversive character to the rally held by the students under the leadership
of petitioners.

8. It does not follow, however, that petitioners can be totally absolved for the events that
transpired. Admittedly, there was a violation of the terms of the permit. The rally was
held at a place other than that specified, in the second floor lobby, rather than the
basketball court, of the VMAS building of the University. Moreover, it was continued
longer than the period allowed. According to the decision of respondent Ramento, the
"concerted activity [referring to such assembly] went on until 5:30 p. m. 20 Private
respondents could thus, take disciplinary action. On those facts, however, an
admonition, even a censure-certainly not a suspension-could be the appropriate
penalty. Private respondents could and did take umbrage at the fact that in view of such
infraction considering the places where and the time when the demonstration took
place-there was a disruption of the classes and stoppage of work of the non-academic
personnel. They would not be unjustified then if they did take a much more serious view
of the matter. Even then a one-year period of suspension is much too severe. While the
discretion of both respondent University and respondent Ramento is recognized, the
rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of
proportionality between the offense connoted and the sanction imposed is not followed,
an element of arbitrariness intrudes. That would give rise to a due process question. To
avoid this constitutional objection, it is the holding of this Court that a one-week
suspension would be punishment enough.

9. One last matter. The objection was raised that petitioners failed to exhaust
administrative remedies. That is true, but hardly decisive. Here, a purely legal question
is presented. Such being the case, especially so where a decision on a question of law
is imperatively called for, and time being of the essence, this Court has invariably
viewed the issue as ripe for adjudication. What cannot be too sufficiently stressed is that
the constitutional rights to peaceable assembly and free speech are invoked by
petitioners. Moreover, there was, and very likely there will continue to be in the future,
militancy and assertiveness of students on issues that they consider of great
importance, whether concerning their welfare or the general public. That they have a
right to do as citizens entitled to all the protection in the Bill of Rights.

10. It would be most appropriate then, as was done in the case of Reyes v.
Bagatsing, 21 for this Court to lay down the principles for the guidance of school
authorities and students alike. The rights to peaceable assembly and free speech are
guaranteed students of educational institutions. Necessarily, their exercise to discuss
matters affecting their welfare or involving public interest is not to be subjected to
previous restraint or subsequent punishment unless there be a showing of a clear and
present danger to a substantive evil that the state, has a right to present. As a corollary,
the utmost leeway and scope is accorded the content of the placards displayed or
utterances made. The peaceable character of an assembly could be lost, however, by
an advocacy of disorder under the name of dissent, whatever grievances that may be
aired being susceptible to correction through the ways of the law. If the assembly is to
be held in school premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably. In granting such
permit, there may be conditions as to the time and place of the assembly to avoid
disruption of classes or stoppage of work of the non-academic personnel. Even if,
however, there be violations of its terms, the penalty incurred should not be
disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982 of
respondent Ramento imposing a one-year suspension is nullified and set aside. The
temporary restraining order issued by this Court in the resolution of November 18, 1982
is made permanent. As of that date, petitioners had been suspended for more than a
week. In that sense, the one-week penalty had been served. No costs.

G.R. No. 132088               June 28, 2000

EVERDINA ACOSTA, NOEMI ACOSTA, ELVIRA AMPARADO, REBECCA AQUINO,

ROBERTO ARCAYA, EVA ARCEO, JULIET ARELLANO, ANITA ASCANO, GRACE
AUSTRA, LUISA AVILES, SUSIE AW, VICTORIA BADILLO, SUSAN BALDEMOR,
ELISA BASA, NORY BATUIGAS, TERESITA BAUTISTA, SEGUNDINA BERMAS,
FERMINER BOCO, EVELYN BULAONG, SYLVA BULARIO, GILDA BOLOSAN,
JOSIE BUNGAY, ARCELI CABUSE, TERESA CACHO, ROSSANA CAJANDINEZ,
NELY CALPITO, OLIVIA CARDINES, THELMA CARINO, CORAZON CARRACEDO,
ELENITA CASAUAY, MARIETA CAULI, MARILOU CAYTON, VIRGINIA CHIAPOCO,
ALLEN CIPRIANO, MELINDA B. CONTRERAS, ZENAIDA CORPORAL, PRISCILLA
CORPUZ, LUZ COSIO, EMILIA CRUZ, CRISTINA DELA CRUZ, ROSALINA DELA
CRUZ, GRACE CUNANAN, EVELYN DE CASTRO, HAYDEE DE VALLE, CECILIA
DEL ROSARIO, GULLERMINA DE LA CRUZ, FRANCIS DINGIL, BELLA DY,
CORAZON ESTEBAL, LUZ FAJARDO, TERESA FRAGO, VIRGINIA GACHO,
SABINO GALES, MYRNA GALLEGO, MARILYN GARNA, NATIVIDAD GAVILAN,
LOLITA GAVINO, MARILOU GO, LETICIA GOMEZ, OLYMPIO GONZAGA, RUTH
GONZALES, REMEDIOS HAVOC, GREGORIA HERNANDEZ, OSCAR HIDALGO,
BIBIANO HUGO, RITA HUERTA, LOURDES HULIPAS, ROMEO IDOS, ERLINDA
ISLA, LITA ITALIA, MATIAS JABONETE, DIANA JIMENEZ, DOMINADOR
LABACLADO, ALMA LAGUIAN, MELCY LALU, REBECCA LAMALINAO, MARITA
LAMSEN, LOURDES ESTER LAREDO, TERESITA LATION, ROSALINA LEDESMA,
NORMA LECCIONES, NORMA LEYTE, CECILIA LINCOPINES, OFELIA LIZARDO,
VENILLA LOCSIN, ADELINA LORENZO, SATURNINA LORENZO, ALEJANDRA
MABAET, JULIETA MADRID, ERLINA MAGPAYO, ROLANDO MAGSINO, ERLINDA
MAILIG, FLORENDA MALAPAYA, CORAZON MALLEN, ESMERALDA MANALANG,
MERLE MANALO, ERLINDA MANEGA, SHIRLEY MANGAHAS, ELFRIDA
MARQUEZ, EFIGENIA MENEZ, NILDA NAVA, MERLY NERY, ROSAMINDA OBEN,
MELISSA OLAQUERRA, ENRIQUETA OLIVAR, DOLORES ORDINARIO, ESTRELLA
ORTEGA, ROSE ORPRECIO, AURORA OSTACO, ELVIRA PAMPANGA, NORMA
PAQUIZ, EVANGELINE PARDO, GLORIA PARMA, ERLINDA PASTRANA, LERMA
QUIRIT, MECELIN QUILANDRA, MEWLIN QUILLANORA, NATIVIDAD RAGUD,
ERLINDA RANTE, EUFEMIA RAMIREZ, JUDITHA RANESES, ULDARICO REJABA,
MELINA REJUSO, FELISA RENIDO, MILGROS REY, REDENTOR REYES,
RESALINA SAGUN, ZENAIDA SALAZAR, FE SALIMA, SHIRLEY SARAGON,
PURIFICACION SARI, ELVIRA SATUMBAGA, MARIBEY SEALMOY, EDITHA
SINJAY, TITA SILVINO, AURORA TOLENTINO, ESPERANZA URBIZTONDO,
SATURNINO YODICO, RODOLFO MARIANO, ALICIA MARINAY, SUSAN
MATANGA, PATRIA MATIAS, LOUELITA MAYUNA, LOLITA MERCADO, EUGENIA
MILLA, CRESENCIA MIRADOR, ERMA MORAL, RAQUEL MORALES, DOLORES
LAGRADA, petitioners,
vs.
HON. COURT OF APPEALS and THE CIVIL SERVICE COMMISSION and THE
SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondents.

DE LEON. JR., J.:

Before us is a petition for review on certiorari which seeks to set aside the

Decision 1 dated August 29, 1997 and Resolution2 dated January 7, 1998 of the Court of
Appeals in CA-G.R. SP No. 39878, affirming the Resolutions 3 of respondent Civil
Service Commission (CSC) finding petitioners guilty of conduct prejudicial to the service
and imposing a penalty of six-(6) months suspension without pay.

Petitioners are teachers from different public schools in Metro Manila. On various dates
in September and October 1990, petitioners did not report for work and instead,
participated in mass actions by public school teachers at the Liwasang Bonifacio for the
purpose of petitioning the government for redress of their grievances.

On the basis of reports submitted by their respective school principals that petitioners
participated in said mass actions and refused to comply with the return-to-work order
issued September 17, 1990 by then Secretary Isidro D. Cariño of the Department of
Education, Culture and Sports (DECS), petitioners were administratively charged with
such offenses as grave misconduct, gross neglect of duty, gross violation of civil service
law, rules and regulations and reasonable office regulations, refusal to perform official
duty, gross insubordination, conduct prejudicial to the best interest of the service and
absence without official leave. Petitioners failed to answer these charges. Following the
investigations conducted by the DECS Investigating Committees, Secretary Cariño
found petitioners guilty as charged and ordered their immediate dismissal from the
service.4

Petitioners appealed the orders of Secretary Cariño to the Merit Systems Protection
Board (MSPB) and later to the CSC. In 1995, the CSC modified the said orders of
Secretary Cariño as follows:
 WHEREFORE, the Commission hereby finds Everdina Acosta guilty of Conduct
Prejudicial to the Best Interest of the Service. She is hereby meted out the
penalty of six (6) months suspension without pay. Considering the period of time
she was out of service, she is automatically reinstated to her former position
(sic).5

Following the denial of their motion for reconsideration, petitioners questioned the
matter before the Court of Appeals. The appellate court denied their petition
for certiorari and subsequent motion for reconsideration. Hence, this petition.

Petitioners submit the following issues for our consideration:

RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT

AFFIRMED THE ASSAILED RESOLUTIONS OF THE CIVIL SERVICE
COMMISSION THAT WRONGLY PENALIZED PETITIONERS WHOSE ONLY
"OFFENSE" WAS TO EXERCISE THEIR CONSITUTIONAL RIGHT TO
PEACEABLY ASSEMBLE AND PETITION THE GOVERNMENT FOR
REDRESS OF GRIEVANCES.

RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT

AFFIRMED THE ASSAILED RESOLUTIONS OF THE CIVIL SERVICE
COMMISSION THAT WRONGLY DENIED PETITIONERS THEIR RIGHT TO
BACKWAGES.

This petition is not impressed with merit.

Petitioners do not deny their absence from work nor the fact that said absences were
due to their participation in the mass actions at the Liwasang Bonifacio. However, they
contend that their participation in the mass actions was an exercise of their
constitutional rights to peaceably assemble and petition the government for redress of
grievances. Petitioner likewise maintain that they never went on strike because they
never sought to secure changes or modification of the terms and conditions of their
employment.

Petitioners' contentions are without merit. The character and legality of the mass actions
which they participated in have been passed upon by this Court as early as 1990
in Manila Public School Teachers' Association (MPSTA) v. Laguio, Jr.6 wherein we
ruled that "these 'mass actions' were to all intents and purposes a strike; they
constituted a concerted and unauthorized stoppage of, or absence from, work which it
was the teachers' sworn duty to perform, undertaken for essentially economic
reasons."7 In Bangalisan v. Court of Appeals, 8 we added that:

It is an undisputed fact that there was a work stoppage and that petitioners'
purpose was to realize their demands by withholding their services. The fact that
the conventional term "strike" was not used by the striking employees to describe
 their common course of action is inconsequential, since the substance of the
situation, and not its appearance, will be deemed to be controlling.

The ability to strike is not essential to the right of association. In the absence of
statute, public employees for not have the right to engaged in concerted work
stoppages for any purpose.

Further, herein petitioners, except Mariano, are being penalized not because
they exercised their right of peaceable assembly and petition for redress of
grievances but because of their successive unauthorized and unilateral absences
which produced adverse effects upon their students for whose education they are
responsible. The actuations of petitioners definitely constituted conduct
prejudicial to the best interest of the service, punishable under the Civil Service
law, rules and regulations.1âwphi1.nêt

As aptly stated by the Solicitor General, "It is not the exercise by the petitioners
of their constitutional right to peaceable assemble that was punished, but the
manner in which they exercised such right which resulted in the temporary
stoppage or disruption of public service and classes in various public schools in
Metro Manila. For, indeed, there are efficient and non-disruptive avenues, other
than the mass actions in question, whereby petitioners could petition the
government for redress of grievances.

It bears stressing that suspension of public services, however temporary, will

inevitably derail services to the public, which is one of the reasons why the right
to strike is denied government employees. It may be conceded that the
petitioners had valid grievances and noble intentions in staging the "mass
action," but that will not justify their absences to the prejudice of innocent school
children. Their righteous indignation does not legalize an illegal work stoppage. 9

In Jacinto v. Court of Appeals, 10 De La Cruz v. Court of Appeals, 11 and Alipat v. Court

of Appeals, 12 we upheld our rulings in MPSTA and Bangalisan. Considering the factual
circumstances of this case and the doctrine of stare decisis to which we consistently
adhere, we find no compelling reason to deviate from our earlier rulings in these related
cases.

Anent the second issue, petitioners invoke our statement in Bangalisan that payment of
salaries corresponding to the period when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his suspension and if his
suspension is unjustified. Petitioners cite CSC Resolution No. 93-162 and contend that
the determination of the CSC therein that not an iota of evidence was given to
substantiate the conclusion that they participated in a "teacher's strike" amounted to a
finding that they were innocent of the charges filed against them.

As a general proposition, a public official is not entitled to any compensation if he has

not rendered any service. 1 While there recognized instances when backwages may be
awarded to a suspended or dismissed public official who is later ordered reinstated, as
pointed by petitioners in citing Bangalisan, the factual circumstances of the case at bar
impel us to rule otherwise.

Petitioners' reliance on CSC Resolution No. 93-162 is misplaced. Said CSC resolution
disposed of the appeals of Fely Ilarina, Adelaida Dela Cruz, Alicia Galvo, Nenita Albios
and Nerissa Abellanda. Petitioners were never parties to their appeals and, therefore,
cannot cite CSC Resolution No. 93-162 in support of their contention. Petitioner also
overlook the fact that although no evidence was presented to prove that Ilarina, et al.
participated in the mass actions, the CSC explained that the deficiency was cured by
their admissions during the hearings before the MSPB. 14 More importantly, however,
herein petitioners' claim of exoneration is belied by the determination of the CSC that
their participation in the mass actions constituted conduct prejudicial to the service.
Being found liable for a lesser offense is not equivalent to
exoneration. 15

Petitioners also point out that from the issuance of the orders of dismissal by Secretary
Cariño to the modification thereof by the CSC, almost five (5) years elapsed. Petitioners
argue that the period in excess of their preventive suspension and penalty of six (6)
months suspension amounted to unjustified suspension for which an award of
backwages was proper pursuant to our rulings Bautista v. Peralta 16 and Abellera v. City
of Baguio. 17

We disagree. It will be recalled that in Jacinto, we upheld the legality of the immediate
execution of the dismissal orders issued by Secretary Cariño on the ground that under
Section 47(2), 18 Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known
as the Administrative Code of 1987, the decision of a department secretary confirming
the dismissal of an employee under his jurisdiction is executory even pending appeal
thereof. 19 Since dismissal orders remain valid and effective until modified or set aside,
the intervening period during which an employee is not permitted to work cannot be
argued as amounting to unjustified suspension. In Gloria v. Court of Appeals, 20 we
further explained that:

Preventive suspension pending investigation, as already discussed, is not a

penalty but only a means of enabling the disciplining authority to conduct an
unhampered investigation. On the other hand, preventive suspension pending
appeal is actually punitive although it is in effect subsequently considered illegal
if respondent is exonerated and the administrative with full pay for the period of
the suspension. Thus, §47(4) state that respondent "shall be considered as
under preventive suspension during the pendency of the appeal in the event he
wins." On the other hand, if his conviction is affirmed, i.e. if he is not exonerated,
the period of his suspension becomes part of the final penalty of suspension or
dismissal. 21

Petitioners' reliance on Fabella v. Court of Appeals 22 is likewise unavailing. In that case,

the petitioners therein immediately went to court to seek injunctive relief against the
DECS administrative proceedings on the ground that they were deprived of due
process. The trial court declared the administrative proceedings void and ordered the
payment of backwages to the petitioners therein. The Court of Appeals then upheld the
order of the trial court. In affirming both the trial and the Court, we stated therein that:

. . . Because the administrative proceedings involved in this case are void, no

delinquency or misconduct may be imputed to private respondents. Moreover,
the suspension or dismissal meted on them is baseless. Private respondents
should, as a consequence, be reinstated and awarded all monetary benefits that
may have accrued to them during the period of their unjustified suspension or
dismissal. . . . 2

On the other hand, in the case at bar, petitioners initially assailed the alleged non-
observance of due process by the DECS Investigating Committees only upon appeal to
the MSPB. Significantly, however, it had been our consistent ruling that an appeal is
curative of any supposed denial of due process. 24 Thus, after full ventilation of their
case before the MSPB and CSC, and later on before the Court of Appeals, petitioner
cannot now allege denial of due process to justify their claim for backwages.

WHEREFORE, the instant petition is DENIED.

[G.R. NO. 178768 : November 25, 2009]

PACIFIC WIDE REALTY AND DEVELOPMENT CORPORATION, Petitioner, v.

PUERTO AZUL LAND, INC., Respondent.

[G.R. NO. 180893]

PACIFIC WIDE REALTY AND DEVELOPMENT CORPORATION, Petitioner, v.

PUERTO AZUL LAND, INC., Respondent.

DECISION

NACHURA, J.:

Before the Court are the consolidated Petitions for Review on Certiorari under Rule 45
of the Rules of Court: (1) G.R. No. 180893, assailing the Decision1 dated May 17, 2007
and the Resolution2 dated October 30, 2007 of the Court of Appeals (CA) in CA-G.R.
SP No. 92695, entitled "Export and Industry Bank v. Puerto Azul Land, Inc."; and (2)
G.R. No. 178768, assailing the Decision3 dated March 16, 2007 and the Resolution4
dated June 29, 2007 of the CA in CA-G.R. SP No. 91996, entitled "Puerto Azul Land,
Inc. v. The Regional Trial Court of Manila, Br. 24; Sheriff IV of Pasay City Virgilio F.
Villar; and Pacific Wide Realty & Development Corporation (as substitute for Export and
Industry Bank, Inc.)."

The Facts

In G.R. No. 180893

Puerto Azul Land, Inc. (PALI) is the owner and developer of the Puerto Azul Complex
situated in Ternate, Cavite. Its business involves the development of Puerto Azul into a
satellite city with residential areas, resort, tourism and retail commercial centers with
recreational areas.5 In order to finance its operations, it obtained loans from various
banks, the principal amount of which amounted to Six Hundred Forty Million Two
Hundred Twenty-Five Thousand Three Hundred Twenty-Four Pesos
(P640,225,324.00). PALI and its accommodation mortgagors, i.e., Ternate Development
Corporation (TDC), Ternate Utilities, Inc. (TUI), and Mrs. Trinidad Diaz-Enriquez,
secured the loans.6

In the beginning, PALI's business did very well. However, it started encountering
problems when the Philippine Stock Exchange rejected the listing of its shares in its
initial public offering which sent a bad signal to the real estate market. This resulted in
potential investors and real estate buyers shying away from the business venture. The
situation was aggravated by the 1997 Asian financial crisis and the decline of the real
estate market. Consequently, PALI was unable to keep up with the payment of its
obligations, both current and those that were about to fall due. One of its creditors, the
Export and Industry Bank7 (EIB), later substituted by Pacific Wide Realty and
Development Corporation (PWRDC), filed foreclosure proceedings on PALI's
mortgaged properties. Thrust to a corner, PALI filed a petition for suspension of
payments and rehabilitation,8 accompanied by a proposed rehabilitation plan and three
(3) nominees for the appointment of a rehabilitation receiver.9
On September 17, 2004, after finding that the petition was sufficient in form and
substance, the Regional Trial Court (RTC) issued a Stay Order10 and appointed Patrick
V. Caoile as rehabilitation receiver.11 Dissatisfied, EIB filed a motion to replace the
appointed rehabilitation receiver. On January 25, 2005, the RTC denied the motion.12

On April, 20, 2005, the rehabilitation receiver filed his rehabilitation report and
recommendation, wherein he proposed that PALI should be rehabilitated rather than be
dissolved and liquidated. On June 9, 2005, PALI filed a revised rehabilitation plan.13

EIB and the other creditors of PALI filed their respective comments/opposition to the
report/recommendations of the rehabilitation receiver. On November 2, 2005, EIB,
together with another creditor of PALI, Tranche I (SPV-MC), Inc., filed an urgent motion
to disqualify the appointed rehabilitation receiver. The RTC denied the motion in an
Order14 dated December 9, 2005.15

On December 13, 2005, the RTC rendered a Decision16 approving PALI's petition for
suspension of payments and rehabilitation. The pertinent portions of the decision read:

The rehabilitation of the petitioner, therefore, shall proceed as follows:

1. The creditors shall have, as first option, the right to be paid with real estate properties
being offered by the petitioner in dacion en pago, which shall be implemented under the
following terms and conditions:

A. The properties offered by the petitioner shall be appraised by three appraisers, one
to be chosen by the petitioner, a second to be chosen by the bank creditors and the
third to be chosen by the Receiver. The average of the appraisals of the three (3)
chosen appraisers shall be the value to be applied in arriving at the dacion value of the
properties. In case the dacion amount is less than the total of the secured creditor's
principal obligation, the balance shall be restructured in accordance with the schedule of
payments under option 2, paragraph (a). In case of excess, the same shall [be] applied
in full or partial payment of the accrued interest on the obligations. The balance of the
accrued interest, if any, together with the penalties shall [be] condoned.

2. Creditors who will not opt for dacion shall be paid in accordance with the restructuring
of the obligations as recommended by the Receiver as follows:
a) The obligations to secured creditors will be subject to a 50% haircut of the principal,
and repayment shall be semi-annually over a period of 10 years, with 3-year grace
period. Accrued interests and penalties shall be condoned. Interest shall be paid at the
rate of 2% p.a. for the first 5 years and 5% p.a. thereafter until the obligations are fully
paid. The petitioner shall allot 50% of its cash flow available for debt service for secured
creditors. Upon completion of payments to government and employee accounts, the
petitioner's cash flow available for debt service shall be used until the obligations are
fully paid.

b) One half (1/2) of the principal of the petitioner's unsecured loan obligations to other
creditors shall be settled through non-cash offsetting arrangements, with the balance
payable semi-annually over a period of 10 years, with 3-year grace period, with interest
at the rate of 2% p.a. for the first 5 years and 5% p.a. from the 6th year onwards until
the obligations are settled in full. Accrued interest and penalties shall be condoned.

c) Similarly, one half (1/2) of the petitioner's obligations to trade creditors shall be settled
through non-cash offsetting arrangements. The cash payments shall be made semi-
annually over a period of 10 years on a pari passu basis with the bank creditors, without
interest, penalties and other charges of similar kind.

WHEREFORE, the rehabilitation of petitioner Puerto Azul Land, Inc. is hereby approved
in accordance with the foregoing pronouncements by the Court. Subject to the following
terms and conditions:

1. Immediately upon the implementation of the rehabilitation of the petitioner, the

Rehabilitation Receiver shall inform the Court thereof;

2. The Rehabilitation Receiver, creditors, and the petitioner shall submit to the Court at
the end of the first year of the petitioner's rehabilitation, and annually thereafter until the
termination of the rehabilitation, their respective reports on the progress of the
petitioner's rehabilitation, specially the petitioner's compliance with the provisions of the
plan as modified by the Rehabilitation Receiver;

3. The Rehabilitation Receiver shall report to the Court any change in the assumptions
used in the Rehabilitation Plan, its projections, and forecasts, that may be brought about
by the settlement through dacion en pago of any of the obligations and to recommend
corresponding changes, if any, in such assumptions, projections, and forecasts;

4. The rehabilitation of the petitioner is binding upon the creditors and all persons who
may be affected by it, including the creditors, whether or not they have participated in
the proceedings or opposed the plan or whether or not their claims have been
scheduled.

The petitioner is hereby strictly enjoined to abide by the terms and conditions set forth in
this Order and the provisions of the Interim Rules on Corporate Rehabilitation.

The Rehabilitation Receiver is hereby directed to perform his functions and

responsibilities pursuant to Section 14 of the Interim Rules, with particular emphasis on
the following:

"u) To be notified of, and to attend all meetings of the board of directors and
stockholders of the debtors";

"v) To recommend any modification of an approved rehabilitation plan as he may deem

appropriate";

"w) To bring to the attention of the court any material change affecting the debtor's
ability to meet the obligations under the rehabilitation plan";

[x x x x]

"y) To recommend the termination of the proceedings and the dissolution of the debtor if
he determines that the continuance in business of such entity is no longer feasible or
profitable or no longer works to the best interest of the stockholders, parties - litigants,
creditors, or the general public."

SO ORDERED.17
Finding the terms of the rehabilitation plan and the qualifications of the appointed
rehabilitation receiver unacceptable, EIB filed with the CA a Petition for Review under
Rule 42 of the Rules of Court. The case was entitled, "Export and Industry Bank v.
Puerto Azul Land, Inc."

On May 17, 2007, the CA rendered a Decision,18 the fallo of which reads:

WHEREFORE, in view of the forgoing, the Petition for Review is hereby DISMISSED.
The assailed December 13, 2005 decision of the court a quo is hereby AFFIRMED in
toto.19

EIB filed a motion for reconsideration. However, the same was denied in a Resolution20
dated October 30, 2007.

In G.R. No. 178768

On September 21, 2004, EIB entered its appearance before the rehabilitation court and
moved for the clarification of the stay order dated September 17, 2004 and/or leave to
continue the extrajudicial foreclosure of the real estates owned by PALI's
accommodation mortgagors. In opposition, PALI argued that the foreclosure sought
would preempt the rehabilitation proceedings and would give EIB undue preference
over PALI's other creditors. On November 10, 2004, the RTC issued an Order,21
denying EIB's motion.22

On March 3, 2005, EIB filed an urgent motion to order PALI and/or the mortgagor
TUI/rehabilitation receiver to pay all the taxes due on Transfer Certificate of Title (TCT)
No. 133164. EIB claimed that the property covered by TCT No. 133164, registered in
the name of TUI, was one of the properties used to secure PALI's loan from EIB. The
said property was subject to a public auction by the Treasurer's Office of Pasay City for
non-payment of realty taxes. Hence, EIB prayed that PALI or TUI be ordered to pay the
realty taxes due on TCT No. 133164.23

PALI opposed the motion, arguing that the rehabilitation court's stay order stopped the
enforcement of all claims, whether for money or otherwise, against a debtor, its
guarantors, and its sureties not solidarily liable to the debtor; thus, TCT No. 133164 was
covered by the stay order.24
On March 31, 2005, the RTC issued an Order,25 the dispositive portion of which reads:

Accordingly, and as being invoked by the creditor movant, this Court hereby modifies
the Stay Order of September 17, 2004, in such a manner that TCT No. 133614 which is
mortgaged with creditor movant Export and Industry Bank, Inc. is now excluded from
the Stay Order. As such, Export and Industry Bank, Inc. may settle the above-stated
realty taxes of third party mortgagor with the local government of Pasay City. In return,
and to adequately protect the creditor movant Export and Industry Bank, Inc., the latter
may foreclose on TCT No. 133614.

SO ORDERED.26

On April 12, 2005, PALI filed an urgent motion for a status quo order, praying that the
stay order be maintained and that the enforcement of the claim of Pasay City be held in
abeyance pending the hearing of its motion.27 On April 13, 2005, the RTC, so as not to
render moot PALI's motion, issued an Order,28 directing EIB to refrain from taking any
steps to implement the March 31, 2005 Order. The City Treasurer of Pasay City was,
likewise, directed to respect the stay order dated September 17, 2004 insofar as TCT
No. 133164 was concerned, until further orders from the court.29

On August 16, 2005, the RTC issued an Order30 addressing the April 12, 2005 urgent
motion of PALI. In the said order, the rehabilitation court maintained its March 31, 2005
Order. The court reiterated that TCT No. 133164, under the name of TUI, was excluded
from the stay order. In order to protect the interest of EIB as creditor of PALI, it may
foreclose TCT No. 133164 and settle the delinquency taxes of third-party mortgagor TUI
with the local government of Pasay City.

PALI filed an urgent motion to modify the Order dated August 16, 2005. The same was
denied by the RTC in an Order31 dated October 19, 2005. Aggrieved, PALI filed with
the CA a petition for certiorari under Rule 65 of the Rules of Court, ascribing grave
abuse of discretion on the part of the rehabilitation court in allowing the foreclosure of a
mortgage constituted over the property of an accommodation mortgagor, to secure the
loan obligations of a corporation seeking relief in a rehabilitation proceeding. The case
was entitled, "Puerto Azul Land, Inc. v. The Regional Trial Court of Manila, Br. 24;
Sheriff IV of Pasay City Virgilio F. Villar; and Export and Industry Bank, Inc."
On March 16, 2007, the CA rendered a Decision,32 the fallo of which reads:

WHEREFORE, above premises considered, the instant Petition is GRANTED. The

October 19, 2005 Order of the Regional Trial Court of Manila, Br. 24, in Civil Case No.
04-110914 is hereby declared NULL and VOID and the properties covered by TCT No.
133164 are hereby DECLARED subject to and covered by the September 17, 2004 stay
order. Accordingly, Public Respondent Sheriff Virgilio F. Villar, or his substitute or
equivalent, is ORDERED to immediately cease and desist from enforcing the Amended
Notice of Sheriff's Sale, dated February 8, 2007, and from conducting the sale at public
auction of the parcels of land covered by TCT No. 133164 on March 20, 2007 or at
anytime thereafter. No costs.

SO ORDERED.33

EIB filed a motion for reconsideration. The CA denied the same in a Resolution34 dated
June 29, 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Rules of Court.

On July 27, 2009, the Court ordered the consolidation of the two petitions.

The Issues

The issues for resolution are the following: (1) whether the terms of the rehabilitation
plan are unreasonable and in violation of the non-impairment clause; and (2) whether
the rehabilitation court erred when it allowed the foreclosure of the accommodation
mortgagee's property and excluded the same from the coverage of the stay order.

The Ruling of the Court

I
Rehabilitation35 contemplates a continuance of corporate life and activities in an effort
to restore and reinstate the corporation to its former position of successful operation and
solvency. The purpose of rehabilitation proceedings is to enable the company to gain a
new lease on life and thereby allow creditors to be paid their claims from its earnings.
The rehabilitation of a financially distressed corporation benefits its employees,
creditors, stockholders and, in a larger sense, the general public.36

Under the Rules of Procedure on Corporate Rehabilitation,37 "rehabilitation" is defined

as the restoration of the debtor to a position of successful operation and solvency, if it is
shown that its continuance of operation is economically feasible and its creditors can
recover by way of the present value of payments projected in the plan, more if the
corporation continues as a going concern than if it is immediately liquidated.

An indispensable requirement in the rehabilitation of a distressed corporation is the

rehabilitation plan, and Section 5 of the Interim Rules of Procedure on Corporate
Rehabilitation provides the requisites thereof:

SEC. 5. Rehabilitation Plan. - The rehabilitation plan shall include (a) the desired
business targets or goals and the duration and coverage of the rehabilitation; (b) the
terms and conditions of such rehabilitation which shall include the manner of its
implementation, giving due regard to the interests of secured creditors; (c) the material
financial commitments to support the rehabilitation plan; (d) the means for the execution
of the rehabilitation plan, which may include conversion of the debts or any portion
thereof to equity, restructuring of the debts, dacion en pago, or sale of assets or of the
controlling interest; (e) a liquidation analysis that estimates the proportion of the claims
that the creditors and shareholders would receive if the debtor's properties were
liquidated; and (f) such other relevant information to enable a reasonable investor to
make an informed decision on the feasibility of the rehabilitation plan.

In G.R. No. 180893, the rehabilitation plan is contested on the ground that the same is
unreasonable and results in the impairment of the obligations of contract. PWRDC
contests the following stipulations in PALI's rehabilitation plan: fifty percent (50%)
reduction of the principal obligation; condonation of the accrued and substantial
interests and penalty charges; repayment over a period of ten years, with minimal
interest of two percent (2%) for the first five years and five percent (5%) for the next five
years until fully paid, and only upon availability of cash flow for debt service.
We find nothing onerous in the terms of PALI's rehabilitation plan. The Interim Rules on
Corporate Rehabilitation provides for means of execution of the rehabilitation plan,
which may include, among others, the conversion of the debts or any portion thereof to
equity, restructuring of the debts, dacion en pago, or sale of assets or of the controlling
interest.ςrαlαω

The restructuring of the debts of PALI is part and parcel of its rehabilitation. Moreover,
per findings of fact of the RTC and as affirmed by the CA, the restructuring of the debts
of PALI would not be prejudicial to the interest of PWRDC as a secured creditor.
Enlightening is the observation of the CA in this regard, viz.:

There is nothing unreasonable or onerous about the 50% reduction of the principal
amount when, as found by the court a quo, a Special Purpose Vehicle (SPV) acquired
the credits of PALI from its creditors at deep discounts of as much as 85%. Meaning,
PALI's creditors accepted only 15% of their credit's value. Stated otherwise, if PALI's
creditors are in a position to accept 15% of their credit's value, with more reason that
they should be able to accept 50% thereof as full settlement by their debtor. x x x.38

We also find no merit in PWRDC's contention that there is a violation of the impairment
clause. Section 10, Article III of the Constitution mandates that no law impairing the
obligations of contract shall be passed. This case does not involve a law or an executive
issuance declaring the modification of the contract among debtor PALI, its creditors and
its accommodation mortgagors. Thus, the non-impairment clause may not be invoked.
Furthermore, as held in Oposa v. Factoran, Jr.39 even assuming that the same may be
invoked, the non-impairment clause must yield to the police power of the State. Property
rights and contractual rights are not absolute. The constitutional guaranty of non-
impairment of obligations is limited by the exercise of the police power of the State for
the common good of the general public.

Successful rehabilitation of a distressed corporation will benefit its debtors, creditors,

employees, and the economy in general. The court may approve a rehabilitation plan
even over the opposition of creditors holding a majority of the total liabilities of the
debtor if, in its judgment, the rehabilitation of the debtor is feasible and the opposition of
the creditors is manifestly unreasonable.40 The rehabilitation plan, once approved, is
binding upon the debtor and all persons who may be affected by it, including the
creditors, whether or not such persons have participated in the proceedings or have
opposed the plan or whether or not their claims have been scheduled.41
II

On the issue of whether the rehabilitation court erred when it allowed the foreclosure by
PWRDC of the property of the accommodation mortgagor and excluded the same from
the coverage of the stay order, we rule in the negative.

The governing law concerning rehabilitation and suspension of actions for claims
against corporations is Presidential Decree (P.D.) No. 902-A, as amended (P.D. No.
902-A). Section 6(c) of P.D. No. 902-A mandates that, upon appointment of a
management committee, rehabilitation receiver, board, or body, all actions for claims
against corporations, partnerships or associations under management or receivership
pending before any court, tribunal, board, or body shall be suspended. Stated
differently, all actions for claims against a corporation pending before any court, tribunal
or board shall ipso jure be suspended in whatever stage such actions may be found.42

The justification for the suspension of actions or claims pending rehabilitation

proceedings is to enable the management committee or rehabilitation receiver to
effectively exercise its/his powers free from any judicial or extrajudicial interference that
might unduly hinder or prevent the "rescue" of the debtor company. To allow such other
action to continue would only add to the burden of the management committee or
rehabilitation receiver, whose time, effort and resources would be wasted in defending
claims against the corporation instead of being directed toward its restructuring and
rehabilitation.43

In G.R. No. 178768, the rehabilitation court, in its Orders dated March 31, 2005 and
August 16, 2005, removed TCT No. 133164 from the coverage of the stay order. The
property covered by TCT No. 133164 is owned by TUI. TCT No. 133164 was
mortgaged to PWRDC by TUI as an accommodation mortgagor of PALI by virtue of the
Mortgage Trust Indenture (MTI) dated February 1995.

The MTI was executed among TDC, TUI and Mrs. Trinidad Diaz - Enriquez, as
mortgagors; PALI, as borrower; and Urban Bank, as trustee. Under Section 4.04
thereof, the mortgagors and the borrower guaranteed to pay and discharge on time all
taxes, assessments and governmental charges levied or assessed on the collateral and
immediately surrender to the trustee copies of the official receipts for such payments. It
was also agreed therein that should the borrower fail to pay such uncontested taxes,
assessments and charges within sixty (60) calendar days from due date thereof, the
trustee, at its option, shall declare the mortgagors and the borrower in default under
Section 6.01(d) of the MTI, or notify all the lenders of such failure.44

In excluding the property from the coverage of the stay order and allow PWRDC to
foreclose on the mortgage and settle the realty tax delinquency of the property with
Pasay City, the rehabilitation court used as justification Section 12, Rule 4 of the Interim
Rules on Corporate Rehabilitation. The said section provides:

SEC. 12. Relief from, Modification, or Termination of Stay Order. - The court may, on
motion or motu proprio, terminate, modify, or set conditions for the continuance of the
stay order, or relieve a claim from the coverage thereof upon showing that (a) any of the
allegations in the petition, or any of the contents of any attachment, or the verification
thereof has ceased to be true; (b) a creditor does not have adequate protection over
property securing its claim; or (c) the debtor's secured obligation is more than the fair
market value of the property subject of the stay and such property is not necessary for
the rehabilitation of the debtor.

For purposes of this section, the creditor shall lack adequate protection if it can be
shown that:

A. the debtor fails or refuses to honor a pre-existing agreement with the creditor to keep
the property insured;

b. the debtor fails or refuses to take commercially reasonable steps to maintain the
property; or

c. the property has depreciated to an extent that the creditor is undersecured.

Upon showing of a lack of adequate protection, the court shall order the rehabilitation
receiver to (a) make arrangements to provide for the insurance or maintenance of the
property, or (b) to make payments or otherwise provide additional or replacement
security such that the obligation is fully secured. If such arrangements are not feasible,
the court shall modify the stay order to allow the secured creditor lacking adequate
protection to enforce its claim against the debtor; Provided, however, that the court may
deny the creditor the remedies in this paragraph if such remedies would prevent the
continuation of the debtor as a going concern or otherwise prevent the approval and
implementation of a rehabilitation plan.

In its March 31, 2005 Order, the rehabilitation court ratiocinated that PALI violated the
terms of the MTI by failing to take reasonable steps to protect the security given to
PWRDC, viz.:

It is crystal clear that Ternate Utilities, Inc. being the owner of TCT No. 133614 is the
one liable to pay the realty taxes to the local government of Pasay City. The petitioner
[PALI], not being the owner of the subject land does not owe the local government of
Pasay City in the same way [as] the local government of Pasay City is not a creditor of
petitioner [PALI]. The local government of Pasay City is pursuing directly the tax
obligation of Ternate Utilities, Inc. which company is not the petitioner [PALI] in this
case. Hence, for all intents and purposes, the Stay Order does not cover the tax
obligations of Ternate Utilities, Inc. to the local government of Pasay
City.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

In [petitioner PALI's] Comment, it can be gleaned that neither Ternate Utilities, Inc. nor
the petitioner [PALI] has the intention of paying the real property taxes on TCT No.
133614, which inaction will naturally result in the auctioning of [the] subject land to the
prejudice and damage of creditor movant being the mortgagee thereof. Likewise, it is
uncontested that the failure of the petitioner or Ternate Utilities, Inc. to pay the realty
property taxes violate[d] the pre-existing agreement of the petitioner [PALI] and Ternate
Utilities, Inc. to the creditor movant.45

In the August 16, 2005 Order, the rehabilitation court reaffirmed its decision to remove
TCT No. 133164 from the coverage of the stay order in order to protect the secured
claim of PWRDC, viz.:

Considering that the auction sale of TCT No. 133614 by the local government of Pasay
City without the Ternate Utilities, Inc., or the petitioner [PALI] redeeming or paying the
corresponding due taxes and penalties totaling to P7,523,257.50 as indicated in the
aforesaid Certificate of Sale of Delinquent Real Property, the interest of creditor EIB is
greatly prejudiced.

Lastly, even assuming that the value of the PALI property covered by the MTI [Mortgage
Trust Indenture] is indeed P1.877 Billion, however, the total claim of EIB against the
petitioner [PALI] is more than P1.4 Billion Pesos (By statement of Asset attached by EIB
in its Comment/Opposition to the petition for rehabilitation dated November 10, 2004) as
of October 31, 2004 which total obligation is still counting as to date. Hence, not
redeeming the auctioned TCT No. 133614 from the Pasay City Government definitely
renders creditor EIB not possessing adequate protection over [the] property securing its
claim against petitioner [PALI].46

Accordingly, the rehabilitation court committed no reversible error when it removed TCT
No. 133164 from the coverage of the stay order. The Interim Rules of Procedure on
Corporate Rehabilitation is silent on the enforcement of claims specifically against the
properties of accommodation mortgagors. It only covers the suspension, during the
pendency of the rehabilitation, of the enforcement of all claims against the debtor, its
guarantors and sureties not solidarily liable with the mortgagor.

Furthermore, the newly adopted Rules of Procedure on Corporate Rehabilitation has a

specific provision for this special arrangement among a debtor, its creditor and its
accommodation mortgagor. Section 7(b), Rule 3 of the said Rules explicitly allows the
foreclosure by a creditor of a property not belonging to a debtor under corporate
rehabilitation, as it provides:

SEC. 7. Stay Order.' x x x (b) staying enforcement of all claims, whether for money or
otherwise and whether such enforcement is by court action or otherwise, against the
debtor, its guarantors and persons not solidarily liable with the debtor; provided, that the
stay order shall not cover claims against letters of credit and similar security
arrangements issued by a third party to secure the payment of the debtor's obligations;
provided, further, that the stay order shall not cover foreclosure by a creditor of property
not belonging to a debtor under corporate rehabilitation; provided, however, that where
the owner of such property sought to be foreclosed is also a guarantor or one who is not
solidarily liable, said owner shall be entitled to the benefit of excussion as such
guarantor[.]47

Thus, there is no question that the action of the rehabilitation court in G.R. No. 178768
was justified.

WHEREFORE, in view of the foregoing, (1) the Decision dated May 17, 2007 and the
Resolution dated October 30, 2007 of the Court of Appeals in CA-G.R. SP No. 92695
are hereby AFFIRMED; and (2) the Decision dated March 16, 2007 and the Resolution
dated June 29, 2007 of the Court of Appeals in CA-G.R. SP No. 91996 are hereby SET
ASIDE. The October 19, 2005 Order of the Regional Trial Court of Manila in Civil Case
No. 04-110914 is hereby AFFIRMED. The property covered by TCT No. 133164 is
hereby declared excluded from the coverage of the September 17, 2004 Stay Order.

G.R. No. 162243               December 3, 2009

HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her

capacity as Secretary of the Department of Environment and Natural
Resources, Petitioner,
vs.
PICOP RESOURCES, INC., Respondent.

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

G.R. No. 164516

PICOP RESOURCES, INC., Petitioner,

vs.
HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her
capacity as Secretary of the Department of Environment and Natural
Resources Respondent.

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

G.R. No. 171875              

THE HON. ANGELO T. REYES (formerly Hon. Elisea G. Gozun), in his capacity as
Secretary of the Department of Environment and Natural Resources
(DENR), Petitioner,
vs.
PAPER INDUSTRIES CORP. OF THE PHILIPPINES (PICOP), Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

The cause of action of PICOP Resources, Inc. (PICOP) in its Petition for Mandamus
with the trial court is clear: the government is bound by contract, a 1969 Document
signed by then President Ferdinand Marcos, to enter into an Integrated Forest
Management Agreement (IFMA) with PICOP. Since the remedy of mandamus lies only
to compel an officer to perform a ministerial duty, and since the 1969 Document itself
has a proviso requiring compliance with the laws and the Constitution, the issues in this
Motion for Reconsideration are the following: (1) firstly, is the 1969 Document a contract
enforceable under the Non-Impairment Clause of the Constitution, so as to make the
signing of the IFMA a ministerial duty? (2) secondly, did PICOP comply with all the legal
and constitutional requirements for the issuance of an IFMA?
To recall, PICOP filed with the Department of Environment and Natural Resources
(DENR) an application to have its Timber License Agreement (TLA) No. 43 converted
into an IFMA. In the middle of the processing of PICOP’s application, however, PICOP
refused to attend further meetings with the DENR. Instead, on 2 September 2002,
PICOP filed before the Regional Trial Court (RTC) of Quezon City a Petition for
Mandamus1 against then DENR Secretary Heherson T. Alvarez. PICOP seeks the
issuance of a privileged writ of mandamus to compel the DENR Secretary to sign,
execute and deliver an IFMA to PICOP, as well as to –

[I]ssue the corresponding IFMA assignment number on the area covered by the IFMA,
formerly TLA No. 43, as amended; b) to issue the necessary permit allowing petitioner
to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw
material requirements of petitioner’s pulp and paper mills in accordance with the
warranty and agreement of July 29, 1969 between the government and PICOP’s
predecessor-in-interest; and c) to honor and respect the Government Warranties and
contractual obligations to PICOP strictly in accordance with the warranty and agreement
dated July 29, [1969] between the government and PICOP’s predecessor-in-interest. x x
x.2

On 11 October 2002, the RTC rendered a Decision granting PICOP’s Petition for
Mandamus, thus:

WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED.

The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered:

1. to sign, execute and deliver the IFMA contract and/or documents to PICOP
and issue the corresponding IFMA assignment number on the area covered by
the IFMA, formerly TLA No. 43, as amended;

2. to issue the necessary permit allowing petitioner to act and harvest timber from
the said area of TLA No. 43, sufficient to meet the raw material requirements of
petitioner’s pulp and paper mills in accordance with the warranty and agreement
of July 29, 1969 between the government and PICOP’s predecessor-in-interest;
and

3. to honor and respect the Government Warranties and contractual obligations

to PICOP strictly in accordance with the warranty and agreement dated July 29,
1999 (sic) between the government and PICOP’s predecessor-in-interest
(Exhibits "H", "H-1" to "H-5", particularly the following:

a) the area coverage of TLA No. 43, which forms part and parcel of the
government warranties;

b) PICOP tenure over the said area of TLA No. 43 and exclusive right to
cut, collect and remove sawtimber and pulpwood for the period ending on
 April 26, 1977; and said period to be renewable for [an]other 25 years
subject to compliance with constitutional and statutory requirements as
well as with existing policy on timber concessions; and

c) The peaceful and adequate enjoyment by PICOP of the area as

described and specified in the aforesaid amended Timber License
Agreement No. 43.

The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of ₱10
million a month beginning May 2002 until the conversion of TLA No. 43, as amended, to
IFMA is formally effected and the harvesting from the said area is granted. 3

On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration. 4 In a 10
February 2003 Order, the RTC denied the DENR Secretary’s Motion for
Reconsideration and granted PICOP’s Motion for the Issuance of Writ of Mandamus
and/or Writ of Mandatory Injunction.5 The fallo of the 11 October 2002 Decision was
practically copied in the 10 February 2003 Order, although there was no mention of the
damages imposed against then DENR Secretary Alvarez. 6 The DENR Secretary filed a
Notice of Appeal7 from the 11 October 2002 Decision and the 10 February 2003 Order.

On 19 February 2004, the Seventh Division of the Court of Appeals affirmed 8 the
Decision of the RTC, to wit:

WHEREFORE, the appealed Decision is hereby AFFIRMED with modification that the
order directing then DENR Secretary Alvarez "to pay petitioner-appellee the sum of P10
million a month beginning May, 2002 until the conversion to IFMA of TLA No. 43, as
amended, is formally effected and the harvesting from the said area is granted" is
hereby deleted. 9

Challenging the deletion of the damages awarded to it, PICOP filed a Motion for Partial
Reconsideration10 of this Decision, which was denied by the Court of Appeals in a 20
July 2004 Resolution.11

The DENR Secretary and PICOP filed with this Court separate Petitions for Review of
the 19 February 2004 Court of Appeals Decision. These Petitions were docketed as
G.R. No. 162243 and No. 164516, respectively. These cases were consolidated with
G.R. No. 171875, which relates to the lifting of a Writ of Preliminary Injunction enjoining
the execution pending appeal of the foregoing Decision.

On 29 November 2006, this Court rendered the assailed Decision on the Consolidated
Petitions:

WHEREFORE, the Petition in G.R. No. 162243 is GRANTED. The Decision of the Court
of Appeals insofar as it affirmed the RTC Decision granting the Petition for Mandamus
filed by Paper Industries Corp. of the Philippines (PICOP) is hereby REVERSED and
SET ASIDE. The Petition in G.R. No. 164516 seeking the reversal of the same Decision
insofar as it nullified the award of damages in favor of PICOP is DENIED for lack of
merit. The Petition in G.R. No. 171875, assailing the lifting of the Preliminary Mandatory
Injunction in favor of the Secretary of Environment and Natural Resources is
DISMISSED on the ground of mootness.12

On 18 January 2006, PICOP filed the instant Motion for Reconsideration, based on the
following grounds:

I.

THE HONORABLE COURT ERRED IN HOLDING THAT THE CONTRACT WITH

PRESIDENTIAL WARRANTY SIGNED BY THE PRESIDENT OF THE REPUBLIC ON
29 JUNE 1969 ISSUED TO PICOP IS A MERE PERMIT OR LICENSE AND IS NOT A
CONTRACT, PROPERTY OR PROPERTY RIGHT PROTECTED BY THE DUE
PROCESS CLAUSE OF THE CONSTITUTION

II.

THE EVALUATION OF PICOP’S MANAGEMENT OF THE TLA 43 NATURAL FOREST

CLEARLY SHOWED SATISFACTORY PERFORMANCE FOR KEEPING THE
NATURAL FOREST GENERALLY INTACT AFTER 50 YEARS OF FOREST
OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR AUTOMATIC
CONVERSION UNDER SECTION 9 OF DAO 99-53.

III.

WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS

OF FACTS OF THE TRIAL COURT AND THE COURT OF APPEALS,
MISAPPRECIATED THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY, WHEN IT
RULED THAT:

i.

PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST PROTECTION PLAN AND A

SEVEN-YEAR REFORESTATION PLAN FOR THE YEARS UNDER REVIEW.

ii.

PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.

iii.

PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION

FROM THE NCIP THAT THE AREA OF TLA 43 DOES NOT OVERLAP WITH ANY
ANCESTRAL DOMAIN.
 iv.

PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM

THE SANGUNIAN CONCERNED, AS REQUIRED BY SECTION 27 OF THE
REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT
CODE OF 1991.

v.

PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL

DECREE NO. 1586.

IV

THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR

AUTOMATIC CONVERSION HE ISSUED ON 25 OCTOBER 2001 WAS NOT DUE TO
ANY SHORTCOMING FROM PICOP BUT DUE TO HIS DETERMINATION TO
EXCLUDE 28,125 HECTARES FROM THE CONVERSION AND OTHER THINGS.

On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to
refer the consolidated cases at bar to the Court en banc. On 16 December 2008, this
Court sitting en banc resolved to accept the said cases and set them for oral arguments.
Oral arguments were conducted on 10 February 2009.

PICOP’s Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ
of Mandamus

In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP
relied on a 29 July 1969 Document, the so-called Presidential Warranty approved by
then President Ferdinand E. Marcos in favor of PICOP’s predecessor-in-interest, Bislig
Bay Lumber Company, Inc. (BBLCI). PICOP’s cause of action is summarized in
paragraphs 1.6 and 4.19 of its Petition for Mandamus:

1.6 Respondent Secretary impaired the obligation of contract under the said Warranty
and Agreement of 29 July 1969 by refusing to respect the tenure; and its renewal for
another twenty five (25) years, of PICOP over the area covered by the said Agreement
which consists of permanent forest lands with an aggregate area of 121,587 hectares
and alienable and disposable lands with an aggregate area of approximately 21,580
hectares, and petitioner’s exclusive right to cut, collect and remove sawtimber and
pulpwood therein and the peaceful and adequate enjoyment of the said area as
described and specified in petitioner’s Timber License Agreement (TLA) No. 43
guaranteed by the Government, under the Warranty and Agreement of 29 July 1969. 13

4.19 Respondent is in violation of the Constitution and has impaired the obligation of
contract by his refusal to respect: a) the tenurial rights of PICOP over the forest area
covered by TLA No. 43, as amended and its renewal for another twenty five (25) years;
b) the exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood
therein; and c) PICOP’s peaceful and adequate enjoyment of the said area which the
government guaranteed under the Warranty and Agreement of 29 July 1969. 14

The grounds submitted by PICOP in its Petition for Mandamus are as follows:

Respondent secretary has unlawfully refused and/or neglected to sign and execute the
IFMA contract of PICOP even as the latter has complied with all the legal requirements
for the automatic conversion of TLA No. 43, as amended, into an IFMA.

II

Respondent Secretary acted with grave abuse of discretion and/or in excess of

jurisdiction in refusing to sign and execute PICOP’s IFMA contract, notwithstanding that
PICOP had complied with all the requirements for Automatic Conversion under DAO 99-
53, as in fact Automatic Conversion was already cleared in October, 2001, and was a
completed process.

III

Respondent Secretary has impaired the obligation of contract under a valid and binding
warranty and agreement of 29 July 1969 between the government and PICOP’s
predecessor-in-interest, by refusing to respect: a) the tenure of PICOP, and its renewal
for another twenty five (25) years, over the TLA No.43 area covered by said agreement;
b) the exclusive right to cut, collect and remove sawtimber and pulpwood timber; and c)
the peaceful and adequate enjoyment of the said area.

IV

As a result of respondent Secretary’s unlawful refusal and/or neglect to sign and deliver
the IFMA contract, and violation of the constitutional rights of PICOP against non-
impairment of the obligation of contract (Sec. 10, Art. III, 1997 [sic] Constitution), PICOP
suffered grave and irreparable damages. 15

Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of
which provides:

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent. (Emphasis supplied.)

PICOP is thus asking this Court to conclude that the DENR Secretary is specifically
enjoined by law to issue an IFMA in its favor. An IFMA, as defined by DENR
Administrative Order (DAO) No. 99-53,16 is -

[A] production-sharing contract entered into by and between the DENR and a qualified
applicant wherein the DENR grants to the latter the exclusive right to develop, manage,
protect and utilize a specified area of forestland and forest resource therein for a period
of 25 years and may be renewed for another 25-year period, consistent with the
principle of sustainable development and in accordance with an approved CDMP, and
under which both parties share in its produce. 17

PICOP stresses the word "automatic" in Section 9 of this DAO No. 99-53:

Sec. 9. Qualifications of Applicants. – The applicants for IFMA shall be:

(a) A Filipino citizen of legal age; or,

(b) Partnership, cooperative or corporation whether public or private, duly

registered under Philippine laws.

However, in the case of application for conversion of TLA into IFMA, an automatic
conversion after proper evaluation shall be allowed, provided the TLA holder shall have
signified such intention prior to the expiry of the TLA, PROVIDED further, that the TLA
holder has showed satisfactory performance and have complied in the terms of
condition of the TLA and pertinent rules and regulations. (Emphasis supplied.) 18

This administrative regulation provision allowing automatic conversion after proper

evaluation can hardly qualify as a law, much less a law specifically enjoining the
execution of a contract. To enjoin is "to order or direct with urgency; to instruct with
authority; to command."19 "‘Enjoin’ is a mandatory word, in legal parlance, always; in
common parlance, usually."20 The word "allow," on the other hand, is not equivalent to
the word "must," and is in no sense a command.21

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to

perform a ministerial duty, not a discretionary one; mandamus will not issue to control
the exercise of discretion of a public officer where the law imposes upon him the duty to
exercise his judgment in reference to any manner in which he is required to act,
because it is his judgment that is to be exercised and not that of the court. 22

The execution of agreements, in itself, involves the exercise of discretion. Agreements

are products of negotiations and mutual concessions, necessitating evaluation of their
provisions on the part of both parties. In the case of the IFMA, the evaluation on the part
of the government is specifically mandated in the afore-quoted Section 3 of DAO No.
99-53. This evaluation necessarily involves the exercise of discretion and judgment on
the part of the DENR Secretary, who is tasked not only to negotiate the sharing of the
profit arising from the IFMA, but also to evaluate the compliance with the requirements
on the part of the applicant.

Furthermore, as shall be discussed later, the period of an IFMA that was merely
automatically converted from a TLA in accordance with Section 9, paragraph 2 of DAO
No. 99-53 would only be for the remaining period of the TLA. Since the TLA of PICOP
expired on 26 April 2002, the IFMA that could have been granted to PICOP via the
automatic conversion provision in DAO No. 99-53 would have expired on the same
date, 26 April 2002, and the PICOP’s Petition for Mandamus would have become moot.

This is where the 1969 Document, the purported Presidential Warranty, comes into
play. When PICOP’s application was brought to a standstill upon the evaluation that
PICOP had yet to comply with the requirements for such conversion, PICOP refused to
attend further meetings with the DENR and instead filed a Petition for Mandamus,
insisting that the DENR Secretary had impaired the obligation of contract by his refusal
to respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43,
as amended, and its renewal for another twenty-five (25) years; b) the exclusive right of
PICOP to cut, collect and remove sawtimber and pulpwood therein; and c) PICOP’s
peaceful and adequate enjoyment of the said area which the government guaranteed
under the Warranty and Agreement of 29 July 1969. 23

PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA
in its favor because of the 1969 Document.

A contract, being the law between the parties, can indeed, with respect to the State
when it is a party to such contract, qualify as a law specifically enjoining the
performance of an act. Hence, it is possible that a writ of mandamus may be issued to
PICOP, but only if it proves both of the following:

1) That the 1969 Document is a contract recognized under the non-impairment

clause; and

2) That the 1969 Document specifically enjoins the government to issue the
IFMA.

If PICOP fails to prove any of these two matters, the grant of a privileged writ of
mandamus is not warranted. This was why we pronounced in the assailed Decision that
the overriding controversy involved in the Petition was one of law. 24 If PICOP fails to
prove any of these two matters, more significantly its assertion that the 1969 Document
is a contract, PICOP fails to prove its cause of action. 25 Not even the satisfactory
compliance with all legal and administrative requirements for an IFMA would save
PICOP’s Petition for Mandamus.
The reverse, however, is not true. The 1969 Document expressly states that the
warranty as to the tenure of PICOP is "subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions." Thus, if
PICOP proves the two above-mentioned matters, it still has to prove compliance with
statutory and administrative requirements for the conversion of its TLA into an IFMA.

Exhaustion of Administrative Remedies

PICOP uses the same argument –– that the government is bound by contract to issue
the IFMA –– in its refusal to exhaust all administrative remedies by not appealing the
alleged illegal non-issuance of the IFMA to the Office of the President. PICOP claimed
in its Petition for Mandamus with the trial court that:

1.10 This petition falls as an exception to the exhaustion of administrative remedies.

The acts of respondent DENR Secretary complained of in this petition are patently
illegal; in derogation of the constitutional rights of petitioner against non-impairment of
the obligation of contracts; without jurisdiction, or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess or lack of
jurisdiction; and moreover, the failure or refusal of a high government official such as a
Department head from whom relief is brought to act on the matter was considered
equivalent to exhaustion of administrative remedies (Sanoy v. Tantuico, 50 SCRA 455
[1973]), and there are compelling and urgent reasons for judicial intervention (Bagatsing
v. Ramirez, 74 SCRA 306 [1976]).

Thus, if there has been no impairment of the obligation of contracts in the DENR
Secretary’s non-issuance of the IFMA, the proper remedy of PICOP in claiming that it
has complied with all statutory and administrative requirements for the issuance of the
IFMA should have been with the Office of the President. This makes the issue of the
enforceability of the 1969 Document as a contract even more significant.

The Nature and Effects of the Purported 29 July 1969 Presidential Warranty

Base Metals Case

PICOP challenges our ruling that the 1969 Document is not a contract. Before we
review this finding, however, it must be pointed out that one week after the assailed
Decision, another division of this Court promulgated a Decision concerning the very
same 1969 Document. Thus, in PICOP Resources, Inc. v. Base Metals Mineral
Resources Corporation,26 five other Justices who were still unaware of this Division’s
Decision,27 came up with the same conclusion as regards the same issue of whether
former President Marcos’s Presidential Warranty is a contract:

Finally, we do not subscribe to PICOP’s argument that the Presidential Warranty dated
September 25, 1968 is a contract protected by the non-impairment clause of the 1987
Constitution.
An examination of the Presidential Warranty at once reveals that it simply reassures
PICOP of the government’s commitment to uphold the terms and conditions of its timber
license and guarantees PICOP’s peaceful and adequate possession and enjoyment of
the areas which are the basic sources of raw materials for its wood processing complex.
The warranty covers only the right to cut, collect, and remove timber in its concession
area, and does not extend to the utilization of other resources, such as mineral
resources, occurring within the concession.

The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47
and FMA No. 35. We agree with the OSG’s position that it is merely a collateral
undertaking which cannot amplify PICOP’s rights under its timber license. Our definitive
ruling in Oposa v. Factoran that a timber license is not a contract within the purview of
the non-impairment clause is edifying. We declared:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protected by the due process clause of the
Constitution. In Tan vs. Director of Forestry, this Court held:

"x x x A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a license
or a privilege, which can be validly withdrawn whenever dictated by public interest or
public welfare as in this case.

‘A license is merely a permit or privilege to do what otherwise would be unlawful, and is

not a contract between the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it a property or a property right, nor does it
create a vested right; nor is it taxation' (C.J. 168). Thus, this Court held that the granting
of license does not create irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576). x x x"

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary:

"x x x Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession area and the forest products
therein. They may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed contracts
within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302]."

Since timber licenses are not contracts, the non-impairment clause, which reads:
"SEC. 10. No law impairing the obligation of contracts shall be passed."

cannot be invoked.

The Presidential Warranty cannot, in any manner, be construed as a contractual

undertaking assuring PICOP of exclusive possession and enjoyment of its concession
areas. Such an interpretation would result in the complete abdication by the State in
favor of PICOP of the sovereign power to control and supervise the exploration,
development and utilization of the natural resources in the area. 28

The Motion for Reconsideration was denied with finality on 14 February 2007. A Second
Motion for Reconsideration filed by PICOP was denied on 23 May 2007.

PICOP insists that the pronouncement in Base Metals is a mere obiter dictum, which
would not bind this Court in resolving this Motion for Reconsideration. In the oral
arguments, however, upon questioning from the ponente himself of Base Metals, it was
agreed that the issue of whether the 1969 Document is a contract was necessary in the
resolution of Base Metals:

JUSTICE TINGA:

And do you confirm that one of the very issues raised by PICOP in that case [PICOP
Resources Inc. v. Base Metal Mineral Resources Corporation] revolves around its claim
that a Presidential Warranty is protected by the non-impairment c[l]ause of the
Constitution.

ATTY. AGABIN:

Yes, I believe that statement was made by the Court, your Honor.

JUSTICE TINGA:

Yes. And that claim on the part of PICOP necessarily implies that the Presidential
Warranty according to PICOP is a contract protected by the non-impairment clause.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE TINGA:

Essentially, the PICOP raised the issue of whether the Presidential Warranty is a
contract or not.

ATTY. AGABIN:
Yes, Your Honor.

JUSTICE TINGA:

And therefore any ruling on the part of the Court on that issue could not be an obiter
dictum.

ATTY. AGABIN:

Your Honor, actually we believe that the basic issue in that case was whether or not
Base Metals could conduct mining activities underneath the forest reserve allotted to
PICOP and the Honorable Court ruled that the Mining Act of 1995 as well as the
Department Order of DENR does not disallow mining activity under a forest reserve.

JUSTICE TINGA:

But it was PICOP itself which raised the claim that a Presidential Warranty is a contract.
And therefore be, should be protected on the under the non-impairment clause of the
Constitution.

ATTY. AGABIN:

Yes, Your Honor. Except that…

JUSTICE TINGA:

So, how can you say now that the Court merely uttered, declared, laid down an obiter
dictum in saying that the Presidential Warranty is not a contract, and it is not being a
contract, it is not prohibited by the non-impairment clause.

ATTY. AGABIN:

This Honorable Court could have just ruled, held that the mining law allows mining
activities under a forest reserve without deciding on that issue that was raised by
PICOP, your Honor, and therefore we believe….

JUSTICE TINGA:

It could have been better if PICOP has not raised that issue and had not claimed that
the Presidential Warranty is not a contract.

ATTY. AGABIN:

Well, that is correct, your Honor except that the Court could have just avoided that
question. Because…
JUSTICE TINGA:

Why[?]

ATTY. AGABIN:

It already settled the issue, the basic issue.

JUSTICE TINGA:

Yes, because the Court in saying that merely reiterated a number of rulings to the effect
that the Presidential Warranty, a Timber License for that matter is not a contract
protected by the non-impairment laws.

ATTY. AGABIN:

Well, it is our submission, your Honor, that it is obiter because, that issue even a phrase
by PICOP was not really fully argued by the parties for the Honorable Court and it
seems from my reading at least it was just an aside given by the Honorable Court to
decide on that issue raised by PICOP but it was not necessary to the decision of the
court.

JUSTICE TINGA:

It was not necessary[?]

ATTY. AGABIN:

To the decision of the Court.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

It was not necessary.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

Yes.
JUSTICE TINGA:

And PICOP devoted quite a number of pages in [its] memorandum to that issue and so
did the Court [in its Decision].

ATTY. AGABIN:

Anyway, your Honor, we beg the Court to revisit, not to… 29

Interpretation of the 1969 Document That Would Be in Harmony with the Constitution

To remove any doubts as to the contents of the 1969 Document, the purported
Presidential Warranty, below is a complete text thereof:

Republic of the Philippines

Department of Agriculture and Natural Resources
OFFICE OF THE SECRETARY
Diliman, Quezon City

D-53, Licenses (T.L.A. No. 43)

Bislig Bay Lumber Co., Inc.
(Bislig, Surigao)

July 29, 1969

Bislig Bay Lumber Co., Inc.

[unreadable word] Bldg.
Makati, Rizal

S i r s:

This has reference to the request of the Board of Investments through its Chairman in a
letter dated July 16, 1969 for a warranty on the boundaries of your concession area
under Timber License Agreement No. 43, as amended.

We are made to understand that your company is committed to support the first large
scale integrated wood processing complex hereinafter called: "The Project") and that
such support will be provided not only in the form of the supply of pulpwood and other
wood materials from your concession but also by making available funds generated out
of your own operations, to supplement PICOP’s operational sources of funds and other
financial arrangements made by him. In order that your company may provide such
support effectively, it is understood that you will call upon your stockholders to take such
steps as may be necessary to effect a unification of managerial, technical, economic
and manpower resources between your company and PICOP.
It is in the public interest to promote industries that will enhance the proper conservation
of our forest resources as well as insure the maximum utilization thereof to the benefit of
the national economy. The administration feels that the PICOP project is one such
industry which should enjoy priority over the usual logging operations hitherto practiced
by ordinary timber licensees: For this reason, we are pleased to consider favorably the
request.

We confirm that your Timber License Agreement No. 43, as amended (copy of which is
attached as Annex "A" hereof which shall form part and parcel of this warranty)
definitely establishes the boundary lines of your concession area which consists of
permanent forest lands with an aggregate area of 121,587 hectares and alienable or
disposable lands with an aggregate area of approximately 21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and
remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said
period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified
in your aforesaid amended Timber License Agreement No. 43 is hereby warranted
provided that pertinent laws, regulations and the terms and conditions of your license
agreement are observed.

Very truly yours,

(Sgd.) FERNANDO LOPEZ

Secretary of Agriculture
and Natural Resources

Encl.:

RECOMMENDED BY:

(Sgd.) JOSE VIADO

Acting Director of Forestry

APPROVED:

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

ACCEPTED:

BISLIG BAY LBR. CO., INC.

By:
 (Sgd.) JOSE E. SORIANO
President

PICOP interprets this document in the following manner:

6.1 It is clear that the thrust of the government warranty is to establish a particular area
defined by boundary lines of TLA No. 43 for the PICOP Project. In consideration for
PICOP’s commitment to pursue and establish the project requiring huge
investment/funding from stockholders and lending institutions, the government provided
a warranty that ensures the continued and exclusive right of PICOP to source its raw
materials needs from the forest and renewable trees within the areas established.

6.2 As a long-term support, the warranty covers the initial twenty five (25) year period
and is renewable for periods of twenty five (25) years provided the project continues to
exist and operate. Very notably, the wording of the Presidential Warranty connotes that
for as long as the holder complies with all the legal requirements, the term of the
warranty is not limited to fifty (50) years but other twenty five (25) years.

6.3 Note must be made that the government warranted that PICOP’s tenure over the
area and exclusive right to cut, collect and remove saw timber and pulpwood shall be
for the period ending on 26 April 1977 and said period to be renewable for other 25
years subject to "compliance with constitutional and statutory requirements as well as
existing policy on timber requirements". It is clear that the renewal for other 25 years,
not necessarily for another 25 years is guaranteed. This explains why on 07 October
1977, TLA No. 43, as amended, was automatically renewed for another period of twenty
five (25) years to expire on 26 April 2002.30

PICOP’s interpretation of the 1969 Document cannot be sustained. PICOP’s claim that
the term of the warranty is not limited to fifty years, but that it extends to other fifty
years, perpetually, violates Section 2, Article XII of the Constitution which provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water
supply fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
Mr. Justice Dante O. Tinga’s interpretation of the 1969 Document is much more in
accord with the laws and the Constitution. What one cannot do directly, he cannot do
indirectly. Forest lands cannot be alienated in favor of private entities. Granting to
private entities, via a contract, a permanent, irrevocable, and exclusive possession of
and right over forest lands is tantamount to granting ownership thereof. PICOP, it
should be noted, claims nothing less than having exclusive, continuous and
uninterrupted possession of its concession areas, 31 where all other entrants are
illegal,32 and where so-called "illegal settlers and squatters" are apprehended. 33

IFMAs are production-sharing agreements concerning the development and utilization

of natural resources. As such, these agreements "may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law." Any superior "contract" requiring the State
to issue TLAs and IFMAs whenever they expire clearly circumvents Section 2, Article
XII of the Constitution, which provides for the only permissible schemes wherein the full
control and supervision of the State are not derogated: co-production, joint venture, or
production-sharing agreements within the time limit of twenty-five years, renewable for
another twenty-five years.

On its face, the 1969 Document was meant to expire on 26 April 2002, upon the
expiration of the expected extension of the original TLA period ending on 26 April 1977:

We further confirm that your tenure over the area and exclusive right to cut, collect and
remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said
period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.1avvphi1

Any interpretation extending the application of the 1969 Document beyond 26 April
2002 and any concession that may be granted to PICOP beyond the said date would
violate the Constitution, and no amount of legal hermeneutics can change that.
Attempts of PICOP to explain its way out of this Constitutional provision only led to
absurdities, as exemplified in the following excerpt from the oral arguments:

JUSTICE CARPIO:

The maximum trend of agreement to develop and utilize natural resources like forest
products is 25 years plus another 25 years or a total of 50 years correct?

ATTY. AGABIN

Yes, Your Honor.

JUSTICE CARPIO:

That is true for the 1987, 1973, 1935 Constitution, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

And it was renewed for another 25 years until 2002, the 50th year?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, could PICOP before the end of the 50th year let’s say in 2001, one year before the
expiration, could it have asked for an extension of another 25 years of its TLA
agreement[?]

ATTY. AGABIN:

I believe so, Your Honor.

JUSTICE CARPIO:

But the Constitution says, maximum of fifty years. How could you ask for another 25
years of its TLA.

ATTY. AGABIN:

Well, your Honor, we believe on a question like this, this Honorable Court should
balance the interest.

JUSTICE CARPIO:

The Constitution is very clear, you have only a maximum of 50 years, 25 plus another
25. PICOP could never have applied for an extension, for a third 25-year term whether
under the 1935 Constitution, the 1973 Constitution and the 1987 Constitution, correct?
ATTY. AGABIN:

Your Honor, except that we are invoking the warranty, the terms of the warranty….

JUSTICE CARPIO:

Can the warranty prevail over the Constitution?

ATTY. AGABIN:

Well, it is a vested right, your Honor.

JUSTICE CARPIO:

Yes, but whatever it is, can it prevail over the Constitution?

ATTY. AGABIN:

The Constitution itself provides that vested rights should be ….

JUSTICE CARPIO:

If it is not in violation of specific provision of the Constitution. The Constitution says, 25

years plus another 25 years, that’s the end of it. You mean to say that a President of the
Philippines can give somebody 1,000 years license?

ATTY. AGABIN:

Well, that is not our position, Your Honor. Because our position is that ….

JUSTICE CARPIO:

My question is, what is the maximum term, you said 50 years. So, my next question is,
can PICOP apply for an extension of another 25 years after 2002, the 50th year?

ATTY. AGABIN:

Yes, based on the contract of warranty, Your Honor, because the contract of
warranty….

JUSTICE CARPIO:

But in the PICOP license it is very clear, it says here, provision 28, it says the license
agreement is for a total of 50 years. I mean it is very simple, the President or even
Congress cannot pass a law extending the license, whatever kind of license to utilize
natural resources for more than fifty year[s]. I mean even the law cannot do that. It
cannot prevail over the Constitution. Is that correct, Counsel?

ATTY. AGABIN:

It is correct, Your Honor, except that in this case, what is actually our application is that
the law provides for the conversion of existing TLA into IFMA.

JUSTICE CARPIO:

So, they file the petition for conversion before the end of the 50th year for IFMA.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

But IFMA is the same, it is based on Section 2, Article 12 of the Constitution, develop
and utilize natural resources because as you said when the new constitution took effect
we did away with the old licensing regime, we have now co-production, a production
sharing, joint venture, direct undertaking but still the same developing and utilizing the
natural resources, still comes from section 2, Art. 12 of the Constitution. It is still a
license but different format now.

ATTY. AGABIN:

It is correct, Your Honor, except that the regimes of joint venture, co-production and
production sharing are what is referred to in the constitution, Your Honor, and still
covered…

JUSTICE CARPIO:

Yes, but it is covered by same 25 year[s], you mean to say people now can circumvent
the 50 year maximum term by calling their TLA as IFMA and after fifty years calling it
ISMA, after another 50 years call it MAMA.

ATTY. AGABIN:

Yes, Your Honor. Because…

JUSTICE CARPIO:

It can be done.

ATTY. AGABIN:
That is provided for by the department itself. 34

PICOP is, in effect, arguing that the DENR issued DAO No. 99-53 in order to provide a
way to circumvent the provisions of the Constitution limiting agreements for the
utilization of natural resources to a maximum period of fifty years. Official duties are,
however, disputably considered to be regularly performed, 35 and good faith is always
presumed.

DAO No. 99-53 was issued to change the means by which the government enters into
an agreement with private entities for the utilization of forest products. DAO No. 99-53 is
a late response to the change in the constitutional provisions on natural resources from
the 1973 Constitution, which allowed the granting of licenses to private entities, 36 to the
present Constitution, which provides for co-production, joint venture, or production-
sharing agreements as the permissible schemes wherein private entities may
participate in the utilization of forest products. Since the granting of timber licenses
ceased to be a permissible scheme for the participation of private entities under the
present Constitution, their operations should have ceased upon the issuance of DAO
No. 99-53, the rule regulating the schemes under the present Constitution. This would
be iniquitous to those with existing TLAs that would not have expired yet as of the
issuance of DAO No. 99-53, especially those with new TLAs that were originally set to
expire after 10 or even 20 or more years. The DENR thus inserted a provision in DAO
No. 99-53 allowing these TLA holders to finish the period of their TLAs, but this time as
IFMAs, without the rigors of going through a new application, which they have probably
just gone through a few years ago.

Such an interpretation would not only make DAO No. 99-53 consistent with the
provisions of the Constitution, but would also prevent possible discrimination against
new IFMA applicants:

ASSOCIATE JUSTICE DE CASTRO:

I ask this question because of your interpretation that the period of the IFMA, if your
TLA is converted into IFMA, would cover a new a fresh period of twenty-five years
renewable by another period of twenty-five years.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

Don’t you think that will, in effect, be invidious discrimination with respect to other
applicants if you are granted a fresh period of twenty-five years extendible to another
twenty-five years?

DEAN AGABIN:
I don’t think it would be, Your Honor, considering that the IFMA is different regime from
the TLA. And not only that, there are considerations of public health and ecology which
should come into play in this case, and which we had explained in our opening
statement and, therefore the provision of the Constitution on the twenty-five limits for
renewal of co-production, joint venture and production sharing agreements, should be
balanced with other values stated in the Constitution, like the value of balanced ecology,
which should be in harmony with the rhythm of nature, or the policy of forest
preservation in Article XII, Section 14 of the Constitution. These are all important policy
considerations which should be balanced against the term limits in Article II of the
Constitution.

ASSOCIATE JUSTICE DE CASTRO:

The provision of this Administrative Order regarding automatic conversion may be

reasonable, if, I want to know if you agree with me, if we limit this automatic conversion
to the remaining period of the TLA, because in that case there will be a valid ground to
make a distinction between those with existing TLA and those who are applying for the
first time for IFMA?

DEAN AGABIN:

Well, Your Honor, we beg to disagree, because as I said TLA’s are completely different
from IFMA. The TLA has no production sharing or co-production agreement or
condition. All that the licensee has to do is, to pay forest charges, taxes and other
impositions from the local and national government. On the other hand, the IFMAs
contained terms and conditions which are completely different, and that they either
impose co-production, production sharing or joint venture terms. So it’s a completely
different regime, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

Precisely, that is the reason why there should be an evaluation of what you mentioned
earlier of the development plan.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

So it will be reasonable to convert a TLA into an IFMA without considering the

development plan submitted by other applicants or the development plan itself of one
seeking conversion into IFMA if it will only be limited to the period, the original period of
the TLA. But once you go beyond the period of the TLA, then you will be, the DENR is I
think should evaluate the different proposals of the applicants if we are thinking of a
fresh period of twenty-five years, and which is renewable under the Constitution by
another twenty-five years. So the development plan will be important in this case, the
submission of the development plan of the different applicants must be considered. So I
don’t understand why you mentioned earlier that the development plan will later on be a
subject matter of negotiation between the IFMA grantee and the government. So it
seems that it will be too late in the day to discuss that if you have already converted the
TLA into IFMA or if the government has already granted the IFMA, and then it will later
on study the development plan, whether it is viable or not, or it is sustainable or not, and
whether the development plan of the different applicants are, are, which of the
development plan of the different applicants is better or more advantageous to the
government.37

PICOP insists that the alleged Presidential Warranty, having been signed on 29 July
1969, could not have possibly considered the limitations yet to be imposed by future
issuances, such as the 1987 Constitution. However, Section 3, Article XVIII of said
Constitution, provides:

Section 3. All existing laws, decrees, executive orders, proclamations, letters of

instructions, and other executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.

In the recent case Sabio v. Gordon,38 we ruled that "(t)he clear import of this provision is
that all existing laws, executive orders, proclamations, letters of instructions and other
executive issuances inconsistent or repugnant to the Constitution are repealed."

When a provision is susceptible of two interpretations, "the one that will render them
operative and effective and harmonious with other provisions of law" 39 should be
adopted. As the interpretations in the assailed Decision and in Mr. Justice Tinga’s
ponencia are the ones that would not make the subject Presidential Warranty
unconstitutional, these are what we shall adopt.

Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area
Would Not Be Altered Despite the Provision in the TLA that the DENR Secretary Can
Amend Said Boundaries

In the assailed Decision, we ruled that the 1969 Document cannot be considered a
contract that would bind the government regardless of changes in policy and the
demands of public interest and social welfare. PICOP claims this conclusion "did not
take into consideration that PICOP already had a valid and current TLA before the
contract with warranty was signed in 1969." 40 PICOP goes on: "The TLA is a license that
equips any TLA holder in the country for harvesting of timber. A TLA is signed by the
Secretary of the DANR now DENR. The Court ignored the significance of the need for
another contract with the Secretary of the DANR but this time with the approval of the
President of the Republic."41 PICOP then asks us: "If PICOP/BBLCI was only an
ordinary TLA holder, why will it go through the extra step of securing another contract
just to harvest timber when the same can be served by the TLA signed only by the
Secretary and not requiring the approval of the President of the Republic(?)" 42
The answer to this query is found in TLA No. 43 itself wherein, immediately after the
boundary lines of TLA No. 43 were established, the following conditions were given:

This license is granted to the said party of the second part upon the following express
conditions:

I. That authority is granted hereunder to the party of the second part 43 to cut,
collect or remove firewood or other minor forest products from the area
embraced in this license agreement except as hereinafter provided.

II. That the party of the first part44 may amend or alter the description of the
boundaries of the area covered by this license agreement to conform with official
surveys and that the decision of the party of the first part as to the exact location
of the said boundaries shall be final.

III. That if the party of the first part deems it necessary to establish on the ground
the boundary lines of the area granted under this license agreement, the party of
the second part shall furnish to the party of the first part or its representatives as
many laborers as it needs and all the expenses to be incurred on the work
including the wages of such laborers shall be paid by the party of the second
part.45

Thus, BBLCI needed an assurance that the boundaries of its concession area, as

established in TLA No. 43, as amended, would not be altered despite this
provision. Hence, BBLCI endeavored to obtain the 1969 Document, which provides:

We confirm that your Timber License Agreement No. 43, as amended (copy of which is
attached as Annex "A" hereof which shall form part and parcel of this warranty)
definitely establishes the boundary lines of your concession area which consists of
permanent forest lands with an aggregate area of 121,587 hectares and alienable or
disposable lands with an aggregate area of approximately 21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and
remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said
period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified
in your aforesaid amended Timber License Agreement No. 43 is hereby warranted
provided that pertinent laws, regulations and the terms and conditions of your license
agreement are observed.46

In Koa v. Court of Appeals,47 we ruled that a warranty is a collateral undertaking and is

merely part of a contract. As a collateral undertaking, it follows the principal wherever it
goes. When this was pointed out by the Solicitor General, PICOP changed its
designation of the 1969 Document from "Presidential Warranty" or "government
warranty" in all its pleadings prior to our Decision, to "contract with warranty" in its
Motion for Reconsideration. This, however, is belied by the statements in the 29 July
1969 Document, which refers to itself as "this warranty."

Re: Allegation That There Were Mutual Contract Considerations

Had the 29 July 1969 Document been intended as a contract, it could have easily said
so. More importantly, it could have clearly defined the mutual considerations of the
parties thereto. It could have also easily provided for the sanctions for the breach of the
mutual considerations specified therein. PICOP had vigorously argued that the 1969
Document was a contract because of these mutual considerations, apparently referring
to the following paragraph of the 1969 Document:

We are made to understand that your company is committed to support the first large
scale integrated wood processing complex hereinafter called: "The Project") and that
such support will be provided not only in the form of the supply of pulpwood and other
wood materials from your concession but also by making available funds generated out
of your own operations, to supplement PICOP’s operational surces (sic) of funds and
other financial arrangements made by him. In order that your company may provide
such support effectively, it is understood that you will call upon your stockholders to take
such steps as may be necessary to effect a unification of managerial, technical,
economic and manpower resources between your company and PICOP.1avvphi1

This provision hardly evinces a contract consideration (which, in PICOP’s interpretation,

is in exchange for the exclusive and perpetual tenure over 121,587 hectares of forest
land and 21,580 hectares of alienable and disposable lands). As elucidated by PICOP
itself in bringing up the Investment Incentives Act which we shall discuss later, and as
shown by the tenor of the 1969 Document, the latter document was more of a
conferment of an incentive for BBLCI’s investment rather than a contract creating
mutual obligations on the part of the government, on one hand, and BBLCI, on the
other. There was no stipulation providing for sanctions for breach if BBLCI’s being
"committed to support the first large scale integrated wood processing complex"
remains a commitment. Neither did the 1969 Document give BBLCI a period within
which to pursue this commitment.

According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is
understood to be, for each contracting party, the prestation or promise of a thing or
service by the other."48 Private investments for one’s businesses, while indeed
eventually beneficial to the country and deserving to be given incentives, are still
principally and predominantly for the benefit of the investors. Thus, the "mutual" contract
considerations by both parties to this alleged contract would be both for the benefit of
one of the parties thereto, BBLCI, which is not obligated by the 1969 Document to
surrender a share in its proceeds any more than it is already required by its TLA and by
the tax laws.
PICOP’s argument that its investments can be considered as contract consideration
derogates the rule that "a license or a permit is not a contract between the sovereignty
and the licensee or permittee, and is not a property in the constitutional sense, as to
which the constitutional proscription against the impairment of contracts may extend."
All licensees obviously put up investments, whether they are as small as a tricycle unit
or as big as those put up by multi-billion-peso corporations. To construe these
investments as contract considerations would be to abandon the foregoing rule, which
would mean that the State would be bound to all licensees, and lose its power to revoke
or amend these licenses when public interest so dictates.

The power to issue licenses springs from the State’s police power, known as "the most
essential, insistent and least limitable of powers, extending as it does to all the great
public needs."49 Businesses affecting the public interest, such as the operation of public
utilities and those involving the exploitation of natural resources, are mandated by law to
acquire licenses. This is so in order that the State can regulate their operations and
thereby protect the public interest. Thus, while these licenses come in the form of
"agreements," e.g., "Timber License Agreements," they cannot be considered contracts
under the non-impairment clause.50

PICOP found this argument "lame," arguing, thus:

43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an

egregious and monumental error.

44. The Decision could not dismiss as "preposterous" the mutual covenants in the
Presidential Warranty which calls for a huge investment of Php500 million at that time in
1969 out of which Php268,440,000 raised from domestic foreign lending institution to
establish the first large scale integrated wood processing complex in the Philippines.

45. The Decision puts up a lame explanation that "all licensees put up investments in
pursuing their business"

46. Now there are about a hundred timber licenses issued by the Government thru the
DENR, but these are ordinary timber licenses which involve the mere cutting of timber in
the concession area, and nothing else. Records in the DENR shows that no timber
licensee has put up an integrated large wood processing complex in the Philippines
except PICOP.51

PICOP thus argues on the basis of quantity, and wants us to distinguish between the
investment of the tricycle driver and that of the multi-billion corporation. However, not
even billions of pesos in investment can change the fact that natural resources and,
therefore, public interest are involved in PICOP’s venture, consequently necessitating
the full control and supervision by the State as mandated by the Constitution. Not even
billions of pesos in investment can buy forest lands, which is practically what PICOP is
asking for by interpreting the 1969 Document as a contract giving it perpetual and
exclusive possession over such lands. Among all TLA holders in the Philippines, PICOP
has, by far, the largest concession area at 143,167 hectares, a land area more than the
size of two Metro Manilas.52 How can it not expect to also have the largest investment?

Investment Incentives Act

PICOP then claims that the contractual nature of the 1969 Document was brought about
by its issuance in accordance with and pursuant to the Investment Incentives Act.
According to PICOP:

The conclusion in the Decision that to construe PICOP’s investments as a consideration

in a contract would be to stealthily render ineffective the principle that a license is not a
contract between the sovereignty and the licensee is so flawed since the contract with
the warranty dated 29 July 1969 was issued by the Government in accordance with and
pursuant to Republic Act No. 5186, otherwise known as "The Investment Incentives
Act."53

PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act:

Section 2. Declaration of Policy – To accelerate the sound development of the national

economy in consonance with the principles and objectives of economic nationalism, and
in pursuance of a planned, economically feasible and practicable dispersal of industries,
under conditions which will encourage competition and discharge monopolies, it is
hereby declared to be the policy of the state to encourage Filipino and foreign
investments, as hereinafter set out, in projects to develop agricultural, mining and
manufacturing industries which increase national income most at the least cost,
increase exports, bring about greater economic stability, provide more opportunities for
employment, raise the standards of living of the people, and provide for an equitable
distribution of wealth. It is further declared to be the policy of the state to welcome and
encourage foreign capital to establish pioneer enterprises that are capital intensive and
would utilize a substantial amount of domestic raw materials, in joint venture with
substantial Filipino capital, whenever available.

Section 4. Basic Rights and Guarantees. – All investors and enterprises are entitled to
the basic rights and guarantees provided in the constitution. Among other rights
recognized by the Government of the Philippines are the following:

xxxx

d) Freedom from Expropriation. – There shall be no expropriation by the government of

the property represented by investments or of the property of enterprises except for
public use or in the interest of national welfare and defense and upon payment of just
compensation. x x x.

e) Requisition of Investment. – There shall be no requisition of the property represented

by the investment or of the property of enterprises, except in the event of war or national
emergency and only for the duration thereof. Just compensation shall be determined
and paid either at the time of requisition or immediately after cessation of the state of
war or national emergency. Payments received as compensation for the requisitioned
property may be remitted in the currency in which the investment was originally made
and at the exchange rate prevailing at the time of remittance, subject to the provisions
of Section seventy-four of republic Act Numbered Two hundred sixty-five.

Section 2 speaks of the policy of the State to encourage Filipino and foreign
investments. It does not speak of how this policy can be implemented. Implementation
of this policy is tackled in Sections 5 to 12 of the same law, 54 which PICOP failed to
mention, and for a good reason. None of the 24 incentives enumerated therein relates
to, or even remotely suggests that, PICOP’s proposition that the 1969 Document is a
contract.

PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting
incentives to investors, whether included in the enumeration or not, would be an
implementation of this policy. However, it is presumed that whatever incentives may be
given to investors should be within the bounds of the laws and the Constitution. The
declaration of policy in Section 2 cannot, by any stretch of the imagination, be read to
provide an exception to either the laws or, heaven forbid, the Constitution. Exceptions
are never presumed and should be convincingly proven. Section 2 of the Investment
Incentives Act cannot be read as exempting investors from the Constitutional provisions
(1) prohibiting private ownership of forest lands; (2) providing for the complete control
and supervision by the State of exploitation activities; or (3) limiting exploitation
agreements to twenty-five years, renewable for another twenty-five years.

Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed
under the Constitution. Freedom from expropriation is granted under Section 9 of Article
III55 of the Constitution, while the provision on requisition is a negative restatement of
Section 6, Article XII.56

Refusal to grant perpetual and exclusive possession to PICOP of its concession area
would not result in the expropriation or requisition of PICOP’s property, as these forest
lands belong to the State, and not to PICOP. This is not changed by PICOP’s allegation
that:

Since it takes 35 years before the company can go back and harvest their residuals in a
logged-over area, it must be assured of tenure in order to provide an inducement for the
company to manage and preserve the residuals during their growth period. This is a
commitment of resources over a span of 35 years for each plot for each cycle. No
company will undertake the responsibility and cost involved in policing, preserving and
managing residual forest areas until it were sure that it had firm title to the timber. 57

The requirement for logging companies to preserve and maintain forest areas, including
the reforestation thereof, is one of the prices a logging company must pay for the
exploitation thereof. Forest lands are meant to be enjoyed by countless future
generations of Filipinos, and not just by one logging company. The requirements of
reforestation and preservation of the concession areas are meant to protect them, the
future generations, and not PICOP. Reforestation and preservation of the concession
areas are not required of logging companies so that they would have something to cut
again, but so that the forest would remain intact after their operations. That PICOP
would not accept the responsibility to preserve its concession area if it is not assured of
tenure thereto does not speak well of its corporate policies.

Conclusion

In sum, PICOP was not able to prove either of the two things it needed to prove to be
entitled to a Writ of Mandamus against the DENR Secretary. The 1969 Document is not
a contract recognized under the non-impairment clause and, even if we assume for the
sake of argument that it is, it did not enjoin the government to issue an IFMA in 2002
either. These are the essential elements in PICOP’s cause of action, and the failure to
prove the same warrants a dismissal of PICOP’s Petition for Mandamus, as not even
PICOP’s compliance with all the administrative and statutory requirements can save its
Petition now.

Whether PICOP Has Complied with the Statutory and Administrative Requirements for
the Conversion of the TLA to an IFMA

In the assailed Decision, our ruling was based on two distinct grounds, each one being
sufficient in itself for us to rule that PICOP was not entitled to a Writ of Mandamus: (1)
the 1969 Document, on which PICOP hinges its right to compel the issuance of an
IFMA, is not a contract; and (2) PICOP has not complied with all administrative and
statutory requirements for the issuance of an IFMA.

When a court bases its decision on two or more grounds, each is as authoritative as the
other and neither is obiter dictum.58 Thus, both grounds on which we based our ruling in
the assailed Decision would become judicial dictum, and would affect the rights and
interests of the parties to this case unless corrected in this Resolution on PICOP’s
Motion for Reconsideration. Therefore, although PICOP would not be entitled to a Writ
of Mandamus even if the second issue is resolved in its favor, we should nonetheless
resolve the same and determine whether PICOP has indeed complied with all
administrative and statutory requirements for the issuance of an IFMA.

While the first issue (on the nature of the 1969 Document) is entirely legal, this second
issue (on PICOP’s compliance with administrative and statutory requirements for the
issuance of an IFMA) has both legal and factual sub-issues. Legal sub-issues include
whether PICOP is legally required to (1) consult with and acquire an approval from the
Sanggunian concerned under Sections 26 and 27 of the Local Government Code; and
(2) acquire a Certification from the National Commission on Indigenous Peoples (NCIP)
that the concession area does not overlap with any ancestral domain. Factual sub-
issues include whether, at the time it filed its Petition for Mandamus, PICOP had
submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation
Plan and whether PICOP had paid all forest charges.
For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial
court, especially when upheld by the Court of Appeals, deserve great weight. However,
deserving of even greater weight are the factual findings of administrative agencies that
have the expertise in the area of concern. The contentious facts in this case relate to
the licensing, regulation and management of forest resources, the determination of
which belongs exclusively to the DENR:

SECTION 4. Mandate. – The Department shall be the primary government agency

responsible for the conservation, management, development and proper use of the
country’s environment and natural resources, specifically forest and grazing lands,
mineral resources, including those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all natural resources as may be
provided for by law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of Filipinos. 59

When parties file a Petition for Certiorari against judgments of administrative agencies
tasked with overseeing the implementation of laws, the findings of such administrative
agencies are entitled to great weight. In the case at bar, PICOP could not have filed a
Petition for Certiorari, as the DENR Secretary had not yet even determined whether
PICOP should be issued an IFMA. As previously mentioned, when PICOP’s application
was brought to a standstill upon the evaluation that PICOP had yet to comply with the
requirements for the issuance of an IFMA, PICOP refused to attend further meetings
with the DENR and instead filed a Petition for Mandamus against the latter. By jumping
the gun, PICOP did not diminish the weight of the DENR Secretary’s initial
determination.

Forest Protection and Reforestation Plans

The Performance Evaluation Team tasked to appraise PICOP’s performance on its TLA
No. 43 found that PICOP had not submitted its Five-Year Forest Protection Plan and its
Seven-Year Reforestation Plan.60

In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28
August 2000 and marked as Exhibit L in the trial court, there was a reference to a Ten-
Year Sustainable Forest Management Plan (SFMP), in which a Five-Year Forest
Protection Plan and a Seven-Year Reforestation Plan were allegedly incorporated.
PICOP submitted a machine copy of a certified photocopy of pages 50-67 and 104-110
of this SFMP in its Motion for Reconsideration. PICOP claims that the existence of this
SFMP was repeatedly asserted during the IFMA application process. 61

Upon examination of the portions of the SFMP submitted to us, we cannot help but
notice that PICOP’s concept of forest protection is the security of the area against
"illegal" entrants and settlers. There is no mention of the protection of the wildlife
therein, as the focus of the discussion of the silvicultural treatments and the SFMP itself
is on the protection and generation of future timber harvests. We are particularly
disturbed by the portions stating that trees of undesirable quality shall be removed.
However, when we required the DENR Secretary to comment on PICOP’s Motion for
Reconsideration, the DENR Secretary did not dispute the existence of this SFMP, or
question PICOP’s assertion that a Ten-Year Forest Protection Plan and a Ten-Year
Reforestation Plan are already incorporated therein. Hence, since the agency tasked to
determine compliance with IFMA administrative requirements chose to remain silent in
the face of allegations of compliance, we are constrained to withdraw our
pronouncement in the assailed Decision that PICOP had not submitted a Five-Year
Forest Protection Plan and a Seven-Year Reforestation Plan for its TLA No. 43. As
previously mentioned, the licensing, regulation and management of forest resources are
the primary responsibilities of the DENR.62

The compliance discussed above is, of course, only for the purpose of determining
PICOP’s satisfactory performance as a TLA holder, and covers a period within the
subsistence of PICOP’s TLA No. 43. This determination, therefore, cannot prohibit the
DENR from requiring PICOP, in the future, to submit proper forest protection and
reforestation plans covering the period of the proposed IFMA.

Forest Charges

In determining that PICOP did not have unpaid forest charges, the Court of Appeals
relied on the assumption that if it were true that PICOP had unpaid forest charges, it
should not have been issued an approved Integrated Annual Operation Plan (IAOP) for
the year 2001-2002 by Secretary Alvarez himself. 63

In the assailed Decision, we held that the Court of Appeals had been selective in its
evaluation of the IAOP, as it disregarded the part thereof that shows that the IAOP was
approved subject to several conditions, not the least of which was the submission of
proof of the updated payment of forest charges from April 2001 to June 2001. 64 We also
held that even if we considered for the sake of argument that the IAOP should not have
been issued if PICOP had existing forestry accounts, the issuance of the IAOP could
not be considered proof that PICOP had paid the same. Firstly, the best evidence of
payment is the receipt thereof. PICOP has not presented any evidence that such
receipts were lost or destroyed or could not be produced in court. 65 Secondly, the
government cannot be estopped by the acts of its officers. If PICOP has been issued an
IAOP in violation of the law, allegedly because it may not be issued if PICOP had
existing forestry accounts, the government cannot be estopped from collecting such
amounts and providing the necessary sanctions therefor, including the withholding of
the IFMA until such amounts are paid.

We therefore found that, as opposed to the Court of Appeals’ findings, which were
based merely on estoppel of government officers, the positive and categorical evidence
presented by the DENR Secretary was more convincing with respect to the issue of
payment of forestry charges:

1. Forest Management Bureau (FMB) Senior Forest Management Specialist

(SFMS) Ignacio M. Evangelista testified that PICOP had failed to pay its regular
 forest charges covering the period from 22 September 2001 to 26 April 2002 in
the total amount of ₱15,056,054.0566 PICOP also allegedly paid late most of its
forest charges from 1996 onwards, by reason of which, PICOP is liable for a
surcharge of 25% per annum on the tax due and interest of 20% per annum
which now amounts to ₱150,169,485.02. 67 Likewise, PICOP allegedly had
overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00 as of 30
August 2002.68 Summing up the testimony, therefore, it was alleged that PICOP
had unpaid and overdue forest charges in the sum of ₱167,592,440.90 as of 10
August 2002.69

2. Collection letters were sent to PICOP, but no official receipts are extant in the
DENR record in Bislig City evidencing payment of the overdue amount stated in
the said collection letters.70 There were no official receipts for the period covering
22 September 2001 to 26 April 2002.

We also considered these pieces of evidence more convincing than the other ones
presented by PICOP:

1. PICOP presented the certification of Community Environment and Natural

Resources Office (CENRO) Officer Philip A. Calunsag, which refers only to
PICOP’s alleged payment of regular forest charges covering the period from 14
September 2001 to 15 May 2002.71 We noted that it does not mention similar
payment of the penalties, surcharges and interests that PICOP incurred in paying
late several forest charges, which fact was not rebutted by PICOP.

2. The 27 May 2002 Certification by CENRO Calunsag specified only the period
covering 14 September 2001 to 15 May 2002 and the amount of P53,603,719.85
paid by PICOP without indicating the corresponding volume and date of
production of the logs. This is in contrast to the findings of SFMS Evangelista,
which cover the period from CY 1996 to 30 August 2002 and includes penalties,
interests, and surcharges for late payment pursuant to DAO 80, series of 1987.

3. The 21 August 2002 PICOP-requested certification issued by Bill Collector

Amelia D. Arayan, and attested to by CENRO Calunsag himself, shows that
PICOP paid only regular forest charges for its log production covering 1 July
2001 to 21 September 2001. However, there were log productions after 21
September 2001, the regular forest charges for which have not been paid,
amounting to ₱15,056,054.05.72 The same certification shows delayed payment
of forest charges, thereby corroborating the testimony of SFMS Evangelista and
substantiating the imposition of penalties and surcharges.

In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to
an office that has nothing to do with the collection of forest charges, and that he based
his testimony on the Memoranda of Forest Management Specialist II (FMS II) Teofila
Orlanes and DENR, Bislig City Bill Collector Amelia D. Arayan, neither of whom was
presented to testify on his or her Memorandum. PICOP also submitted an Addendum to
Motion for Reconsideration, wherein it appended certified true copies of CENRO
Summaries with attached Official Receipts tending to show that PICOP had paid a total
of ₱81,184,747.70 in forest charges for 10 January 2001 to 20 December 2002,
including the period during which SFMS Evangelista claims PICOP did not pay forest
charges (22 September 2001 to 26 April 2002).

Before proceeding any further, it is necessary for us to point out that, as with our ruling
on the forest protection and reforestation plans, this determination of compliance with
the payment of forest charges is exclusively for the purpose of determining PICOP’s
satisfactory performance on its TLA No. 43. This cannot bind either party in a possible
collection case that may ensue.

An evaluation of the DENR Secretary’s position on this matter shows a heavy reliance
on the testimony of SFMS Evangelista, making it imperative for us to strictly scrutinize
the same with respect to its contents and admissibility.

PICOP claims that SFMS Evangelista’s office has nothing to do with the collection of
forest charges. According to PICOP, the entity having administrative jurisdiction over it
is CENRO, Bislig City by virtue of DENR Administrative Order No. 96-36, dated 20
November 1996, which states:

1. In order for the DENR to be able to exercise closer and more effective supervision,
management and control over the forest resources within the areas covered by TLA No.
43, PTLA No. 47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and, at the
same time, provide greater facility in the delivery of DENR services to various publics,
the aforesaid forest holdings of PRI are hereby placed under the exclusive jurisdiction of
DENR Region No. XIII with the CENR Office at Bislig, Surigao del Sur, as directly
responsible thereto. x x x.

We disagree. Evangelista is an SFMS assigned at the Natural Forest Management

Division of the FMB, DENR. In Evangelista’s aforementioned affidavit submitted as part
of his direct examination, Evangelista enumerated his duties and functions as SFMS:

1. As SFMS, I have the following duties and functions:

a) To evaluate and act on cases pertaining to forest management referred

to in the Natural forest Management Division;

b) To monitor, verify and validate forest management and related activities

by timber licences as to their compliance to approved plans and programs;

c) To conduct investigation and verification of compliance by timber

licenses/permittees to existing DENR rules and regulations;

d) To gather field data and information to be used in the formulation of

forest policies and regulations; and
 e) To perform other duties and responsibilities as may be directed by
superiors.73

PICOP also alleges that the testimony of SFMS Evangelista was based on the
aforementioned Memoranda of Orlanes and Arayan and that, since neither
Orlanes nor Arayan was presented as a witness, SFMS Evangelista’s testimony
should be deemed hearsay. SFMS Evangelista’s 1 October 2002
Affidavit,74 which was offered as part of his testimony, provides:

2. Sometime in September, 2001 the DENR Secretary was furnished a copy of

forest Management Specialist II (FMS II) Teofila L. Orlanes’ Memorandum dated
September 24, 2001 concerning unopaid forest charges of PICOP. Attached to
the said Memorandum was a Memorandum dated September 19, 2001 of Amelia
D. Arayan, Bill collector of the DENR R13-14, Bislig City. Copies of the said
Memoranda are attached as Annexes 1 and 2, respectively.

3. The said Memoranda were referred to the FMB Director for appropriate action.

4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to

Region 13 to gather forestry-related data and validate the report contained in the
Memoranda of Ms. Orlanes and Arayan.

5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of

my Travel Order is attached as Annex 3.

6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO
Officer Philip A. Calunsag and requested him to make available to me the
records regarding the forest products assessments of PICOP.

7. After I was provided with the requested records, I evaluated and collected the
data.

8. After the evaluation, I found that the unpaid forest charges adverted to in the
Memoranda of Mr. Orlanes and Arayan covering the period from May 8, 2001 to
July 7, 2001 had already been paid but late. I further found out that PICOP had
not paid its forest charges covering the period from September 22, 2001 to April
26, 2002 in the total amount of ₱15,056,054.05.

9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some
of its forest charges in 1996 and consistently failed to pay late its forest charges
from 1997 up to the present time.

10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a),
Section 10 of BIR revenue Regulations No. 2-81 dated November 18, 1980,
PICOP is mandated to pay a surcharge of 25% per annum of the tax due and
interest of 20% per annum for late payment of forest charges.
 11. The overdue unpaid forest charges of PICOP as shown in the attached
tabulation marked as Annex 4 hereof is ₱150,169,485.02. Likewise, PICOP has
overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00 from 1996
to the present.

12. In all, PICOP has an outstanding and overdue total obligation of

₱167,592,440.90 as of August 30, 2002 based on the attached tabulation which
is marked as Annex 5 hereof.75

Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan.
On the contrary, he traveled to Surigao del Sur in order to verify the contents of these
Memoranda. SFMS Evangelista, in fact, revised the findings therein, as he discovered
that certain forest charges adverted to as unpaid had already been paid.

This does not mean, however, that SFMS Evangelista’s testimony was not hearsay. A
witness may testify only on facts of which he has personal knowledge; that is, those
derived from his perception, except in certain circumstances allowed by the
Rules.76 Otherwise, such testimony is considered hearsay and, hence, inadmissible in
evidence.77

SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan,
nevertheless relied on records, the preparation of which he did not participate
in.78 These records and the persons who prepared them were not presented in court,
either. As such, SFMS Evangelista’s testimony, insofar as he relied on these records,
was on matters not derived from his own perception, and was, therefore, hearsay.

Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as
an exception to the hearsay rule, cannot excuse the testimony of SFMS Evangelista.
Section 44 provides:

SEC. 44. Entries in official records. – Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex,79 we enumerated the following requisites for the admission of entries
in official records as an exception to the hearsay rule: (1) the entries were made by a
public officer or a private person in the performance of a duty; (2) the performance of
the duty is especially enjoined by law; (3) the public officer or the private person had
sufficient knowledge of the facts stated by him, which must have been acquired by him
personally or through official information.

The presentation of the records themselves would, therefore, have been admissible as
an exception to the hearsay rule even if the public officer/s who prepared them
was/were not presented in court, provided the above requisites could be adequately
proven. In the case at bar, however, neither the records nor the persons who prepared
them were presented in court. Thus, the above requisites cannot be sufficiently proven.
Also, since SFMS Evangelista merely testified based on what those records contained,
his testimony was hearsay evidence twice removed, which was one step too many to be
covered by the official-records exception to the hearsay rule.

SFMS Evangelista’s testimony of nonpayment of forest charges was, furthermore,

based on his failure to find official receipts corresponding to billings sent to PICOP. As
stated above, PICOP attached official receipts in its Addendum to Motion for
Reconsideration to this Court. While this course of action is normally irregular in judicial
proceedings, we merely stated in the assailed Decision that "the DENR Secretary has
adequately proven that PICOP has, at this time, failed to comply with administrative and
statutory requirements for the conversion of TLA No. 43 into an IFMA," 80 and that "this
disposition confers another chance to comply with the foregoing requirements." 81

In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid
forestry charges, at least for the purpose of determining compliance with the IFMA
requirements.

NCIP Certification

The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act
No. 8371, which requires prior certification from the NCIP that the areas affected do not
overlap with any ancestral domain before any IFMA can be entered into by the
government. According to the Court of Appeals, Section 59 should be interpreted to
refer to ancestral domains that have been duly established as such by the continuous
possession and occupation of the area concerned by indigenous peoples since time
immemorial up to the present. The Court of Appeals held that PICOP had acquired
property rights over TLA No. 43 areas, being in exclusive, continuous and uninterrupted
possession and occupation of these areas since 1952 up to the present.

In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the
Court of Appeals ruling defies the settled jurisprudence we have mentioned earlier, that
a TLA is neither a property nor a property right, and that it does not create a vested
right.82

Secondly, the Court of Appeals’ resort to statutory construction is misplaced, as Section

59 of Republic Act No. 8379 is clear and unambiguous:

SEC. 59. Certification Precondition. – All departments and other governmental agencies
shall henceforth be strictly enjoined from issuing, renewing or granting any concession,
license or lease, or entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap with any ancestral
domain. Such certification shall only be issued after a field-based investigation is
conducted by the Ancestral Domains Office of the area concerned: Provided, That no
certification shall be issued by the NCIP without the free and prior informed and written
consent of the ICCs/IPs concerned: Provided, further, That no department, government
agency or government-owned or controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for
a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in
accordance with this Act, any project that has not satisfied the requirement of this
consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371
by invoking the definition of Ancestral Domains in Section 3(a) thereof, wherein the
possesssion by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) must
have been continuous to the present. However, we noted the exception found in the
very same sentence invoked by PICOP:

a) Ancestral domains – Subject to Section 56 hereof, refers to all areas generally

belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural,
and other lands individually owned whether alienable and disposable or otherwise,
hunting grounds, burial grounds, worship areas, bodies of water, mineral and other
natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs
but from which they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators;

Ancestral domains, therefore, remain as such even when possession or occupation of

these areas has been interrupted by causes provided under the law, such as voluntary
dealings entered into by the government and private individuals/corporations.
Consequently, the issuance of TLA No. 43 in 1952 did not cause the ICCs/IPs to lose
their possession or occupation over the area covered by TLA No. 43.

Thirdly, we held that it was manifestly absurd to claim that the subject lands must first
be proven to be part of ancestral domains before a certification that the lands are not
part of ancestral domains can be required, and invoked the separate opinion of now
Chief Justice Reynato Puno in Cruz v. Secretary of DENR 83:

As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the
issuance of any concession, license or agreement over natural resources, that a
certification be issued by the NCIP that the area subject of the agreement does not lie
within any ancestral domain. The provision does not vest the NCIP with power over the
other agencies of the State as to determine whether to grant or deny any concession or
license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs
have been informed of the agreement and that their consent thereto has been obtained.
Note that the certification applies to agreements over natural resources that do not
necessarily lie within the ancestral domains. For those that are found within the said
domains, Sections 7(b) and 57 of the IPRA apply.

PICOP rejects the entire disposition of this Court on the matter, relying on the following
theory:

84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic
conversion of TLA 43 to IFMA.

First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere
continuation of the harvesting process in an area that PICOP had been managing,
conserving and reforesting for the last 50 years since 1952. Hence any pending
application for a CADT within the area, cannot affect much less hold back the automatic
conversion. That the government now wishes to change the tenurial system to an IFMA
could not change the PICOP project, in existence and operating for the last 30 (sic)
years, into a new one.84

PICOP’s position is anything but clear. What is clearly provided for in Section 59 is that
it covers "issuing, renewing or granting (of) any concession, license or lease, or entering
into any production sharing agreement." PICOP is implying that, when the government
changed the tenurial system to an IFMA, PICOP’s existing TLA would just be upgraded
or modified, but would be the very same agreement, hence, dodging the inclusion in the
word "renewing." However, PICOP is conveniently leaving out the fact that its TLA
expired in 2002. If PICOP really intends to pursue the argument that the conversion of
the TLA into an IFMA would not create a new agreement, but would only be a
modification of the old one, then it should be willing to concede that the IFMA expired as
well in 2002. An automatic modification would not alter the terms and conditions of the
TLA except when they are inconsistent with the terms and conditions of an IFMA.
Consequently, PICOP’s concession period under the renewed TLA No. 43, which is
from the year 1977 to 2002, would remain the same.

PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but
refute the same whenever the theory is damaging to it. In the same way, PICOP cannot
claim that the alleged Presidential Warranty is "renewable for other 25 years" and later
on claim that what it is asking for is not a renewal. Extensions of agreements must
necessarily be included in the term renewal. Otherwise, the inclusion of "renewing" in
Section 59 would be rendered inoperative.

PICOP further claims:

85. Verily, in interpreting the term "held under claim of ownership," the Supreme Court
could not have meant to include claims that had just been filed and not yet recognized
under the provisions of DENR Administrative Order No. 2 Series of 1993, nor to any
other community / ancestral domain program prior to R.A. 8371.

xxxx
87. One can not imagine the terrible damage and chaos to the country, its economy, its
people and its future if a mere claim filed for the issuance of a CADC or CADT will
already provide those who filed the application, the authority or right to stop the renewal
or issuance of any concession, license or lease or any production-sharing agreement.
The same interpretation will give such applicants through a mere application the right to
stop or suspend any project that they can cite for not satisfying the requirements of the
consultation process of R.A. 8371. If such interpretation gets enshrined in the statures
of the land, the unscrupulous and the extortionists can put any ongoing or future project
or activity to a stop in any part of the country citing their right from having filed an
application for issuance of a CADC or CADT claim and the legal doctrine established by
the Supreme Court in this PICOP case.85

We are not sure whether PICOP’s counsels are deliberately trying to mislead us, or are
just plainly ignorant of basic precepts of law. The term "claim" in the phrase "claim of
ownership" is not a document of any sort. It is an attitude towards something. The
phrase "claim of ownership" means "the possession of a piece of property with the
intention of claiming it in hostility to the true owner." 86 It is also defined as "a party’s
manifest intention to take over land, regardless of title or right." 87 Other than in Republic
Act No. 8371, the phrase "claim of ownership" is thoroughly discussed in issues relating
to acquisitive prescription in Civil Law.

Before PICOP’s counsels could attribute to us an assertion that a mere attitude or

intention would stop the renewal or issuance of any concession, license or lease or any
production-sharing agreement, we should stress beforehand that this attitude or
intention must be clearly shown by overt acts and, as required by Section 3(a), should
have been in existence "since time immemorial, continuously to the present except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings entered into by
government and private individuals/corporations."

Another argument of PICOP involves the claim itself that there was no overlapping:

Second, there could be no overlapping with any Ancestral Domain as proven by the
evidence presented and testimonies rendered during the hearings in the Regional Trial
Court. x x x.

x x x x.

88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR
Undersecretary for Field Operations had recommended another 11 applications for
issuance of CADCs. None of the CADCs overlap the TLA 43 area.

89. However former DENR Secretary Alvarez, in a memorandum dated 13 September,

2002 addressed to PGMA, insisted that PICOP had to comply with the requirement to
secure a Free and Prior Informed Concent because CADC 095 was issued covering
17,112 hectares of TLA 43.
90. This CADC 095 is a fake CADC and was not validly released by the DENR. While
the Legal Department of the DENR was still in the process of receiving the filings for
applicants and the oppositors to the CADC application, PICOP came across filed copies
of a CADC 095 with the PENRO of Davao Oriental as part of their application for a
Community Based Forest Management Agreement (CBFMA). Further research came
across the same group filing copies of the alleged CADC 095 with the Mines and
Geosciences Bureau in Davao City for a mining agreement application. The two
applications had two different versions of the CADCs second page. One had Mr. Romeo
T. Acosta signing as the Social reform Agenda Technical Action Officer, while the other
had him signing as the Head, Community-Based Forest Management Office. One had
the word "Eight" crossed out and "Seven" written to make it appear that the CADC was
issued on September 25, 1997, the other made it appear that there were no alterations
and the date was supposed to be originally 25 September 1997.

What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP
that there was no overlapping with any Ancestral Domain. PICOP cannot claim that the
DENR gravely abused its discretion for requiring this Certification, on the ground that
there was no overlapping. We reiterate that it is manifestly absurd to claim that the
subject lands must first be proven to be part of ancestral domains before a certification
that they are not can be required. As discussed in the assailed Decision, PICOP did not
even seek any certification from the NCIP that the area covered by TLA No. 43, subject
of its IFMA conversion, did not overlap with any ancestral domain. 88

Sanggunian Consultation and Approval

While PICOP did not seek any certification from the NCIP that the former’s concession
area did not overlap with any ancestral domain, PICOP initially sought to comply with
the requirement under Sections 26 and 27 of the Local Government Code to procure
prior approval of the Sanggunians concerned. However, only one of the many provinces
affected approved the issuance of an IFMA to PICOP. Undaunted, PICOP nevertheless
submitted to the DENR the purported resolution 89 of the Province of Surigao del Sur
indorsing the approval of PICOP’s application for IFMA conversion, apparently hoping
either that the disapproval of the other provinces would go unnoticed, or that the
Surigao del Sur approval would be treated as sufficient compliance.

Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC
and the Court of Appeals, despite the repeated assertions thereof by the Solicitor
General. When we pointed out in the assailed Decision that the approval must be by all
the Sanggunians concerned and not by only one of them, PICOP changed its theory of
the case in its Motion for Reconsideration, this time claiming that they are not required
at all to procure Sanggunian approval.

Sections 2(c), 26 and 27 of the Local Government Code provide:

SEC. 2. x x x.
xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
nongovernmental and people’s organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.

SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological

Balance. – It shall be the duty of every national agency or government-owned or
controlled corporation authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the
project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.

SEC. 27. Prior Consultations Required. – No project or program shall be implemented

by government authorities unless the consultations mentioned in Sections 2(c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.

As stated in the assailed Decision, the common evidence of the DENR Secretary and
PICOP, namely, the 31 July 2001 Memorandum of Regional Executive Director (RED)
Elias D. Seraspi, Jr., enumerated the local government units and other groups which
had expressed their opposition to PICOP’s application for IFMA conversion:

7. During the conduct of the performance evaluation of TLA No. 43 issues complaints
against PRI were submitted thru Resolutions and letters. It is important that these are
included in this report for assessment of what are their worth, viz:

xxxx

7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and
Barangay Tribal Council of Simulao, Boston, Davao Oriental (ANNEX F) opposing the
conversion of TLA No. 43 into IFMA over the 17,112 hectares allegedly covered with
CADC No. 095.

7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan
Tribal Council of Elders (BBMTCE) strongly demanding none renewal of PICOP TLA.
They claim to be the rightful owner of the area it being their alleged ancestral land.
7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting
not to renew TLA 43 over the 900 hectares occupied by them.

7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del
Sur not to grant the conversion of TLA 43 citing the plight of former employees of PRI
who were forced to enter and farm portion of TLA No. 43, after they were laid off.

7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang
Panglungsod of Bislig City (ANNEXES K & L) requesting to exclude the area of TLA No.
43 for watershed purposes.

7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang
Panglungsod of Bislig City opposing the conversion of TLA 43 to IFMA for the reason
that IFMA do not give revenue benefits to the City. 90

PICOP had claimed that it complied with the Local Government Code requirement of
obtaining prior approval of the Sanggunian concerned by submitting a purported
resolution91 of the Province of Surigao del Sur indorsing the approval of PICOP’s
application for IFMA conversion. We ruled that this cannot be deemed sufficient
compliance with the foregoing provision. Surigao del Sur is not the only province
affected by the area covered by the proposed IFMA. As even the Court of Appeals
found, PICOP’s TLA No. 43 traverses the length and breadth not only of Surigao del Sur
but also of Agusan del Sur, Compostela Valley and Davao Oriental. 92

On Motion for Reconsideration, PICOP now argues that the requirement under Sections
26 and 27 does not apply to it:

97. PICOP is not a national agency. Neither is PICOP government owned or controlled.
Thus Section 26 does not apply to PICOP.

98. It is very clear that Section 27 refers to projects or programs to be implemented by

government authorities or government-owned and controlled corporations. PICOP’s
project or the automatic conversion is a purely private endevour. First the PICOP project
has been implemented since 1969. Second, the project was being implemented by
private investors and financial institutions.

99. The primary government participation is to warrant and ensure that the PICOP
project shall have peaceful tenure in the permanent forest allocated to provide raw
materials for the project. To rule now that a project whose foundations were
commenced as early as 1969 shall now be subjected to a 1991 law is to apply the law
retrospectively in violation of Article 4 of the Civil Code that laws shall not be applied
retroactively.

100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not
among those devolved function from the National Government / DENR to the local
government unit. Under its Section 03, the devolved function cover only:
 a) Community Based forestry projects.

b) Communal forests of less than 5000 hectares

c) Small watershed areas which are sources of local water supply. 93

We have to remind PICOP again of the contents of Section 2, Article XII of the
Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

All projects relating to the exploration, development and utilization of natural resources
are projects of the State. While the State may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at
least sixty per centum of whose capital is owned by these citizens, such as PICOP, the
projects nevertheless remain as State projects and can never be purely private
endeavors.

Also, despite entering into co-production, joint venture, or production-sharing

agreements, the State remains in full control and supervision over such projects.
PICOP, thus, cannot limit government participation in the project to being merely its
bouncer, whose primary participation is only to "warrant and ensure that the PICOP
project shall have peaceful tenure in the permanent forest allocated to provide raw
materials for the project."

PICOP is indeed neither a national agency nor a government-owned or controlled

corporation. The DENR, however, is a national agency and is the national agency
prohibited by Section 27 from issuing an IFMA without the prior approval of the
Sanggunian concerned. As previously discussed, PICOP’s Petition for Mandamus can
only be granted if the DENR Secretary is required by law to issue an IFMA. We,
however, see here the exact opposite: the DENR Secretary was actually prohibited by
law from issuing an IFMA, as there had been no prior approval by all the other
Sanggunians concerned.
As regards PICOP’s assertion that the application to them of a 1991 law is in violation of
the prohibition against the non-retroactivity provision in Article 4 of the Civil Code, we
have to remind PICOP that it is applying for an IFMA with a term of 2002 to 2027.
Section 2, Article XII of the Constitution allows exploitation agreements to last only "for a
period not exceeding twenty-five years, renewable for not more than twenty-five years."
PICOP, thus, cannot legally claim that the project’s term started in 1952 and extends all
the way to the present.

Finally, the devolution of the project to local government units is not required before
Sections 26 and 27 would be applicable. Neither Section 26 nor 27 mentions such a
requirement. Moreover, it is not only the letter, but more importantly the spirit of
Sections 26 and 27, that shows that the devolution of the project is not required. The
approval of the Sanggunian concerned is required by law, not because the local
government has control over such project, but because the local government has the
duty to protect its constituents and their stake in the implementation of the project.
Again, Section 26 states that it applies to projects that "may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, rangeland, or forest
cover, and extinction of animal or plant species." The local government should thus
represent the communities in such area, the very people who will be affected by
flooding, landslides or even climatic change if the project is not properly regulated, and
who likewise have a stake in the resources in the area, and deserve to be adequately
compensated when these resources are exploited.

Indeed, it would be absurd to claim that the project must first be devolved to the local
government before the requirement of the national government seeking approval from
the local government can be applied. If a project has been devolved to the local
government, the local government itself would be implementing the project. That the
local government would need its own approval before implementing its own project is
patently silly.

EPILOGUE AND DISPOSITION

PICOP’c cause of action consists in the allegation that the DENR Secretary, in not
issuing an IFMA, violated its constitutional right against non-impairment of contracts.
We have ruled, however, that the 1969 Document is not a contract recognized under
the non-impairment clause, much less a contract specifically enjoining the DENR
Secretary to issue the IFMA. The conclusion that the 1969 Document is not a contract
recognized under the non-impairment clause has even been disposed of in another
case decided by another division of this Court, PICOP Resources, Inc. v. Base Metals
Mineral Resources Corporation,94 the Decision in which case has become final and
executory. PICOP’s Petition for Mandamus should, therefore, fail.

Furthermore, even if we assume for the sake of argument that the 1969 Document is a
contract recognized under the non-impairment clause, and even if we assume for the
sake of argument that the same is a contract specifically enjoining the DENR Secretary
to issue an IFMA, PICOP’s Petition for Mandamus must still fail. The 1969 Document
expressly states that the warranty as to the tenure of PICOP is "subject to compliance
with constitutional and statutory requirements as well as with existing policy on timber
concessions." Thus, if PICOP proves the two above-mentioned matters, it still has to
prove compliance with statutory and administrative requirements for the conversion of
its TLA into an IFMA.

While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP
had not submitted the required forest protection and reforestation plans, and that (2)
PICOP had unpaid forestry charges, thus effectively ruling in favor of PICOP on all
factual issues in this case, PICOP still insists that the requirements of an NCIP
certification and Sanggunian consultation and approval do not apply to it. To affirm
PICOP’s position on these matters would entail nothing less than rewriting the
Indigenous Peoples’ Rights Act and the Local Government Code, an act simply beyond
our jurisdiction.

WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED.

G.R. No. 193007               July 19, 2011

RENATO V. DIAZ and AURORA MA. F. TIMBOL, Petitioners,

vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL
REVENUE, Respondents.

DECISION

ABAD, J.:

May toll fees collected by tollway operators be subjected to value- added tax?

The Facts and the Case

Petitioners Renato V. Diaz and Aurora Ma. F. Timbol (petitioners) filed this petition for
declaratory relief1 assailing the validity of the impending imposition of value-added tax
(VAT) by the Bureau of Internal Revenue (BIR) on the collections of tollway operators.

Petitioners claim that, since the VAT would result in increased toll fees, they have an
interest as regular users of tollways in stopping the BIR action. Additionally, Diaz claims
that he sponsored the approval of Republic Act 7716 (the 1994 Expanded VAT Law or
EVAT Law) and Republic Act 8424 (the 1997 National Internal Revenue Code or the
NIRC) at the House of Representatives. Timbol, on the other hand, claims that she
served as Assistant Secretary of the Department of Trade and Industry and consultant
of the Toll Regulatory Board (TRB) in the past administration.

Petitioners allege that the BIR attempted during the administration of President Gloria
Macapagal-Arroyo to impose VAT on toll fees. The imposition was deferred, however, in
view of the consistent opposition of Diaz and other sectors to such move. But, upon
President Benigno C. Aquino III’s assumption of office in 2010, the BIR revived the idea
and would impose the challenged tax on toll fees beginning August 16, 2010 unless
judicially enjoined.

Petitioners hold the view that Congress did not, when it enacted the NIRC, intend to
include toll fees within the meaning of "sale of services" that are subject to VAT; that a
toll fee is a "user’s tax," not a sale of services; that to impose VAT on toll fees would
amount to a tax on public service; and that, since VAT was never factored into the
formula for computing toll fees, its imposition would violate the non-impairment clause of
the constitution.

On August 13, 2010 the Court issued a temporary restraining order (TRO), enjoining the
implementation of the VAT. The Court required the government, represented by
respondents Cesar V. Purisima, Secretary of the Department of Finance, and Kim S.
Jacinto-Henares, Commissioner of Internal Revenue, to comment on the petition within
10 days from notice.2 Later, the Court issued another resolution treating the petition as
one for prohibition.3

On August 23, 2010 the Office of the Solicitor General filed the government’s
comment.4 The government avers that the NIRC imposes VAT on all kinds of services
of franchise grantees, including tollway operations, except where the law provides
otherwise; that the Court should seek the meaning and intent of the law from the words
used in the statute; and that the imposition of VAT on tollway operations has been the
subject as early as 2003 of several BIR rulings and circulars. 5

The government also argues that petitioners have no right to invoke the non-impairment
of contracts clause since they clearly have no personal interest in existing toll operating
agreements (TOAs) between the government and tollway operators. At any rate, the
non-impairment clause cannot limit the State’s sovereign taxing power which is
generally read into contracts.

Finally, the government contends that the non-inclusion of VAT in the parametric
formula for computing toll rates cannot exempt tollway operators from VAT. In any
event, it cannot be claimed that the rights of tollway operators to a reasonable rate of
return will be impaired by the VAT since this is imposed on top of the toll rate. Further,
the imposition of VAT on toll fees would have very minimal effect on motorists using the
tollways.

In their reply6 to the government’s comment, petitioners point out that tollway operators
cannot be regarded as franchise grantees under the NIRC since they do not hold
legislative franchises. Further, the BIR intends to collect the VAT by rounding off the toll
rate and putting any excess collection in an escrow account. But this would be illegal
since only the Congress can modify VAT rates and authorize its disbursement. Finally,
BIR Revenue Memorandum Circular 63-2010 (BIR RMC 63-2010), which directs toll
companies to record an accumulated input VAT of zero balance in their books as of
August 16, 2010, contravenes Section 111 of the NIRC which grants entities that first
become liable to VAT a transitional input tax credit of 2% on beginning inventory. For
this reason, the VAT on toll fees cannot be implemented.

The Issues Presented

The case presents two procedural issues:

1. Whether or not the Court may treat the petition for declaratory relief as one for
prohibition; and

2. Whether or not petitioners Diaz and Timbol have legal standing to file the
action.

The case also presents two substantive issues:

1. Whether or not the government is unlawfully expanding VAT coverage by

including tollway operators and tollway operations in the terms "franchise
grantees" and "sale of services" under Section 108 of the Code; and

2. Whether or not the imposition of VAT on tollway operators a) amounts to a tax

on tax and not a tax on services; b) will impair the tollway operators’ right to a
reasonable return of investment under their TOAs; and c) is not administratively
feasible and cannot be implemented.

The Court’s Rulings

A. On the Procedural Issues:

On August 24, 2010 the Court issued a resolution, treating the petition as one for
prohibition rather than one for declaratory relief, the characterization that petitioners
Diaz and Timbol gave their action. The government has sought reconsideration of the
Court’s resolution,7 however, arguing that petitioners’ allegations clearly made out a
case for declaratory relief, an action over which the Court has no original jurisdiction.
The government adds, moreover, that the petition does not meet the requirements of
Rule 65 for actions for prohibition since the BIR did not exercise judicial, quasi-judicial,
or ministerial functions when it sought to impose VAT on toll fees. Besides, petitioners
Diaz and Timbol has a plain, speedy, and adequate remedy in the ordinary course of
law against the BIR action in the form of an appeal to the Secretary of Finance.

But there are precedents for treating a petition for declaratory relief as one for
prohibition if the case has far-reaching implications and raises questions that need to be
resolved for the public good.8 The Court has also held that a petition for prohibition is a
proper remedy to prohibit or nullify acts of executive officials that amount to usurpation
of legislative authority.9
Here, the imposition of VAT on toll fees has far-reaching implications. Its imposition
would impact, not only on the more than half a million motorists who use the tollways
everyday, but more so on the government’s effort to raise revenue for funding various
projects and for reducing budgetary deficits.

To dismiss the petition and resolve the issues later, after the challenged VAT has been
imposed, could cause more mischief both to the tax-paying public and the government.
A belated declaration of nullity of the BIR action would make any attempt to refund to
the motorists what they paid an administrative nightmare with no solution.
Consequently, it is not only the right, but the duty of the Court to take cognizance of and
resolve the issues that the petition raises.

Although the petition does not strictly comply with the requirements of Rule 65, the
Court has ample power to waive such technical requirements when the legal questions
to be resolved are of great importance to the public. The same may be said of the
requirement of locus standi which is a mere procedural requisite. 10

B. On the Substantive Issues:

One. The relevant law in this case is Section 108 of the NIRC, as amended. VAT is
levied, assessed, and collected, according to Section 108, on the gross receipts derived
from the sale or exchange of services as well as from the use or lease of properties.
The third paragraph of Section 108 defines "sale or exchange of services" as follows:

The phrase ‘sale or exchange of services’ means the performance of all kinds of
services in the Philippines for others for a fee, remuneration or consideration, including
those performed or rendered by construction and service contractors; stock, real estate,
commercial, customs and immigration brokers; lessors of property, whether personal or
real; warehousing services; lessors or distributors of cinematographic films; persons
engaged in milling, processing, manufacturing or repacking goods for others;
proprietors, operators or keepers of hotels, motels, resthouses, pension houses, inns,
resorts; proprietors or operators of restaurants, refreshment parlors, cafes and other
eating places, including clubs and caterers; dealers in securities; lending investors;
transportation contractors on their transport of goods or cargoes, including persons who
transport goods or cargoes for hire and other domestic common carriers by land relative
to their transport of goods or cargoes; common carriers by air and sea relative to their
transport of passengers, goods or cargoes from one place in the Philippines to another
place in the Philippines; sales of electricity by generation companies, transmission, and
distribution companies; services of franchise grantees of electric utilities, telephone and
telegraph, radio and television broadcasting and all other franchise grantees except
those under Section 119 of this Code and non-life insurance companies (except their
crop insurances), including surety, fidelity, indemnity and bonding companies; and
similar services regardless of whether or not the performance thereof calls for the
exercise or use of the physical or mental faculties. (Underscoring supplied)
It is plain from the above that the law imposes VAT on "all kinds of services" rendered in
the Philippines for a fee, including those specified in the list. The enumeration of
affected services is not exclusive.11 By qualifying "services" with the words "all kinds,"
Congress has given the term "services" an all-encompassing meaning. The listing of
specific services are intended to illustrate how pervasive and broad is the VAT’s reach
rather than establish concrete limits to its application. Thus, every activity that can be
imagined as a form of "service" rendered for a fee should be deemed included unless
some provision of law especially excludes it.

Now, do tollway operators render services for a fee? Presidential Decree (P.D.) 1112 or
the Toll Operation Decree establishes the legal basis for the services that tollway
operators render. Essentially, tollway operators construct, maintain, and operate
expressways, also called tollways, at the operators’ expense. Tollways serve as
alternatives to regular public highways that meander through populated areas and
branch out to local roads. Traffic in the regular public highways is for this reason slow-
moving. In consideration for constructing tollways at their expense, the operators are
allowed to collect government-approved fees from motorists using the tollways until
such operators could fully recover their expenses and earn reasonable returns from
their investments.

When a tollway operator takes a toll fee from a motorist, the fee is in effect for the
latter’s use of the tollway facilities over which the operator enjoys private proprietary
rights12 that its contract and the law recognize. In this sense, the tollway operator is no
different from the following service providers under Section 108 who allow others to use
their properties or facilities for a fee:

1. Lessors of property, whether personal or real;

2. Warehousing service operators;

3. Lessors or distributors of cinematographic films;

4. Proprietors, operators or keepers of hotels, motels, resthouses, pension

houses, inns, resorts;

5. Lending investors (for use of money);

6. Transportation contractors on their transport of goods or cargoes, including

persons who transport goods or cargoes for hire and other domestic common
carriers by land relative to their transport of goods or cargoes; and

7. Common carriers by air and sea relative to their transport of passengers,

goods or cargoes from one place in the Philippines to another place in the
Philippines.
It does not help petitioners’ cause that Section 108 subjects to VAT "all kinds of
services" rendered for a fee "regardless of whether or not the performance thereof calls
for the exercise or use of the physical or mental faculties." This means that "services" to
be subject to VAT need not fall under the traditional concept of services, the personal or
professional kinds that require the use of human knowledge and skills.

And not only do tollway operators come under the broad term "all kinds of services,"
they also come under the specific class described in Section 108 as "all other franchise
grantees" who are subject to VAT, "except those under Section 119 of this Code."

Tollway operators are franchise grantees and they do not belong to exceptions (the low-
income radio and/or television broadcasting companies with gross annual incomes of
less than ₱10 million and gas and water utilities) that Section 119 13 spares from the
payment of VAT. The word "franchise" broadly covers government grants of a special
right to do an act or series of acts of public concern. 14

Petitioners of course contend that tollway operators cannot be considered "franchise

grantees" under Section 108 since they do not hold legislative franchises. But nothing in
Section 108 indicates that the "franchise grantees" it speaks of are those who hold
legislative franchises. Petitioners give no reason, and the Court cannot surmise any, for
making a distinction between franchises granted by Congress and franchises granted
by some other government agency. The latter, properly constituted, may grant
franchises. Indeed, franchises conferred or granted by local authorities, as agents of the
state, constitute as much a legislative franchise as though the grant had been made by
Congress itself.15 The term "franchise" has been broadly construed as referring, not only
to authorizations that Congress directly issues in the form of a special law, but also to
those granted by administrative agencies to which the power to grant franchises has
been delegated by Congress.16

Tollway operators are, owing to the nature and object of their business, "franchise
grantees." The construction, operation, and maintenance of toll facilities on public
improvements are activities of public consequence that necessarily require a special
grant of authority from the state. Indeed, Congress granted special franchise for the
operation of tollways to the Philippine National Construction Company, the former
tollway concessionaire for the North and South Luzon Expressways. Apart from
Congress, tollway franchises may also be granted by the TRB, pursuant to the exercise
of its delegated powers under P.D. 1112.17 The franchise in this case is evidenced by a
"Toll Operation Certificate."18

Petitioners contend that the public nature of the services rendered by tollway operators
excludes such services from the term "sale of services" under Section 108 of the Code.
But, again, nothing in Section 108 supports this contention. The reverse is true. In
specifically including by way of example electric utilities, telephone, telegraph, and
broadcasting companies in its list of VAT-covered businesses, Section 108 opens other
companies rendering public service for a fee to the imposition of VAT. Businesses of a
public nature such as public utilities and the collection of tolls or charges for its use or
service is a franchise.19

Nor can petitioners cite as binding on the Court statements made by certain lawmakers
in the course of congressional deliberations of the would-be law. As the Court said in
South African Airways v. Commissioner of Internal Revenue, 20 "statements made by
individual members of Congress in the consideration of a bill do not necessarily reflect
the sense of that body and are, consequently, not controlling in the interpretation of
law." The congressional will is ultimately determined by the language of the law that the
lawmakers voted on. Consequently, the meaning and intention of the law must first be
sought "in the words of the statute itself, read and considered in their natural, ordinary,
commonly accepted and most obvious significations, according to good and approved
usage and without resorting to forced or subtle construction."

Two. Petitioners argue that a toll fee is a "user’s tax" and to impose VAT on toll fees is
tantamount to taxing a tax.21 Actually, petitioners base this argument on the following
discussion in Manila International Airport Authority (MIAA) v. Court of Appeals: 22

No one can dispute that properties of public dominion mentioned in Article 420 of the
Civil Code, like "roads, canals, rivers, torrents, ports and bridges constructed by the
State," are owned by the State. The term "ports" includes seaports and airports. The
MIAA Airport Lands and Buildings constitute a "port" constructed by the State. Under
Article 420 of the Civil Code, the MIAA Airport Lands and Buildings are properties of
public dominion and thus owned by the State or the Republic of the Philippines.

x x x The operation by the government of a tollway does not change the character of the
road as one for public use. Someone must pay for the maintenance of the road, either
the public indirectly through the taxes they pay the government, or only those among
the public who actually use the road through the toll fees they pay upon using the
road. The tollway system is even a more efficient and equitable manner of taxing the
public for the maintenance of public roads.

The charging of fees to the public does not determine the character of the property
whether it is for public dominion or not. Article 420 of the Civil Code defines property of
public dominion as "one intended for public use." Even if the government collects toll
fees, the road is still "intended for public use" if anyone can use the road under the
same terms and conditions as the rest of the public. The charging of fees, the limitation
on the kind of vehicles that can use the road, the speed restrictions and other conditions
for the use of the road do not affect the public character of the road.

The terminal fees MIAA charges to passengers, as well as the landing fees MIAA
charges to airlines, constitute the bulk of the income that maintains the operations of
MIAA. The collection of such fees does not change the character of MIAA as an airport
for public use. Such fees are often termed user’s tax. This means taxing those among
the public who actually use a public facility instead of taxing all the public including
those who never use the particular public facility. A user’s tax is more equitable – a
principle of taxation mandated in the 1987 Constitution."23 (Underscoring supplied)

Petitioners assume that what the Court said above, equating terminal fees to a "user’s
tax" must also pertain to tollway fees. But the main issue in the MIAA case was whether
or not Parañaque City could sell airport lands and buildings under MIAA administration
at public auction to satisfy unpaid real estate taxes. Since local governments have no
power to tax the national government, the Court held that the City could not proceed
with the auction sale. MIAA forms part of the national government although not
integrated in the department framework." 24 Thus, its airport lands and buildings are
properties of public dominion beyond the commerce of man under Article 420(1) 25 of the
Civil Code and could not be sold at public auction.

As can be seen, the discussion in the MIAA case on toll roads and toll fees was made,
not to establish a rule that tollway fees are user’s tax, but to make the point that airport
lands and buildings are properties of public dominion and that the collection of terminal
fees for their use does not make them private properties. Tollway fees are not taxes.
Indeed, they are not assessed and collected by the BIR and do not go to the general
coffers of the government.

It would of course be another matter if Congress enacts a law imposing a user’s tax,
collectible from motorists, for the construction and maintenance of certain roadways.
The tax in such a case goes directly to the government for the replenishment of
resources it spends for the roadways. This is not the case here. What the government
seeks to tax here are fees collected from tollways that are constructed, maintained, and
operated by private tollway operators at their own expense under the build, operate, and
transfer scheme that the government has adopted for expressways. 26 Except for a
fraction given to the government, the toll fees essentially end up as earnings of the
tollway operators.

In sum, fees paid by the public to tollway operators for use of the tollways, are not taxes
in any sense. A tax is imposed under the taxing power of the government principally for
the purpose of raising revenues to fund public expenditures. 27 Toll fees, on the other
hand, are collected by private tollway operators as reimbursement for the costs and
expenses incurred in the construction, maintenance and operation of the tollways, as
well as to assure them a reasonable margin of income. Although toll fees are charged
for the use of public facilities, therefore, they are not government exactions that can be
properly treated as a tax. Taxes may be imposed only by the government under its
sovereign authority, toll fees may be demanded by either the government or private
individuals or entities, as an attribute of ownership. 28

Parenthetically, VAT on tollway operations cannot be deemed a tax on tax due to the
nature of VAT as an indirect tax. In indirect taxation, a distinction is made between the
liability for the tax and burden of the tax. The seller who is liable for the VAT may shift or
pass on the amount of VAT it paid on goods, properties or services to the buyer. In such
a case, what is transferred is not the seller’s liability but merely the burden of the VAT. 29
Thus, the seller remains directly and legally liable for payment of the VAT, but the buyer
bears its burden since the amount of VAT paid by the former is added to the selling
price. Once shifted, the VAT ceases to be a tax30 and simply becomes part of the cost
that the buyer must pay in order to purchase the good, property or service.

Consequently, VAT on tollway operations is not really a tax on the tollway user, but on
the tollway operator. Under Section 105 of the Code, 31 VAT is imposed on any person
who, in the course of trade or business, sells or renders services for a fee. In other
words, the seller of services, who in this case is the tollway operator, is the person liable
for VAT. The latter merely shifts the burden of VAT to the tollway user as part of the toll
fees.

For this reason, VAT on tollway operations cannot be a tax on tax even if toll fees were
deemed as a "user’s tax." VAT is assessed against the tollway operator’s gross receipts
and not necessarily on the toll fees. Although the tollway operator may shift the VAT
burden to the tollway user, it will not make the latter directly liable for the VAT. The
shifted VAT burden simply becomes part of the toll fees that one has to pay in order to
use the tollways.32

Three. Petitioner Timbol has no personality to invoke the non-impairment of contract

clause on behalf of private investors in the tollway projects. She will neither be
prejudiced by nor be affected by the alleged diminution in return of investments that
may result from the VAT imposition. She has no interest at all in the profits to be earned
under the TOAs. The interest in and right to recover investments solely belongs to the
private tollway investors.

Besides, her allegation that the private investors’ rate of recovery will be adversely
affected by imposing VAT on tollway operations is purely speculative. Equally
presumptuous is her assertion that a stipulation in the TOAs known as the Material
Adverse Grantor Action will be activated if VAT is thus imposed. The Court cannot rule
on matters that are manifestly conjectural. Neither can it prohibit the State from
exercising its sovereign taxing power based on uncertain, prophetic grounds.

Four. Finally, petitioners assert that the substantiation requirements for claiming input
VAT make the VAT on tollway operations impractical and incapable of implementation.
They cite the fact that, in order to claim input VAT, the name, address and tax
identification number of the tollway user must be indicated in the VAT receipt or invoice.
The manner by which the BIR intends to implement the VAT – by rounding off the toll
rate and putting any excess collection in an escrow account – is also illegal, while the
alternative of giving "change" to thousands of motorists in order to meet the exact toll
rate would be a logistical nightmare. Thus, according to them, the VAT on tollway
operations is not administratively feasible. 33

Administrative feasibility is one of the canons of a sound tax system. It simply means
that the tax system should be capable of being effectively administered and enforced
with the least inconvenience to the taxpayer. Non-observance of the canon, however,
will not render a tax imposition invalid "except to the extent that specific constitutional or
statutory limitations are impaired."34 Thus, even if the imposition of VAT on tollway
operations may seem burdensome to implement, it is not necessarily invalid unless
some aspect of it is shown to violate any law or the Constitution.

Here, it remains to be seen how the taxing authority will actually implement the VAT on
tollway operations. Any declaration by the Court that the manner of its implementation is
illegal or unconstitutional would be premature. Although the transcript of the August 12,
2010 Senate hearing provides some clue as to how the BIR intends to go about it, 35 the
facts pertaining to the matter are not sufficiently established for the Court to pass
judgment on. Besides, any concern about how the VAT on tollway operations will be
enforced must first be addressed to the BIR on whom the task of implementing tax laws
primarily and exclusively rests. The Court cannot preempt the BIR’s discretion on the
matter, absent any clear violation of law or the Constitution.

For the same reason, the Court cannot prematurely declare as illegal, BIR RMC 63-
2010 which directs toll companies to record an accumulated input VAT of zero balance
in their books as of August 16, 2010, the date when the VAT imposition was supposed
to take effect. The issuance allegedly violates Section 111(A) 36 of the Code which
grants first time VAT payers a transitional input VAT of 2% on beginning inventory.

In this connection, the BIR explained that BIR RMC 63-2010 is actually the product of
negotiations with tollway operators who have been assessed VAT as early as 2005, but
failed to charge VAT-inclusive toll fees which by now can no longer be collected. The
tollway operators agreed to waive the 2% transitional input VAT, in exchange for
cancellation of their past due VAT liabilities. Notably, the right to claim the 2%
transitional input VAT belongs to the tollway operators who have not questioned the
circular’s validity. They are thus the ones who have a right to challenge the circular in a
direct and proper action brought for the purpose.

Conclusion

In fine, the Commissioner of Internal Revenue did not usurp legislative prerogative or
expand the VAT law’s coverage when she sought to impose VAT on tollway operations.
Section 108(A) of the Code clearly states that services of all other franchise grantees
are subject to VAT, except as may be provided under Section 119 of the Code. Tollway
operators are not among the franchise grantees subject to franchise tax under the latter
provision. Neither are their services among the VAT-exempt transactions under Section
109 of the Code.

If the legislative intent was to exempt tollway operations from VAT, as petitioners so
strongly allege, then it would have been well for the law to clearly say so. Tax
exemptions must be justified by clear statutory grant and based on language in the law
too plain to be mistaken.37 But as the law is written, no such exemption obtains for
tollway operators. The Court is thus duty-bound to simply apply the law as it is
found.1avvphi1
Lastly, the grant of tax exemption is a matter of legislative policy that is within the
exclusive prerogative of Congress. The Court’s role is to merely uphold this legislative
policy, as reflected first and foremost in the language of the tax statute. Thus, any
unwarranted burden that may be perceived to result from enforcing such policy must be
properly referred to Congress. The Court has no discretion on the matter but simply
applies the law.

The VAT on franchise grantees has been in the statute books since 1994 when R.A.
7716 or the Expanded Value-Added Tax law was passed. It is only now, however, that
the executive has earnestly pursued the VAT imposition against tollway operators. The
executive exercises exclusive discretion in matters pertaining to the implementation and
execution of tax laws. Consequently, the executive is more properly suited to deal with
the immediate and practical consequences of the VAT imposition.

WHEREFORE, the Court DENIES respondents Secretary of Finance and

Commissioner of Internal Revenue’s motion for reconsideration of its August 24, 2010
resolution, DISMISSES the petitioners Renato V. Diaz and Aurora Ma. F. Timbol’s
petition for lack of merit, and SETS ASIDE the Court’s temporary restraining order dated
August 13, 2010.

A.M. No. 08-11-7-SC               August 28, 2009

RE: REQUEST OF NATIONAL COMMITTEE ON LEGAL AID1 TO EXEMPT LEGAL

AID CLIENTS FROM PAYING FILING, DOCKET AND OTHER FEES.

RESOLUTION

CORONA, J.:

On September 23, 2008 the Misamis Oriental Chapter of the Integrated Bar of the
Philippines (IBP) promulgated Resolution No. 24, series of 2008. 2 The resolution
requested the IBP’s National Committee on Legal Aid 3 (NCLA) to ask for the exemption
from the payment of filing, docket and other fees of clients of the legal aid offices in the
various IBP chapters. Resolution No. 24, series of 2008 provided:

RESOLUTION NO. 24, SERIES OF 2008

RESOLUTION OF THE IBP–MISAMIS ORIENTAL CHAPTER FOR THE IBP

NATIONAL LEGAL AID OFFICE TO REQUEST THE COURTS AND OTHER QUASI-
JUDICIAL BODIES, THE PHILIPPINE MEDIATION CENTER AND PROSECUTOR’S
OFFICES TO EXEMPT LEGAL AID CLIENTS FROM PAYING FILING, DOCKET AND
OTHER FEES INCIDENTAL TO THE FILING AND LITIGATION OF ACTIONS, AS
ORIGINAL PROCEEDINGS OR ON APPEAL.

WHEREAS, Section 1, Article I of the Guidelines Governing the Establishment and

Operation of Legal Aid Offices in All Chapters of the Integrated Bar of the Philippines
(otherwise known as ["]Guideline[s] on Legal Aid["]) provides: Legal aid is not a matter
of charity. It is a means for the correction of social imbalances that may often lead to
injustice, for which reason, it is a public responsibility of the Bar. The spirit of public
service should therefore unde[r]ly all legal aid offices. The same should be so
administered as to give maximum possible assistance to indigent and deserving
members of the community in all cases, matters and situations in which legal aid may
be necessary to forestall injustice.

WHEREAS, Section 2 of the same provides: In order to attain the objectives of legal
aid, legal aid office should be as close as possible to those who are in need thereof –
the masses. Hence, every chapter of the IBP must establish and operate an adequate
legal aid office.

WHEREAS, the Legal Aid Office of the IBP–Misamis Oriental Chapter has long been
operational, providing free legal services to numerous indigent clients, through the
chapter’s members who render volunteer services in the spirit of public service;

WHEREAS, the courts, quasi-judicial bodies, the various mediation centers and
prosecutor’s offices are collecting fees, be they filing, docket, motion, mediation or other
fees in cases, be they original proceedings or on appeal;

WHEREAS, IBP Legal Aid clients are qualified under the same indigency and merit
tests used by the Public Attorney’s Office (PAO), and would have qualified for PAO
assistance, but for reasons other than indigency, are disqualified from availing of the
services of the PAO, like the existence of a conflict of interests or conflicting defenses,
and other similar causes;

WHEREAS, PAO clients are automatically exempt from the payment of docket and
other fees for cases, be they original proceedings or on appeal, by virtue of the
provisions of Section 16–D of R.A. 9406 (PAO Law), without the need for the filing of
any petition or motion to declare them as pauper litigants;

WHEREAS, there is no similar provision in any substantive law or procedural law giving
IBP Legal Aid clients the same benefits or privileges enjoyed by PAO clients with
respect to the payment of docket and other fees before the courts, quasi-judicial bodies
and prosecutor’s offices;

WHEREAS, the collection of docket and other fees from the IBP Legal Aid clients poses
an additional strain to their next to non-existent finances;

WHEREAS, the quarterly allowance given by the National Legal Aid Office to the IBP
Misamis Oriental Chapter is insufficient to even cover the incidental expenses of
volunteer legal aid lawyers, much less answer for the payment of docket and other fees
collected by the courts, quasi-judicial bodies and prosecutor’s offices and mediation
fees collected by the Philippine Mediation Center;
NOW THEREFORE, on motion of the Board of Officers of the IBP–Misamis Oriental
Chapter, be it resolved as it is hereby resolved, to move the IBP National Legal Aid
Office to make the necessary requests or representations with the Supreme Court, the
Philippine Mediation Center, the Department of Justice and the National Prosecution
Service and other quasi-judicial agencies to effect the grant of a like exemption from the
payment of filing, docket and other fees to the IBP Legal Aid clients as that enjoyed by
PAO clients, towards the end that IBP Legal Aid clients be automatically exempted from
the filing of the abovementioned fees;

RESOLVED FURTHER, that copies of this Resolution be furnished to Supreme Court

Chief Justice Honorable Reynato S. Puno, IBP National President Feliciano M. Bautista,
the IBP Board of Governors, Secretary of Justice Hon. Raul M. Gonzalez, the National
Supervisor of the Philippine Mediation Center, the National Labor Relations
Commission, the Civil Service Commission and other quasi-judicial bodies and their
local offices;

RESOLVED FINALLY to move the IBP Board of Governors and National Officers to
make the necessary representations with the National Legislature and its members to
effect the filing of a bill before the House of Representatives and the Senate granting
exemption to IBP Legal Aid clients from the payment of docket, filing and or other fees
in cases before the courts, quasi-judicial agencies and prosecutor’s offices and the
mediation centers.

Done this 23rd day of September 2008, Cagayan De Oro City.

Unanimously approved upon motion severally seconded. 4

The Court noted Resolution No. 24, series of 2008 and required the IBP, through the
NCLA, to comment thereon.5

In a comment dated December 18, 2008,6 the IBP, through the NCLA, made the
following comments:

(a) Under Section 16-D of RA7 9406, clients of the Public Attorneys’ Office (PAO)
are exempt from the payment of docket and other fees incidental to the institution
of action in court and other quasi-judicial bodies. On the other hand, clients of
legal aid offices in the various IBP chapters do not enjoy the same exemption.
IBP’s indigent clients are advised to litigate as pauper litigants under Section 21,
Rule 3 of the Rules of Court;

(b) They are further advised to submit documentary evidence to prove

compliance with the requirements under Section 21, Rule 3 of the Rules of
Court, i.e., certifications from the barangay and the Department of Social Welfare
and Development. However, not only does the process involve some expense
which indigent clients could ill-afford, clients also lack knowledge on how to go
about the tedious process of obtaining these documents;
 (c) Although the IBP is given an annual legal aid subsidy, the amount it receives
from the government is barely enough to cover various operating expenses; 8

(d) While each IBP local chapter is given a quarterly allocation (from the legal aid
subsidy),9 said allocation covers neither the incidental expenses defrayed by
legal aid lawyers in handling legal aid cases nor the payment of docket and other
fees collected by the courts, quasi-judicial bodies and the prosecutor’s office, as
well as mediation fees and

(e) Considering the aforementioned factors, a directive may be issued by the

Supreme Court granting IBP’s indigent clients an exemption from the payment of
docket and other fees similar to that given to PAO clients under Section 16-D of
RA 9406. In this connection, the Supreme Court previously issued a circular
exempting IBP clients from the payment of transcript of stenographic notes. 10

At the outset, we laud the Misamis Oriental Chapter of the IBP for its effort to help
improve the administration of justice, particularly, the access to justice by the poor. Its
Resolution No. 24, series of 2008 in fact echoes one of the noteworthy
recommendations during the Forum on Increasing Access to Justice spearheaded by
the Court last year. In promulgating Resolution No. 24, the Misamis Oriental Chapter of
the IBP has effectively performed its duty to "participate in the development of the legal
system by initiating or supporting efforts in law reform and in the administration of
justice."11

We now move on to determine the merits of the request.

Access to Justice:
Making an Ideal a Reality

Access to justice by all, especially by the poor, is not simply an ideal in our society. Its
existence is essential in a democracy and in the rule of law. As such, it is guaranteed by
no less than the fundamental law:

Sec. 11. Free access to the courts and quasi-judicial bodies and adequate legal

assistance shall not be denied to any person by reason of poverty.12 (emphasis
supplied)

The Court recognizes the right of access to justice as the most important pillar of legal
empowerment of the marginalized sectors of our society. 13 Among others, it has
exercised its power to "promulgate rules concerning the protection and enforcement of
constitutional rights"14 to open the doors of justice to the underprivileged and to allow
them to step inside the courts to be heard of their plaints. In particular, indigent litigants
are permitted under Section 21, Rule 315 and Section 19, Rule 14116 of the Rules of
Court to bring suits in forma pauperis.
The IBP, pursuant to its general objectives to "improve the administration of justice and
enable the Bar to discharge its public responsibility more effectively," 17 assists the Court
in providing the poor access to justice. In particular, it renders free legal aid under the
supervision of the NCLA.

A New Rule, a New Tool

for Access to Justice

Under the IBP’s Guidelines Governing the Establishment and Operation of Legal Aid
Offices in All Chapters of the IBP (Guidelines on Legal Aid), the combined "means and
merit tests" shall be used to determine the eligibility of an applicant for legal aid:

ARTICLE VIII
TESTS

SEC. 19. Combined tests. – The Chapter Legal Aid Committee or the [NCLA], as the
case may be, shall pass upon the request for legal aid by the combined application of
the means test and merit test, and the consideration of other factors adverted to in the
following sections.

SEC. 20. Means test. – The means test aims at determining whether the applicant has
no visible means of support or his income is otherwise insufficient to provide the
financial resources necessary to engage competent private counsel owing to the
demands for subsistence of his family, considering the number of his dependents and
the conditions prevailing in the locality.

The means test shall not be applicable to applicants who fall under the Developmental
Legal Aid Program such as Overseas Filipino Workers, fishermen, farmers, women and
children and other disadvantaged groups.

SEC. 21. Merit test. – The merit test seeks to ascertain whether or not the applicant’s
cause of action or his defense is valid and chances of establishing the same appear
reasonable.

SEC. 22. Other factors. – The effect of the Legal Aid Service or of the failure to render
the same upon the Rule of Law, the proper administration of justice, the public interest
involved in given cases and the practice of law in the locality shall likewise be
considered.

SEC. 23. Private practice. – Care shall be taken that the Legal aid is not availed of to
the detriment of the private practice of law, or taken advantage of by anyone for
personal ends.

SEC. 24. Denial. – Legal aid may be denied to an applicant already receiving adequate
assistance from any source other than the Integrated Bar.
The "means and merit tests" appear to be reasonable determinants of eligibility for
coverage under the legal aid program of the IBP. Nonetheless, they may be improved to
ensure that any exemption from the payment of legal fees that may be granted to clients
of the NCLA and the legal aid offices of the various IBP chapters will really further the
right of access to justice by the poor. This will guarantee that the exemption will neither
be abused nor trivialized. Towards this end, the following shall be observed by the
NCLA and the legal aid offices in IBP chapters nationwide in accepting clients and
handling cases for the said clients:

A.M. No. 08-11-7-SC (IRR): Re: Rule on the Exemption From the Payment of Legal
Fees of the Clients of the National Committee on Legal Aid and of the Legal Aid
Offices in the Local Chapters of the Integrated Bar of the Philippines

Rule on the Exemption From the Payment of Legal Fees of the Clients of the
National Committee on Legal Aid (NCLA) and of the Legal Aid Offices in the Local
Chapters of the Integrated Bar of the Philippines (IBP)

ARTICLE I
Purpose

Section 1. Purpose. – This Rule is issued for the purpose of enforcing the right of free
access to courts by the poor guaranteed under Section 11, Article III of the Constitution.
It is intended to increase the access to justice by the poor by exempting from the
payment of legal fees incidental to instituting an action in court, as an original
proceeding or on appeal, qualified indigent clients of the NCLA and of the legal aid
offices in local IBP chapters nationwide.

ARTICLE II
Definition of Terms

Section 1. Definition of important terms. – For purposes of this Rule and as used herein,
the following terms shall be understood to be how they are defined under this Section:

(a) "Developmental legal aid" means the rendition of legal services in public
interest causes involving overseas workers, fisherfolk, farmers, laborers,
indigenous cultural communities, women, children and other disadvantaged
groups and marginalized sectors;

(b) "Disinterested person" refers to the punong barangay having jurisdiction over

the place where an applicant for legal aid or client of the NCLA or chapter legal
aid office resides;

(c) "Falsity" refers to any material misrepresentation of fact or any fraudulent,

deceitful, false, wrong or misleading statement in the application or affidavits
submitted to support it or the affidavit of a disinterested person required to be
submitted annually under this Rule which may substantially affect the
 determination of the qualifications of the applicant or the client under the means
and merit tests;

(d) "Legal fees" refers to the legal fees imposed under Rule 141 of the Rules of
Court as a necessary incident of instituting an action in court either as an original
proceeding or on appeal. In particular, it includes filing or docket fees, appeal
fees, fees for issuance of provisional remedies, mediation fees, sheriff’s fees,
stenographer’s fees (that is fees for transcript of stenographic notes) and
commissioner’s fees;

(e) "Means test" refers to the set of criteria used to determine whether the
applicant is one who has no money or property sufficient and available for food,
shelter and basic necessities for himself and his family;

(f) "Merit test" refers to the ascertainment of whether the applicant’s cause of
action or his defense is valid and whether the chances of establishing the same
appear reasonable and

(g) "Representative" refers to the person authorized to file an application for legal
aid in behalf of the applicant when the said applicant is prevented by a
compelling reason from personally filing his application. As a rule, it refers to the
immediate family members of the applicant. However, it may include any of the
applicant’s relatives or any person or concerned citizen of sufficient discretion
who has first-hand knowledge of the personal circumstances of the applicant as
well as of the facts of the applicant’s case.

ARTICLE III
Coverage

Section 1. Persons qualified for exemption from payment of legal fees. – Persons who
shall enjoy the benefit of exemption from the payment of legal fees incidental to
instituting an action in court, as an original proceeding or on appeal, granted under this
Rule shall be limited only to clients of the NCLA and the chapter legal aid offices.

The said clients shall refer to those indigents qualified to receive free legal aid service
from the NCLA and the chapter legal aid offices. Their qualifications shall be determined
based on the tests provided in this Rule.

Section 2. Persons not covered by the Rule. – The following shall be disqualified from
the coverage of this Rule. Nor may they be accepted as clients by the NCLA and the
chapter legal aid offices.

(a) Juridical persons; except in cases covered by developmental legal aid or

public interest causes involving juridical entities which are non-stock, non-profit
organizations, non-governmental organizations and people’s organizations
whose individual members will pass the means test provided in this Rule;
 (b) Persons who do not pass the means and merit tests;

(c) Parties already represented by a counsel de parte;

(d) Owners or lessors of residential lands or buildings with respect to the filing of
collection or unlawful detainer suits against their tenants and

(e) Persons who have been clients of the NCLA or chapter legal aid office
previously in a case where the NCLA or chapter legal aid office withdrew its
representation because of a falsity in the application or in any of the affidavits
supporting the said application.

Section 3. Cases not covered by the Rule. – The NCLA and the chapter legal aid offices
shall not handle the following:

(a) Cases where conflicting interests will be represented by the NCLA and the
chapter legal aid offices and

(b) Prosecution of criminal cases in court.

ARTICLE IV
Tests of Indigency

Section 1. Tests for determining who may be clients of the NCLA and the legal aid
offices in local IBP chapters. – The NCLA or the chapter legal aid committee, as the
case may be, shall pass upon requests for legal aid by the combined application of the
means and merit tests and the consideration of other relevant factors provided for in the
following sections.

Section 2. Means test; exception. – (a) This test shall be based on the following criteria:
(i) the applicant and that of his immediate family must have a gross monthly income that
does not exceed an amount double the monthly minimum wage of an employee in the
place where the applicant resides and (ii) he does not own real property with a fair
market value as stated in the current tax declaration of more than Three Hundred
Thousand (₱300,000.00) Pesos.

In this connection, the applicant shall execute an affidavit of indigency (printed at the
back of the application form) stating that he and his immediate family do not earn a
gross income abovementioned, nor own any real property with the fair value
aforementioned, supported by an affidavit of a disinterested person attesting to the truth
of the applicant’s affidavit. The latest income tax return and/or current tax declaration, if
any, shall be attached to the applicant’s affidavit.

(b) The means test shall not be applicable to applicants who fall under the
developmental legal aid program such as overseas workers, fisherfolk, farmers,
laborers, indigenous cultural communities, women, children and other disadvantaged
groups.

Section 3. Merit test. – A case shall be considered meritorious if an assessment of the

law and evidence at hand discloses that the legal service will be in aid of justice or in
the furtherance thereof, taking into consideration the interests of the party and those of
society. A case fails this test if, after consideration of the law and evidence presented by
the applicant, it appears that it is intended merely to harass or injure the opposite party
or to work oppression or wrong.

Section 4. Other relevant factors that may be considered. – The effect of legal aid or of
the failure to render the same upon the rule of law, the proper administration of justice,
the public interest involved in a given case and the practice of law in the locality shall
likewise be considered.

ARTICLE V
Acceptance and Handling of Cases

Section 1. Procedure in accepting cases. – The following procedure shall be observed

in the acceptance of cases for purposes of this Rule:

(a) Filing of application – An application shall be made personally by the

applicant, unless there is a compelling reason which prevents him from doing so,
in which case his representative may apply for him. It shall adhere substantially
to the form made for that purpose. It shall be prepared and signed by the
applicant or, in proper cases, his duly authorized representative in at least three
copies.

Applications for legal aid shall be filed with the NCLA or with the chapter legal aid
committee.

The NCLA shall, as much as possible, concentrate on cases of paramount

importance or national impact.

Requests received by the IBP National Office shall be referred by the NCLA to
the proper chapter legal aid committee of the locality where the cases have to be
filed or are pending. The chapter president and the chairman of the chapter’s
legal aid committee shall be advised of such referral.

(b) Interview – The applicant shall be interviewed by a member of the chapter

legal aid committee or any chapter member authorized by the chapter legal aid
committee to determine the applicant’s qualifications based on the means and
merit tests and other relevant factors. He shall also be required to submit copies
of his latest income tax returns and/or current tax declaration, if available, and
execute an affidavit of indigency printed at the back of the application form with
the supporting affidavit of a disinterested person attesting to the truth of the
applicant’s affidavit.lawph!l

After the interview, the applicant shall be informed that he can follow up the
action on his application after five (5) working days.

(c) Action on the application – The chapter legal aid committee shall pass upon
every request for legal aid and submit its recommendation to the chapter board
of officers within three (3) working days after the interview of the applicant. The
basis of the recommendation shall be stated.

The chapter board of officers shall review and act on the recommendation of the
chapter legal aid committee within two (2) working days from receipt
thereof; Provided, however, that in urgent matters requiring prompt or immediate
action, the chapter’s executive director of legal aid or whoever performs his
functions may provisionally act on the application, subject to review by the
chapter legal aid committee and, thereafter, by the chapter board of officers.

The action of the chapter board of officers on the application shall be final.

(d) Cases which may be provisionally accepted. – In the following cases, the

NCLA or the chapter legal aid office, through the chapter’s executive director of
legal aid or whoever performs his functions may accept cases provisionally
pending verification of the applicant’s indigency and an evaluation of the merit of
his case.

(i) Where a warrant for the arrest of the applicant has been issued;

(ii) Where a pleading has to be filed immediately to avoid adverse effects to the
applicant;

(iii) Where an appeal has to be urgently perfected or a petition for certiorari,

prohibition or mandamus filed has to be filed immediately; and

(iv) Other similar urgent cases.

(e) Assignment of control number – Upon approval of the chapter board of

officers of a person’s application and the applicant is found to be qualified for
legal assistance, the case shall be assigned a control number. The numbering
shall be consecutive starting from January to December of every year. The
control number shall also indicate the region and the chapter handling the case.

Example:

Region18 Chapter Year Month Number

 GM - Manila - 2009 - 03 - 099

(f) Issuance of a certification – After an application is approved and a control

number duly assigned, the chapter board of officers shall issue a certification that
the person (that is, the successful applicant) is a client of the NCLA or of the
chapter legal aid office. The certification shall bear the control number of the
case and shall state the name of the client and the nature of the judicial action
subject of the legal aid of the NCLA or the legal aid office of a local IBP chapter.

The certification shall be issued to the successful applicant free of charge.

Section 2. Assignment of cases. – After a case is given a control number, the chapter
board of officers shall refer it back to the chapter legal aid committee. The chapter legal
aid committee shall assign the case to any chapter member who is willing to handle the
case.

In case no chapter member has signified an intention to handle the case voluntarily, the
chapter legal aid committee shall refer the matter to the chapter board of officers
together with the names of at least three members who, in the chapter legal aid
committee’s discretion, may competently render legal aid on the matter. The chapter
board of officers shall appoint one chapter member from among the list of names
submitted by the chapter legal aid committee. The chapter member chosen may not
refuse the appointment except on the ground of conflict of interest or other equally
compelling grounds as provided in the Code of Professional Responsibility, 19 in which
case the chapter board of officers shall appoint his replacement from among the
remaining names in the list previously submitted by the chapter legal aid committee.

The chapter legal aid committee and the chapter board of officers shall take the
necessary measures to ensure that cases are well-distributed to chapter members.

Section 3. Policies and guidelines in the acceptance and handling of cases. – The
following policies and guidelines shall be observed in the acceptance and handling of
cases:

(a) First come, first served – Where both the complainant/plaintiff/petitioner and
defendant/ respondent apply for legal aid and both are qualified, the first to seek
assistance shall be given preference.

(b) Avoidance of conflict of interest – Where acceptance of a case will give rise to
a conflict of interest on the part of the chapter legal aid office, the applicant shall
be duly informed and advised to seek the services of a private counsel or another
legal aid organization.

Where handling of the case will give rise to a conflict of interest on the part of the
chapter member assigned to the case, the client shall be duly informed and
advised about it. The handling lawyer shall also inform the chapter legal aid
committee so that another chapter member may be assigned to handle the case.
For purposes of choosing the substitute handling lawyer, the rule in the
immediately preceding section shall be observed.

(c) Legal aid is purely gratuitous and honorary – No member of the chapter or
member of the staff of the NCLA or chapter legal aid office shall directly or
indirectly demand or request from an applicant or client any compensation, gift or
present for legal aid services being applied for or rendered.

(d) Same standard of conduct and equal treatment – A chapter member who is
tasked to handle a case accepted by the NCLA or by the chapter legal aid office
shall observe the same standard of conduct governing his relations with paying
clients. He shall treat the client of the NCLA or of the chapter legal aid office and
the said client’s case in a manner that is equal and similar to his treatment of a
paying client and his case.

(e) Falsity in the application or in the affidavits – Any falsity in the application or in
the affidavit of indigency or in the affidavit of a disinterested person shall be
sufficient cause for the NCLA or chapter legal aid office to withdraw or terminate
the legal aid. For this purpose, the chapter board of officers shall authorize the
handling lawyer to file the proper manifestation of withdrawal of appearance of
the chapter legal aid office in the case with a motion for the dismissal of the
complaint or action of the erring client. The court, after hearing, shall approve the
withdrawal of appearance and grant the motion, without prejudice to whatever
criminal liability may have been incurred.

Violation of this policy shall disqualify the erring client from availing of the
benefits of this Rule in the future.

(f) Statement in the initiatory pleading – To avail of the benefits of the Rule, the
initiatory pleading shall state as an essential preliminary allegation that (i) the
party initiating the action is a client of the NCLA or of the chapter legal aid office
and therefore entitled to exemption from the payment of legal fees under this
Rule and (ii) a certified true copy of the certification issued pursuant to Section
1(e), of this Article is attached or annexed to the pleading.

Failure to make the statement shall be a ground for the dismissal of the action
without prejudice to its refiling.

The same rule shall apply in case the client, through the NCLA or chapter legal
aid office, files an appeal.

(g) Attachment of certification in initiatory pleading – A certified true copy of the

certification issued pursuant to Section 1(e), of this Article shall be attached as
an annex to the initiatory pleading.
 Failure to attach a certified true copy of the said certification shall be a ground for
the dismissal of the action without prejudice to its refiling.

The same rule shall apply in case the client, through the NCLA or chapter legal
aid office, files an appeal.

(h) Signing of pleadings – All complaints, petitions, answers, replies, memoranda

and other important pleadings or motions to be filed in courts shall be signed by
the handling lawyer and co-signed by the chairperson or a member of the
chapter legal aid committee, or in urgent cases, by the executive director of legal
aid or whoever performs his functions.

Ordinary motions such as motions for extension of time to file a pleading or for
postponement of hearing and manifestations may be signed by the handling
lawyer alone.

(i) Motions for extension of time or for postponement – The filing of motions for
extension of time to file a pleading or for postponement of hearing shall be
avoided as much as possible as they cause delay to the case and prolong the
proceedings.

(j) Transfer of cases – Transfer of cases from one handling lawyer to another
shall be affected only upon approval of the chapter legal aid committee.

Section 4. Decision to appeal. – (a) All appeals must be made on the request of the
client himself. For this purpose, the client shall be made to fill up a request to appeal.

(b) Only meritorious cases shall be appealed. If the handling lawyer, in consultation with
the chapter legal aid committee, finds that there is no merit to the appeal, the client
should be immediately informed thereof in writing and the record of the case turned over
to him, under proper receipt. If the client insists on appealing the case, the lawyer
handling the case should perfect the appeal before turning over the records of the case
to him.

Section 5. Protection of private practice. – Utmost care shall be taken to ensure that
legal aid is neither availed of to the detriment of the private practice of law nor taken
advantage of by anyone for purely personal ends.

ARTICLE VI
Withdrawal of Legal Aid and Termination of Exemption

Section 1. Withdrawal of legal aid. – The NCLA or the chapter legal aid committee may,
in justifiable instances as provided in the next Section, direct the handling lawyer to
withdraw representation of a client’s cause upon approval of the IBP Board of
Governors (in the case of the NCLA) or of the chapter board of officers (in the case of
the chapter legal aid committee) and through a proper motion filed in Court.
Section 2. Grounds for withdrawal of legal aid. – Withdrawal may be warranted in the
following situations:

(a) In a case that has been provisionally accepted, where it is subsequently

ascertained that the client is not qualified for legal aid;

(b) Where the client’s income or resources improve and he no longer qualifies for
continued assistance based on the means test. For this purpose, on or before
January 15 every year, the client shall submit an affidavit of a disinterested
person stating that the client and his immediate family do not earn a gross
income mentioned in Section 2, Article V, nor own any real property with the fair
market value mentioned in the same Section;

(c) When it is shown or found that the client committed a falsity in the application
or in the affidavits submitted to support the application;

(d) When the client subsequently engages a de parte counsel or is provided with
a de oficio counsel;

(e) When, despite proper advice from the handling lawyer, the client cannot be
refrained from doing things which the lawyer himself ought not do under the
ethics of the legal profession, particularly with reference to their conduct towards
courts, judicial officers, witnesses and litigants, or the client insists on having
control of the trial, theory of the case, or strategy in procedure which would tend
to result in incalculable harm to the interests of the client;

(f) When, despite notice from the handling lawyer, the client does not cooperate
or coordinate with the handling lawyer to the prejudice of the proper and effective
rendition of legal aid such as when the client fails to provide documents
necessary to support his case or unreasonably fails to attend hearings when his
presence thereat is required; and

(g) When it becomes apparent that the representation of the client’s cause will
result in a representation of conflicting interests, as where the adverse party had
previously engaged the services of the NCLA or of the chapter legal aid office
and the subject matter of the litigation is directly related to the services previously
rendered to the adverse party.

Section 3. Effect of withdrawal. – The court, after hearing, shall allow the NCLA or the
chapter legal aid office to withdraw if it is satisfied that the ground for such withdrawal
exists.

Except when the withdrawal is based on paragraphs (b), (d) and (g) of the immediately
preceding Section, the court shall also order the dismissal of the case. Such dismissal is
without prejudice to whatever criminal liability may have been incurred if the withdrawal
is based on paragraph (c) of the immediately preceding Section.
 ARTICLE VII
Miscellaneous Provisions

Section 1. Lien on favorable judgment. – The amount of the docket and other lawful
fees which the client was exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless the court otherwise provides.

In case, attorney’s fees have been awarded to the client, the same shall belong to the
NCLA or to the chapter legal aid office that rendered the legal aid, as the case may be.
It shall form part of a special fund which shall be exclusively used to support the legal
aid program of the NCLA or the chapter legal aid office. In this connection, the chapter
board of officers shall report the receipt of attorney’s fees pursuant to this Section to the
NCLA within ten (10) days from receipt thereof. The NCLA shall, in turn, include the
data on attorney’s fees received by IBP chapters pursuant to this Section in its
liquidation report for the annual subsidy for legal aid.1awphi1

Section 2. Duty of NCLA to prepare forms. – The NCLA shall prepare the standard
forms to be used in connection with this Rule. In particular, the NCLA shall prepare the
following standard forms: the application form, the affidavit of indigency, the supporting
affidavit of a disinterested person, the affidavit of a disinterested person required to be
submitted annually under Section 2(b), Article VI, the certification issued by the NCLA or
the chapter board of officers under Section 1(f), Article V and the request to appeal.

The said forms, except the certification, shall be in Filipino. Within sixty (60) days from
receipt of the forms from the NCLA, the chapter legal aid offices shall make translations
of the said forms in the dominant dialect used in their respective localities.

Section 3. Effect of Rule on right to bring suits in forma pauperis. – Nothing in this Rule
shall be considered to preclude those persons not covered either by this Rule or by the
exemption from the payment of legal fees granted to clients of the Public Attorney’s
Office under Section 16-D of RA 9406 to litigate in forma pauperis under Section 21,
Rule 3 and Section 19 Rule 141 of the Rules of Court.

Section 4. Compliance with Rule on Mandatory Legal Aid Service. – Legal aid service
rendered by a lawyer under this Rule either as a handling lawyer or as an interviewer of
applicants under Section 1(b), Article IV hereof shall be credited for purposes of
compliance with the Rule on Mandatory Legal Aid Service.

The chairperson of the chapter legal aid office shall issue the certificate similar to that
issued by the Clerk of Court in Section 5(b) of the Rule on Mandatory Legal Aid Service.

ARTICLE VIII
Effectivity

Section 1. Effectivity. – This Rule shall become effective after fifteen days following its
publication in a newspaper of general circulation.
The above rule, in conjunction with Section 21, Rule 3 and Section 19, Rule 141 of the
Rules of Court, the Rule on Mandatory Legal Aid Service and the Rule of Procedure for
Small Claims Cases, shall form a solid base of rules upon which the right of access to
courts by the poor shall be implemented. With these rules, we equip the poor with the
tools to effectively, efficiently and easily enforce their rights in the judicial system.

A Final Word

Equity will not suffer a wrong to be without a remedy. Ubi jus ibi remedium. Where there
is a right, there must be a remedy. The remedy must not only be effective and efficient,
but also readily accessible. For a remedy that is inaccessible is no remedy at all.

The Constitution guarantees the rights of the poor to free access to the courts and to
adequate legal assistance. The legal aid service rendered by the NCLA and legal aid
offices of IBP chapters nationwide addresses only the right to adequate legal
assistance. Recipients of the service of the NCLA and legal aid offices of IBP chapters
may enjoy free access to courts by exempting them from the payment of fees assessed
in connection with the filing of a complaint or action in court. With these twin initiatives,
the guarantee of Section 11, Article III of Constitution is advanced and access to justice
is increased by bridging a significant gap and removing a major roadblock.

WHEREFORE, the Misamis Oriental Chapter of the Integrated Bar of the Philippines is
hereby COMMENDED for helping increase the access to justice by the poor. The
request of the Misamis Oriental Chapter for the exemption from the payment of filing,
docket and other fees of the clients of the legal aid offices of the various IBP chapters
is GRANTED. The Rule on the Exemption From the Payment of Legal Fees of the
Clients of the National Committee on Legal Aid (NCLA) and of the Legal Aid Offices in
the Local Chapters of the Integrated Bar of the Philippines (IBP) (which shall be
assigned the docket number A.M. No. 08-11-7-SC [IRR] provided in this resolution is
hereby APPROVED. In this connection, the Clerk of Court is DIRECTED to cause the
publication of the said rule in a newspaper of general circulation within five days from
the promulgation of this resolution.

The Office of the Court Administrator is hereby directed to promptly issue a circular to
inform all courts in the Philippines of the import of this resolution.

Begun and held in Metro Manila, on Monday, the twenty-seventh day of July, two
thousand nine.

REPUBLIC ACT N0. 9745

AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND

DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES
THEREFOR
 Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:

Section 1. Short Title. - This Ad shall be known as the "Anti-Torture Act of 2009".

Section 2. Statement of Policy. - It is hereby declared the policy of the State:

(a) To value the dignity of every human person and guarantee full respect for
human rights;

(b) To ensure that the human rights of all persons, including suspects, detainees
and prisoners are respected at all times; and that no person placed under
investigation or held in custody of any person in authority or, agent of a person
authority shall be subjected to physical, psychological or mental harm, force,
violence, threat or intimidation or any act that impairs his/her free wi11 or in any
manner demeans or degrades human dignity;

(c) To ensure that secret detention places, solitary, incommunicado or other

similar forms of detention, where torture may be carried out with impunity, are
prohibited; and

(d) To fully adhere to the principles and standards on the absolute condemnation
and prohibition of torture as provided for in the 1987 Philippine Constitution;
various international instruments to which the Philippines is a State party such
as, but not limited to, the International Covenant on Civil and Political Rights
(ICCPR), the Convention on the Rights of the Child (CRC), the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDA W) and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT); and all other relevant international human rights
instruments to which the Philippines is a signatory.

Section 3. Definitions. - For purposes of this Act, the following terms shall mean:

(a) "Torture" refers to an act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining
from him/her or a third person information or a confession; punishing him/her for
an act he/she or a third person has committed or is suspected of having
committed; or intimidating or coercing him/her or a third person; or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a person in authority
or agent of a person in authority. It does not include pain or Buffering arising only
from, inherent in or incidental to lawful sanctions.

(b) "Other cruel, inhuman and degrading treatment or punishment" refers to a

deliberate and aggravated treatment or punishment not enumerated under
Section 4 of this Act, inflicted by a person in authority or agent of a person in
 authority against a person under his/her custody, which attains a level of severity
causing suffering, gross humiliation or debasement to the latter.

(c) "Victim" refers to the person subjected to torture or other cruel, inhuman and
degrading treatment or punishment as defined above and any individual who has
suffered harm as a result of any act(s) of torture, or other cruel, inhuman and
degrading treatment or punishment.

(d) "Order of Battle" refers to any document or determination made by the

military, police or any law enforcement agency of the government, listing the
names of persons and organizations that it perceives to be enemies of the State
and that it considers as legitimate targets as combatants that it could deal with,
through the use of means allowed by domestic and international law.

Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be
limited to, the following:

(a) Physical torture is a form of treatment or punishment inflicted by a person in

authority or agent of a person in authority upon another in his/her custody that
causes severe pain, exhaustion, disability or dysfunction of one or more parts of
the body, such as:

(1) Systematic beating, headbanging, punching, kicking, striking with

truncheon or rifle butt or other similar objects, and jumping on the
stomach;

(2) Food deprivation or forcible feeding with spoiled food, animal or human
excreta and other stuff or substances not normally eaten;

(3) Electric shock;

(4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by
the rubbing of pepper or other chemical substances on mucous
membranes, or acids or spices directly on the wound(s);

(5) The submersion of the head in water or water polluted with excrement,
urine, vomit and/or blood until the brink of suffocation;

(6) Being tied or forced to assume fixed and stressful bodily position;

(7) Rape and sexual abuse, including the insertion of foreign objects into
the sex organ or rectum, or electrical torture of the genitals;

(8) Mutilation or amputation of the essential parts of the body such as the
genitalia, ear, tongue, etc.;
 (9) Dental torture or the forced extraction of the teeth;

(10) Pulling out of fingernails;

(11) Harmful exposure to the elements such as sunlight and extreme cold;

(12) The use of plastic bag and other materials placed over the head to
the point of asphyxiation;

(13) The use of psychoactive drugs to change the perception, memory.

alertness or will of a person, such as:

(i) The administration or drugs to induce confession and/or reduce mental

competency; or

(ii) The use of drugs to induce extreme pain or certain symptoms of a

disease; and

(14) Other analogous acts of physical torture; and

(b) "Mental/Psychological Torture" refers to acts committed by a person in

authority or agent of a person in authority which are calculated to affect or
confuse the mind and/or undermine a person's dignity and morale, such as:

(1) Blindfolding;

(2) Threatening a person(s) or his/fher relative(s) with bodily harm,

execution or other wrongful acts;

(3) Confinement in solitary cells or secret detention places;

(4) Prolonged interrogation;

(5) Preparing a prisoner for a "show trial", public display or public

humiliation of a detainee or prisoner;

(6) Causing unscheduled transfer of a person deprived of liberty from one

place to another, creating the belief that he/she shall be summarily
executed;

(7) Maltreating a member/s of a person's family;

(8) Causing the torture sessions to be witnessed by the person's family,

relatives or any third party;

(9) Denial of sleep/rest;

 (10) Shame infliction such as stripping the person naked, parading him/her
in public places, shaving the victim's head or putting marks on his/her
body against his/her will;

(11) Deliberately prohibiting the victim to communicate with any member

of his/her family; and

(12) Other analogous acts of mental/psychological torture.

Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other

cruel, inhuman or degrading treatment or punishment refers to a deliberate and
aggravated treatment or punishment not enumerated under Section 4 of this Act,
inflicted by a person in authority or agent of a person in authority against another person
in custody, which attains a level of severity sufficient to cause suffering, gross
humiliation or debasement to the latter. The assessment of the level of severity shall
depend on all the circumstances of the case, including the duration of the treatment or
punishment, its physical and mental effects and, in some cases, the sex, religion, age
and state of health of the victim.

Section 6. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment, An Absolute Bight. - Torture and other cruel, inhuman and degrading
treatment or punishment as criminal acts shall apply to all circumstances. A state of war
or a threat of war, internal political instability, or any other public emergency, or a
document or any determination comprising an "order of battle" shall not and can never
be invoked as a justification for torture and other cruel, inhuman and degrading
treatment or punishment.

Section 7. Prohibited Detention. - Secret detention places, solitary confinement,

incommunicado or other similar forms of detention, where torture may be carried out
with impunity. Are hereby prohibited.

In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines
(AFP) and other law enforcement. agencies concerned shall make an updated list of all
detention centers and facilities under their respective jurisdictions with the
corresponding data on the prisoners or detainees incarcerated or detained therein such
as, among others, names, date of arrest and incarceration, and the crime or offense
committed. This list shall be made available to the public at all times, with a copy of the
complete list available at the respective national headquarters of the PNP and AFP. A
copy of the complete list shall likewise be submitted by the PNP, AFP and all other law
enforcement agencies to the Commission on Human Rights (CHR), such list to be
periodically updated, by the same agencies, within the first five (5) days of every month
at the minimum. Every regional office of the PNP, AFP and other law enforcement
agencies shall also maintain a similar list far all detainees and detention facilities within
their respective areas, and shall make the same available to the public at all times at
their respective regional headquarters, and submit a copy. updated in the same manner
provided above, to the respective regional offices of the CHR.
Section 8. Applicability of the Exclusionary Rule; Exception. - Any confession,
admission or statement obtained as a result of torture shall be inadmissible in evidence
in any proceedings, except if the same is used as evidence against a person or persons
accused of committing torture.

Section 9. Institutional Protection of Torture Victims and Other Persons Involved. - A

victim of torture shall have the following rights in the institution of a criminal complaint
for torture:

(a) To have a prompt and an impartial investigation by the CHR and by agencies
of government concerned such as the Department of Justice (DOJ), the Public
Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and
the AFP. A prompt investigation shall mean a maximum period of sixty (60)
working days from the time a complaint for torture is filed within which an
investigation report and/or resolution shall be completed and made available. An
appeal whenever available shall be resolved within the same period prescribed
herein,

(b) To have sufficient government protection against all forms of harassment;

threat and/or intimidation as a consequence of the filing of said complaint or the
presentation of evidence therefor. In which case, the State through its
appropriate agencies shall afford security in order to ensure his/her safety and all
other persons involved in the investigation and prosecution such as, but not
limited to, his/her lawyer, witnesses and relatives; and

(c) To be accorded sufficient protection in the manner by which he/she testifies

and presents evidence in any fora in order to avoid further trauma.

Section 10. Disposition of Writs of Habeas Corpus, Amparo and Habeas Data

Proceedings and Compliance with a Judicial 07'der. - A writ of habeas corpus or writ of
amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture
or other cruel, degrading and inhuman treatment or punishment shall be disposed of
expeditiously and any order of release by virtue thereof, or other appropriate order of a
court relative thereto, shall be executed or complied with immediately.

Section 11. Assistance in Filing a Complaint. - The CHR and the PAO shall render legal
assistance in the investigation and monitoring and/or filing of the complaint for a person
who suffers torture and other cruel, inhuman and degrading treatment or punishment, or
for any interested party thereto.

The victim or interested party may also seek legal assistance from the Barangay Human
Rights Action Center (BRRAC) nearest him/her as well as from human rights
nongovernment organizations (NGOs).

Section 12. Right to' Physical, Medical and Psychological Examination. - Before and
after interrogation, every person arrested, detained or under custodial investigation shall
have the right to he informed of his/her right to demand physical examination by an
independent and competent doctor of his/her own choice. If such person cannot afford
the services of his/her own doctor, he/she shall he provided by the State with a
competent and independent doctor to conduct physical examination. The State shall
endeavor to provide the victim with psychological evaluation if available under the
circumstances. If the person arrested is a female, she shall be attended to preferably by
a female doctor. Furthermore, any person arrested, detained or under custodial
investigation, including his/her immediate family, shall have the right to immediate
access to proper and adequate medical treatment. The physical examination and/or
psychological evaluation of the victim shall be contained in a medical report, duly signed
by the attending physician, which shall include in detail his/her medical history and
findings, and which shall he attached to the custodial investigation report. Such report
shall be considered a public document.

Following applicable protocol agreed upon by agencies tasked to conduct physical,

psychological and mental examinations, the medical reports shall, among others,
include:

(a) The name, age and address of the patient or victim;

(b) The name and address of the nearest kin of the patient or victim;

(c) The name and address of the person who brought the patient or victim for
physical, psychological and mental examination, and/or medical treatment;

(d) The nature and probable cause of the patient or victim's injury, pain and
disease and/or trauma;

(e) The approximate time and date when the injury, pain, disease and/or trauma
was/were sustained;

(f) The place where the injury, pain, disease and/or trauma was/were sustained;

(g) The time, date and nature of treatment necessary; and

(h) The diagnosis, the prognosis and/or disposition of the patient.

Any person who does not wish to avail of the rights under this pr<;lvision may knowingly
and voluntarily waive such rights in writing, executed in the presence and assistance of
his/her counsel.

Section 13. Who are Criminally Liable. - Any person who actually participated Or
induced another in the commission of torture or other cruel, inhuman and degrading
treatment or punishment or who cooperated in the execution of the act of torture or
other cruel, inhuman and degrading treatment or punishment by previous or
simultaneous acts shall be liable as principal
Any superior military, police or law enforcement officer or senior government official who
issued an order to any lower ranking personnel to commit torture for whatever purpose
shall be held equally liable as principals.

The immediate commanding officer of the unit concerned of the AFP or the immediate
senior public official of the PNP and other law enforcement agencies shall be held liable
as a principal to the crime of torture or other cruel or inhuman and degrading treatment
or punishment for any act or omission, or negligence committed by him/her that shall
have led, assisted, abetted or allowed, whether directly or indirectly, the commission
thereof by his/her subordinates. If he/she has knowledge of or, owing to the
circumstances at the time, should have known that acts of torture or other cruel,
inhuman and degrading treatment or punishment shall be committed, is being
committed, or has been committed by his/her subordinates or by others within his/her
area of responsibility and, despite such knowledge, did not take preventive or corrective
action either before, during or immediately after its commission, when he/she has the
authority to prevent or investigate allegations of torture or other cruel, inhuman and
degrading treatment or punishment but failed to prevent or investigate allegations of
such act, whether deliberately or due to negligence shall also be liable as principals.

Any public officer or employee shall be liable as an accessory if he/she has knowledge
that torture or other cruel, inhuman and degrading treatment or punishment is being
committed and without having participated therein, either as principal or accomplice,
takes part subsequent to its commission in any of the following manner:

(a) By themselves profiting from or assisting the offender to profit from the effects
of the act of torture or other cruel, inhuman and degrading treatment or
punishment;

(b) By concealing the act of torture or other cruel, inhuman and degrading
treatment or punishment and/or destroying the effects or instruments thereof in
order to prevent its discovery; or(c) By harboring, concealing or assisting m the
escape of the principal/s in the act of torture or other cruel, inhuman and
degrading treatment or punishment: Provided, That the accessory acts are done
with the abuse of the official's public functions.

Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be imposed upon
the perpetrators of the following acts:

(1) Torture resulting in the death of any person;

(2) Torture resulting in mutilation;

(3) Torture with rape;

 (4) Torture with other forms of sexual abuse and, in consequence of
torture, the victim shall have become insane, imbecile, impotent, blind or
maimed for life; and

(5) Torture committed against children.

(b) The penalty of reclusion temporal shall be imposed on those who commit any
act of mental/psychological torture resulting in insanity, complete or partial
amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt,
worthlessness or shame.

(c) The penalty of prision correccional shall be imposed on those who commit
any act of torture resulting in psychological, mental and emotional harm other
than those described 1n paragraph (b) of this section. '

(d) The penalty of prision mayor in its medium and maximum periods shall be
imposed if, in consequence of torture, the victim shall have lost the power of
speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot,
an arm or a leg; or shall have lost the use of any such member; Or shall have
become permanently incapacitated for labor.

(e) The penalty of prision mayor in its minimum and medium periods shall be
imposed if, in consequence of torture, the victim shall have become deformed or
shall have lost any part of his/her body other than those aforecited, or shall have
lost the use thereof, or shall have been ill or incapacitated for labor for a period of
more than ninety (90) days.

(f) The penalty of prision correccional in its maximum period to prision mayor in
its minimum period shall be imposed if, in consequence of torture, the victim shall
have been ill or incapacitated for labor for mare than thirty (30) days but not more
than ninety (90) days.

(g) The penalty of prision correccional in its minimum and medium period shall be
imposed if, in consequence of torture, the victim shall have been ill or
incapacitated for labor for thirty (30) days or less.

(h) The penalty of arresto mayor shall be imposed for acts constituting cruel,
inhuman or degrading treatment or punishment as defined in Section 5 of this
Act.

(i) The penalty of prision correccional shall be imposed upon those who
establish, operate and maintain secret detention places and/or effect or cause to
effect solitary confinement, incommunicado or other similar forms of prohibited
detention as provided in Section 7 of this Act where torture may be carried out
with impunity.
 (j) The penalty of arresto mayor shall be imposed upon the responsible officers or
personnel of the AFP, the PNP and other law enforcement agencies for failure to
perform his/her duty to maintain, submit or make available to the public an
updated list of detention centers and facilities with the corresponding data on the
prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of
this Act.

Section 15. Torture as a Separate and Independent Crime. - Torture as a crime shall

not absorb or shall not be absorbed by any other crime or felony committed as a
consequence, or as a means in the conduct or commission thereof. In which case,
torture shall be treated as a separate and independent criminal act whose penalties
shall be imposable without prejudice to any other criminal liability provided for by
domestic and international laws.

Section 16. Exclusion from the Coverage of Special Amnesty Law. - In order not to
depreciate the crime of torture, persons who have committed any act of torture shall not
benefit from any special amnesty law or similar measures that will have the effect of
exempting them from any criminal proceedings and sanctions.

Section 17. Applicability of Refouler. - No person shall be expelled, returned or

extradited to another State where there are substantial grounds to believe that such
person shall be in danger of being subjected to torture. For the purposes of determining
whether such grounds exist, the Secretary of the Department of Foreign Affairs (DFA)
and the Secretary of the DOJ, in coordination with the Chairperson of the CHR, shall
take into account all relevant considerations including, where applicable and not limited
to, the existence in the requesting State of a consistent pattern of gross, flagrant or
mass violations of human rights.

Section 18. Compensation to Victims of Torture. - Any person who has suffered torture
shall have the right to claim for compensation as provided for under Republic Act No.
7309: Provided, That in no case shall compensation be any lower than Ten thousand
pesos (P10,000.00). Victims of torture shall also have the right to claim for
compensation from such other financial relief programs that may be made available to
him/her under existing law and rules and regulations.

Section 19. Formulation of a Rehabilitation Program. - Within one (1) year from the
effectivity of this Act, the Department of Social Welfare and Development (DSWD), the
DOJ and the Department of Health (DOH) and such other concerned government
agencies, and human rights organizations shall formulate a comprehensive
rehabilitation program for victims of torture and their families. The DSWD, the DOJ and
thc DOH shall also call on human rights nongovernment organizations duly recognized
by the government to actively participate in the formulation of such program that shall
provide for the physical, mental, social, psychological healing and development of
victims of torture and their families. Toward the attainment of restorative justice, a
parallel rehabilitation program for persons who have committed torture and other cruel,
inhuman and degrading punishment shall likewise be formulated by the same agencies.
Section 20. Monitoring of Compliance with this Act. - An Oversight Committee is hereby
created to periodically oversee the implementation of this Act. The Committee shall be
headed by a Commissioner of the CRR, with the following as members: the
Chairperson of the Senate Committee on Justice and Human Rights, the respective
Chairpersons of the House of Representatives' Committees on Justice and Human
Rights, and the Minority Leaders of both houses or their respective representatives in
the minority.

Section 21. Education and Information Campaign. - The CHR, the DOJ, the
Department of National Defense (DND), the Department of the Interior and Local
Government (DILG) and such other concerned parties in both the public and private
sectors shall ensure that education and information regarding prohibition against torture
and other cruel, inhuman and degrading treatment or punishment shall be fully included
in the training of law enforcement personnel, civil or military, medical personnel, public
officials and other persons who may be involved in the custody, interrogation or
treatment of any individual subjected to any form of arrest, detention or imprisonment.
The Department of Education (DepED) and the Commission on Higher Education
(CHED) shall also ensure the integration of human rights education courses in all
primary, secondary and tertiary level academic institutions nationwide.

Section 22. Applicability of the Revised Penal Code. - The provisions of the Revised
Penal Code insofar as they are applicable shall be suppletory to this Act. Moreover, if
the commission of any crime punishable under Title Eight (Crimes Against Persons) and
Title Nine (Crimes Against Personal Liberty and Security) of the Revised Penal Code is
attended by any of the acts constituting torture and other cruel, inhuman and degrading
treatment or punishment as defined herein, the penalty to be imposed shall be in its
maximum period.

Section 23. Appropriations. - The amount of Five million pesos (Php5,000,000.00) is

hereby appropriated to the CHR for the initial implementation of tills Act. Thereafter,
such sums as may be necessary for the continued implementation of this Act shall be
included in the annual General Appropriations Act.

Section 24. Implementing Rules and Regulations. - The DOJ and the CHR, with the
active participation of human rights nongovernmental organizations, shall promulgate
the rules and regulations for the effective implementation of tills Act. They shall also
ensure the full dissemination of such rules and regulations to all officers and members
of various law enforcement agencies.

Section 25. Separability Clause. - If any provision of this Act is declared invalid or

unconstitutional, the other provisions not affected thereby shall continue to be in full
force and effect.

Section 26. Repealing Clause. - All laws, decrees, executive orders or rules and
regulations contrary to or inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
Section 27. Effectivity. - This Act shall take effect fifteen (15) days after its publication in
the Official Gazette or in at least two (2) newspapers of general circulation.

Republic Act No. 7438             April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR

UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE
ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of
every human being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation;

Duties of Public Officers. –

(a) Any person arrested detained or under custodial investigation shall at all
times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his place,
who arrests, detains or investigates any person for the commission of an offense
shall inform the latter, in a language known to and understood by him, of his
rights to remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial investigation. If such
person cannot afford the services of his own counsel, he must be provided with a
competent and independent counsel by the investigating officer.lawphi1Ÿ

(c) The custodial investigation report shall be reduced to writing by the

investigating officer, provided that before such report is signed, or thumbmarked
if the person arrested or detained does not know how to read and write, it shall
be read and adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language or dialect known to
such arrested or detained person, otherwise, such investigation report shall be
null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under

custodial investigation shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence, upon a valid waiver, and in the
presence of any of the parents, elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial confession
shall be inadmissible as evidence in any proceeding.
 (e) Any waiver by a person arrested or detained under the provisions of Article
125 of the Revised Penal Code, or under custodial investigation, shall be in
writing and signed by such person in the presence of his counsel; otherwise the
waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be

allowed visits by or conferences with any member of his immediate family, or any
medical doctor or priest or religious minister chosen by him or by any member of
his immediate family or by his counsel, or by any national non-governmental
organization duly accredited by the Commission on Human Rights of by any
international non-governmental organization duly accredited by the Office of the
President. The person's "immediate family" shall include his or her spouse, fiancé
or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or
aunt, nephew or niece, and guardian or ward.

As used in this Act, "custodial investigation" shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting" officer for
any violation of law.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly
affected by the case, those charged with conducting preliminary investigation or those
charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to the
following fees;

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is
chargeable with light felonies;lawphi1©alf

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is
chargeable with less grave or grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is
chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where
the custodial investigation is conducted, provided that if the municipality of city
cannot pay such fee, the province comprising such municipality or city shall pay
the fee: Provided, That the Municipal or City Treasurer must certify that no funds
are available to pay the fees of assisting counsel before the province pays said
fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the
suspected person can only be detained by the investigating officer in accordance with
the provisions of Article 125 of the Revised Penal Code.
Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any
investigating officer, who fails to inform any person arrested, detained or under custodial
investigation of his right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six thousand pesos
(P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more
than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also
be imposed upon the investigating officer who has been previously convicted of a
similar offense.

The same penalties shall be imposed upon a public officer or employee, or

anyone acting upon orders of such investigating officer or in his place, who fails
to provide a competent and independent counsel to a person arrested, detained
or under custodial investigation for the commission of an offense if the latter
cannot afford the services of his own counsel.

(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 chosen by him
or by any member of his immediate family or by his counsel, from visiting and
conferring privately 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).lawphi1©

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.

Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby
repealed. Other laws, presidential decrees, executive orders or rules and regulations, or
parts thereof inconsistent with the provisions of this Act are repealed or modified
accordingly.

Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its
publication in the Official Gazette or in any daily newspapers of general circulation in the
Philippines.
G.R. No. L-51770 March 20, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRANCISCO GALIT, defendant-appellant.

CONCEPCION, JR., J:

1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He had
been detained and interrogated almost continuously for five days, to no avail. He
consistently maintained his innocence. There was no evidence to link him to the crime.
Obviously, something drastic had to be done. A confession was absolutely necessary.
So the investigating officers began to maul him and to torture him physically. Still the
prisoner insisted on his innocence. His will had to be broken. A confession must be
obtained. So they continued to maltreat and beat him. 'They covered his face with a rag
and pushed his face into a toilet bowl full of human waste. The prisoner could not take
any more. His body could no longer endure the pain inflicted on him and the indignities
he had to suffer. His will had been broken. He admitted what the investigating officers
wanted him to admit and he signed the confession they prepared. Later, against his will,
he posed for pictures as directed by his investigators, purporting it to be a reenactment.

2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no
it did not. It happened in the Philippines. In this case before Us.

3. The Revised Penal Code punishes the maltreatment of prisoners as follows:

ART. 235. Maltreatment of prisoners. — The penalty of arresto mayor in

its medium period to prision correccional in its minimum period, in addition
to his liability for the physical injuries or damage caused, shall be imposed
upon any public officer or employee who shall over do himself in the
correction or handling of a prisoner or detention prisoner under his charge,
by the imposition of punishments in a cruel and humiliating manner.

If the purpose of the maltreatment is to extort a confession, or to obtain

some information from the prisoner, the offender shall be punished
by prision correccional in its minimum period, temporary special
disqualification and a fine not exceeding 500 pesos, in addition to his
liability for the physical injuries or damage caused.

4. This Court in a long line of decisions over the years, the latest being the case
of People vs. Cabrera, 1 has consistently and strongly condemned the practice of
maltreating prisoners to extort confessions from them as a grave and unforgivable
violation of human rights. But the practice persists. Fortunately, such instances
constitute the exception rather than the general rule.
5. Before Us for mandatory review is the death sentence imposed upon the accused
Francisco Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-
2589 of said court.

6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a
widow, was found dead in the bedroom of her house located at Barrio Geronimo,
Montalban, Rizal, as a result of seven (7) wounds inflicted upon different parts of her
body by a blunt instrument. 2 More than two weeks thereafter, police authorities of
Montalban picked up the herein accused, Francisco Galit, an ordinary construction
worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the following day,
however, September 8, 1977, the case was referred to the National Bureau of
Investigation (NBI) for further investigation in view of the alleged limited facilities of the
Montalban police station. Accordingly, the herein accused was brought to the NBI where
he was investigated by a team headed by NBI Agent Carlos Flores. 3 NBI Agent Flores
conducted a preliminary interview of the suspect who allegedly gave evasive answers to
his questions. 4 But the following day, September 9, 1977, Francisco Galit voluntarily
executed a Salaysay admitting participation in the commission of the crime. He
implicated Juling Dulay and Pabling Dulay as his companions in the crime. 5 As a result,
he was charged with the crime of Robbery with Homicide, in an information filed before
the Circuit Criminal Court of Pasig, Rizal, committed as follows:

That on or about the 23rd day of August 1977 in the municipality of

Montalban, province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together with Juling Doe and Pabling Doe, whose true
Identities and present whereabouts are still unknown and three of them
mutually helping and aiding one another, with intent of gain and by means
of force, intimidation and violence upon the person of one Natividad
Fernando while in her dwelling, did, then and there wilfully, unlawfully, and
feloniously take, steal and carry away from the person of said Natividad
Fernando, cash money of an undetermined amount, belonging to said
Natividad Fernando, thereby causing damage and prejudice to the latter in
an undetermined amount; that by reason or on the occasion of said
robbery, and for purpose of enabling them (accused) to take, steal and
carry away the said cash money in pursuance of their conspiracy and for
the purpose of insuring the success of their criminal act, with intent to kill,
did, then and there wilfully, unlawfully, and feloniously attack, assault and
stab with a dagger said Natividad Fernando on the different parts of her
body, thereby inflicting multiple injuries on the head and extremities, which
directly caused her death, and the total amount of the loss is P10,000.00
including valuables and cash.

Trial was held, and on August 11, 1978, immediately after the accused had terminated
the presentation of his evidence, the trial judge dictated his decision on the case in open
court, finding the accused guilty as charged and sentencing him to suffer the death
penalty; to indemnify the heirs of the victim in the sum of P110,000.00, and to pay the
costs. Hence, the present recourse.

7. The incriminatory facts of the case, as found by the trial court, are as follows:

From the evidence adduced in this case, it was gathered that in the early
morning of August 23, 1977, a 70-year old woman named Natividad
Fernando, widow, in the twilight of her life, was robbed and then hacked to
death by the accused and two others in her (victim's) own residence at
Montalban, Rizal.

Prosecution witness Florentino Valentino testified that he heard accused

Francisco Galit and his wife having an argument in connection with the
robbery and killing of the victim, Natividad Fernando. It appears that on
August 18, 1977, accused Galit and two others, namely, Juling Dulay and
a certain "Pabling" accidentally met each other at Marikina, Rizal, and in
their conversation, the three agreed to rob Natividad Fernando; that it was
further agreed among them to enter the premises of the victim's house at
the back yard by climbing over the fence; that once inside the premises,
they will search every room, especially the aparador and filing cabinets,
with the sole aim of looking for cash money and other valuables.

Witness Valentino further testified that on August 22, 1977, at around 6:00
o'clock in the afternoon, accused Francisco Galit and his two companions,
Juling Dulay and Pabling, as per their previous agreement, met at the
place where they formerly saw each other in Mariquina, Rizal; that the
three conspirators took a jeepney for Montalban and upon passing the
Montalban Municipal Building, they stopped and they waited at the side of
the road until the hour of midnight; that at about 12:00 o'clock that night,
the three repaired to the premises of the victim, Natividad Fernando; that
they entered the said premises through the back wall of the house; that
while entering the premises of said house, Juling Dulay saw a bolo, lying
near the piggery compound, which he picked up and used it to destroy the
back portion of the wall of the house; that it was Juling Dulay who first
entered the house through the hole that they made, followed by the
accused Galit and next to him was "Pabling", that it was already early
dawn of August 23, 1977 when the three were able to gain entrance into
the house of the victim; as the three could not find anything valuable
inside the first room that they entered, Juling Dulay destroyed the screen
of the door of the victim, Natividad Fernando; that upon entering the room
of the victim, the three accused decided to kill first the victim, Natividad
Fernando, before searching the room for valuables; that Juling Dulay, who
was then holding the bolo, began hacking the victim, who was then
sleeping, and accused Galit heard a moaning sound from the victim; that
after the victim was killed, the three accused began searching the room for
valuables; that they helped each other in opening the iron cabinet inside
 the room of the victim, where they found some money; that when the three
accused left the room of the victim, they brought with them some papers
and pictures which they threw outside; that after killing and robbing the
victim, the three accused went out of the premises of the house, using the
same way by which they gained entrance, which was through the back
portion of the wall; that the three accused walked towards the river bank
where they divided the loot that they got from the room of the victim; that
their respective shares amount to P70.00 for each of them; and that after
receiving their shares of the loot, the three accused left and went home.

When witness Florentino Valentino was in his room, which was adjoining
that of accused Francisco Galit, he overheard accused Galit and his wife
quarreling about the intention of accused Galit to leave their residence
immediately; that he further stated that he overheard accused Galit saying
that he and his other two companions robbed and killed Natividad
Fernando.

As a result of the killing, the victim, Natividad Fernando, suffered no less

than seven stab wounds. There was massive cerebral hemorrhage and
the cause of death was due to shock and hemorrhage, as evidenced by
the Medico-Legal Necropsy Report (Exhs. 'C' and 'C-2'), and the pictures
taken of the deceased victim (Exhs. 'E', 'E-1' and 'E-2').

8. The accused, upon the other hand, denied participation in the commission of the
crime. He claimed that he was in his house in Marikina, Rizal, when the crime was
committed in Montalban, Rizal. He also assailed the admissibility of the extra-judicial
confession extracted from him through torture, force and intimidation as described
earlier, and without the benefit of counsel.

9. After a review of the records, We find that the evidence presented by the prosecution
does not support a conviction. In fact, the findings of the trial court relative to the acts
attributed to the accused are not supported by competent evidence. The principal
prosecution witness, Florentino Valentino merely testified that he and the accused were
living together in one house in Marikina, Rizal, on August 23, 1977, because the mother
of his wife is the wife of the accused; that when he returned home at about 4:00 o'clock
in the morning from the police station of Marikina, Rizal, the accused and his wife were
quarreling (nagtatalo); that he heard that the accused was leaving the house because
he and his companions had robbed "Aling Nene", the owner of a poultry farm and
piggery in Montalban, Rizal; that the wife of the accused was imploring him not to leave,
but the latter was insistent; that he saw the accused carrying a bag containing about two
handfuls (dakot) of coins which he had taken from Aling Nene; that upon learning of
what the accused had done, he went to the Montalban police the next day and reported
to the police chief about what he had heard; and that a week later, Montalban
policemen went to their house and arrested the accused. 6
10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct
procedure for peace officers to follow when making an arrest and in conducting a
custodial investigation, and which We reiterate:

7. At the time a person is arrested, it shall be the duty of the arresting

officer to inform him of the reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of his constitutional rights to
remain silent and to counsel, and that any statement he might make could
be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means — by telephone if possible — or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it
that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested,
by any person on his behalf, or appointed by the court upon petition either
of the detainee himself or by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole
or in part, shall be inadmissible in evidence.

11. There were no eyewitnesses, no property recovered from the accused, no state
witnesses, and not even fingerprints of the accused at the scene of the crime. The only
evidence against the accused is his alleged confession. It behooves Us therefore to
give it a close scrutiny. The statement begins as follows:

I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong

mga karapatan sa ilalim ng Saligang-Batas ng Pilipinas
na kung inyong nanaisin ay maaaring hindi kayo
magbigay ng isang salaysay, na hindi rin kayo maaaring
pilitin o saktan at pangakuan upang magbigay ng
naturang salaysay, na anuman ang inyong sasabihin sa
pagsisiyasat na ito ay maaaring laban sa inyo sa
anumang usapin na maaaring ilahad sa anumang
hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat
na ito ay maaaring katulungin mo ang isang
manananggol at kung sakaling hindi mo kayang bayaran
ang isang manananggol ay maaaring bigyan ka ng isa ng
NBI. Ngayon at alam mo na ang mga ito nakahanda ka
bang magbigay ng isang kusang-loob na salaysay sa
pagtatanong na ito?

SAGOT: Opo.

12. Such a long question followed by a monosyllabic answer does not satisfy the
requirements of the law that the accused be informed of his rights under the
Constitution and our laws. Instead there should be several short and clear questions
and every right explained in simple words in a dialect or language known to the person
under investigation. Accused is from Samar and there is no showing that he
understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to
communicate with his lawyer, a relative, or a friend. In fact, his sisters and other
relatives did not know that he had been brought to the NBI for investigation and it was
only about two weeks after he had executed the salaysay that his relatives were
allowed to visit him. His statement does not even contain any waiver of right to counsel
and yet during the investigation he was not assisted by one. At the supposed
reenactment, again accused was not assisted by counsel of his choice. These
constitute gross violations of his rights.

13. The alleged confession and the pictures of the supposed re-enactment are
inadmissible as evidence because they were obtained in a manner contrary to law.

14. Trial courts are cautioned to look carefully into the circumstances surrounding the
taking of any confession, especially where the prisoner claims having been maltreated
into giving one. Where there is any doubt as to its voluntariness, the same must be
rejected in toto.

15. Let a copy of this decision be furnished the Minister of Justice for whatever action
he may deem proper to take against the investigating officers.

16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE,
and another one entered ACQUITTING the accused Francisco Galit of the crime
charged. Let him be released from custody immediately unless held on other charges.
With costs de oficio.

17. SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana, Escolin,

Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

[G.R. No. 132154. June 29, 2000]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PACITO ORDOO Y

NEGRANZA alias ASING and APOLONIO MEDINA Y NOSUELO alias POLING,
accused-appellants.

DECISION

PER CURIAM :

COURTS are confronted, repeatedly, with the difficult task of scrutinizing the
sufficiency of extrajudicial confessions as basis for convicting the accused. The
drive to apprehend the culprits at any cost, particularly in crimes characterized by
brutality and savagery, not too infrequently tempts law enforcement agencies to
take unwarranted shortcuts and disregard constitutional and legal constraints that
are intended to ensure that only the guilty are punished. In the delicate process
of establishing guilt beyond reasonable doubt, courts play a crucial role in
assuring that the evidence gathered by government agents scrupulously meets
the exacting constitutional standards which if not met impose a strict exclusionary
rule, i.e., "any confession or admission obtained in violation of Art. II, Sec. 12 (1),
shall be inadmissible in evidence."

This case is on automatic review of the 11 December 1997 Decision of the

Regional Trial Court, Br. 34, Balaoan, La Union, in Crim. Case No. 2415 finding
both accused Pacito Ordoo y Negranza alias Asing and Apolonio Medina y
Nosuelo alias Poling guilty beyond reasonable doubt of rape with homicide and
imposing upon each of them two (2) separate death penalties.

The records show that on 5 August 1994 the decomposing body of a young girl
was found among the bushes near a bridge in Barangay Poblacion, Santol, La
Union. The girl was later identified as Shirley Victore, fifteen (15) years old, a
resident of Barangay Guesset, Poblacion, Santol, La Union, who three (3) days
before was reported missing. Post-mortem examination conducted by Dr. Arturo
Llavore, a medico-legal officer of the NBI, revealed that the victim was raped and
strangled to death.

Unidentified sources pointed to Pacito Ordoo and Apolonio Medina as the

authors of the crime. Acting on this lead, the police thereupon invited the two (2)
suspects and brought them to the police station for questioning. However, for
lack of evidence then directly linking them to the crime, they were allowed to go
home.

On 10 August 1994 the accused Pacito Ordoo and Apolonio Medina returned to
the police station one after another and acknowledged that they had indeed
committed the crime. Acting on their admission, the police immediately
conducted an investigation and put their confessions in writing. The investigators
however could not at once get the services of a lawyer to assist the two (2)
accused in the course of the investigation because there were no practicing
lawyers in the Municipality of Santol, a remote town of the Province of La Union.
Be that as it may, the statements of the two (2) accused where nevertheless
taken. But before doing so, both accused were apprised in their own dialect of
their constitutional right to remain silent and to be assisted by a competent
counselof their choice. Upon their acquiescence and assurance that they
understood their rights and did not require the services of counsel, the
investigation was conducted with the Parish Priest, the Municipal Mayor, the
Chief of Police and other police officers of Santol, La Union, in attendance to
listen to and witness the giving of the voluntary statements of the two (2)
suspects who admitted their participation in the crime.
The first to confess was Apolonio Medina who in addition to the Parish Priest, the
Mayor, the Chief of Police and the other police officers was also accompanied by
his wife and mother. Apolonio Medina narrated that in the morning of 2 August
1994 while he was walking towards the house of Pacito Ordoo in Sitio Buacao,
Poblacion, Santol, La Union, he noticed a young woman walking towards the
school at the Poblacion. Upon reaching Sitio Buacao, he saw Pacito Ordoo
standing along the road. When the woman reached him he suddenly grabbed
her, held her tightly and covered her mouth with his right hand. As Medina
neared them, Ordoo turned to him and said, "Come and help me, I am feeling
uneasy."

Although Medina claimed he was surprised at the request, he nonetheless went

to Ordoo, helped him hold the legs of the young woman including her bag and
umbrella and together they carried her to the bushes where they laid her down.
Medina held her legs as requested while Ordoo continued to cover her mouth
with his hand and boxing her many times on the head. When she was already
weak and weary Ordoo knelt near her, raised her skirt and lowered her panty
down to her knees. Medina continued to remove her panty as Ordoo removed his
short pants, then his briefs. Ordoo then raped her, boxed her head continuously,
with Medina continuously pinning her legs down and boxing those legs every
time she struggled.

After Ordoo had satiated himself Medina took his turn in raping the same victim
with Ordoo holding her legs. After they were through, Medina left to watch out for
intruders while Ordoo tied a vine around the girl's neck, hanged her on a tree that
ended her life. Then, they went back to the road and parted ways.

After Medina said his piece, his wife and mother suddenly burst into tears. He
then affixed his signature on his statement and so did his wife, followed by all the
other witnesses who listened to his confession.

Pacito Ordoo narrated his story in the afternoon. According to him, in the morning
of 2 August 1994 he was on his way to Sitio Guesset, Barangay Manggaan,
Santol, La Union, when he saw a girl followed by Apolonio Medina. When the girl
was near him he immediately grabbed her and covered her mouth. Medina drew
near, held her two legs, bag and umbrella and together they carried her into the
thicket. After laying her down Ordoo boxed her breasts and face while Medina
boxed her legs. When she became weak Ordoo raised her skirt and lowered her
panty while Medina completely, removed it. Ordoo then removed his pants and
walker briefs, went on top of Shirley and as Medina spread her legs Ordoo
immediately inserted his penis into her vagina. After ejaculating Ordoo turned to
Medina for him to take his turn in raping the girl. Ordoo was now holding her legs.
At the end of his narration Ordoo affixed his thumbmark on his statement in lieu
of his signature as he did not know how to write.
Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol
police station. News about the apprehension and detention of the culprits of the
rape-slay of Shirley Victore soon spread that Roland Almoite, leading radio
announcer of radio station DZNL, visited and interviewed them. In the interview
which was duly tape-recorded both accused admitted again their complicity in the
crime and narrated individually the events surrounding their commission thereof.
According to Medina, his remorse in having committed the crime was so great
but his repentance came too late.1 He and Ordoo hoped that the parents of
Shirley Victore would forgive them.2 Upon conclusion of the interview, Roland
Almoite immediately went to radio station DZNL and played the taped interview
on the air. The same interview was played again on the air the following morning
and was heard by thousands of listeners.

A couple of days later, the police brought the two (2) accused to the office of the
PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-
door session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his
constitutional rights and, even though their confessions were already written in
their dialect, explained to them each of the questions and answers taken during
the investigation. He likewise advised them to ponder the consequences of their
confessions, leading them to defer the affixing of their second signature/
thumbmark thereon.

After a week or so, the two (2) separately went back to Atty. Corpuz and
informed him of their willingness to affix their signatures and thumbmarks for the
second time in their respective confessions. Once again Atty. Corpuz apprised
the two (2) accused of their constitutional rights, explained the contents of their
respective statements, and finally, accompanied them to Judge Fabian M.
Bautista, MTC judge of Balaoan, La Union, who further apprised the two (2)
accused of their constitutional rights and asked them if they had been coerced
into signing their confessions. They assured Judge Bautista that their statements
had been given freely and voluntarily. Upon such assurance that they had not
been coerced into giving and signing their confessions, Judge Bautista finally
asked the accused Pacito Ordoo and Apolonio Medina to affix their signatures/
thumbmarks on their respective confessions, and to subscribe the same before
him. Atty. Corpuz then signed their statements as their assisting counsel,
followed by a few members of the MTC staff who witnessed the signing.

On arraignment, in a complete turnabout, the two (2) accused pleaded not guilty.

In his defense, Pacito Ordoo testified that on 5 August 1994, while he was
cooking at home, the police arrived and invited him to the headquarters for
questioning. The police asked him his whereabouts on 2 August 1994 and he
answered that he worked in the farm of Barangay Captain Valentin Oriente.
According to Ordoo, the questioning took one (1) hour with the police boxing him
several times on his stomach and on his side. They even inserted the barrel of a
gun into his mouth in an effort to draw out answers from him. This being fruitless,
he was placed in jail and released only the following morning, 6 August 1994.
Three (3) days later, or on 9 August 1994, the police once again invited him to
the headquarters where he was told that he was responsible for the rape and
death of Shirley Victore.

Accused Pacito Ordoo insisted on his innocence and maintained that he was
working with a certain barangay captain; nonetheless, he was detained. Later
that night the police took him out from jail and brought him to the room of
investigator SPO4 Alfredo A. Ominga where he was hit with the butt of an
armalite and forced to admit to the rape and slay of Shirley Victore. On 10 August
1994 SPO4 Alfredo A. Ominga took a typewriter and asked questions from him
for one (1) hour without a lawyer assisting him nor a priest witnessing the
investigation. A barrel of a gun was placed inside his mouth forcing him to admit
the commission of the crime and to affix his thumbmark on the document. He
was also brought to the office of the PAO lawyer twice but did not affix his
thumbmark on any document because he could not understand its contents. A
radio announcer visited him inside his cell for an interview but he declined to
answer his questions. He only answered the radio announcer during his fourth
visit when SPO4 Alfredo A. Ominga threatened to hit him if he did not admit to
the commission of the crime. As to Apolonio Medina, he heard from the police
that he was also detained but maintained that he (Ordoo) did not know Apolonio.

For his part, Apolonio Medina testified that on 5 August 1994 while he was
pasturing his carabaos at Barangay Guesset, in Santol, La Union, the police
came and invited him for questioning. They asked him where he was on 2 August
1994 and he replied that he was carrying bananas for his aunt Resurreccion. The
interrogation lasted for about an hour with neither a lawyer assisting him nor a
relative being present, after which he was placed in jail. Later, he was brought
outand taken to a hut near the headquarters where he was boxed, kicked and hit
with a nightstick. He lost consciousness and recovered only after he was brought
back to his cell. That same night he was returned to the hut outside the police
headquarters where he was again boxed. On 8 August 1994, with his legs tied to
the ceiling beam, he was hanged upside down. His breast was hit with the butt of
a gun which was fired near his ear. A barrel of a gun was inserted into his mouth.
He was threatened that he would be salvaged if he did not admit to killing the
victim. He was forced to sign a statement but could not recall its date of
execution. He was brought to the office of the PAO lawyer twice but he did not
sign the document. The investigator warned him that if he did not sign he would
be buried in the pit which he himself dug. On his third visit to the office of the
PAO lawyer he signed the document. He could not remember having gone to the
office of the MTC Judge of Balaoan; La Union. He was interviewed by a radio
announcer and was instructed by the investigator to narrate those that were in
his statement. He admitted he knew Pacito Ordoo. He showed his bruises to his
mother when the latter visited him in jail, prompting the latter to request medical
treatment for her son but the request was denied.
On 11 December 1997 the trial court adjudged accused Pacito Ordoo and
Apolonio Medina guilty of the crime of rape with homicide attended with
conspiracy, and imposed upon each of them two (2) death penalties on the basis
of their extrajudicial confessions.

The accused are now before us assailing their conviction on the ground that
constitutional infirmities attended the execution of their extrajudicial confessions,
i.e., mainly the lack of counsel to assist them during custodial investigation
thereby making their confessions inadmissible in evidence.

Under the Constitution3 and the rules laid down pursuant to law4 and

jurisprudence,5 a confession to be admissible in evidence must satisfy four (4)
fundamental requirements: (a) the confession must be voluntary; (b) the
confession must be made with the assistance of competent and independent
counsel; (c) the confession must be express; and, (d) the confession must be in
writing.6 Among all these requirements none is accorded the greatest respect
than an accused's right to counsel to adequately protect him in his ignorance and
shieldhim from the otherwise condemning nature of a custodial investigation. The
person being interrogated must be assisted by counsel to avoid the pernicious
practice of extorting false or coerced admissions or confessions from the lips of
the person undergoing interrogation for the commission of the offense. 7 Hence, if
there is no counsel at the start of the custodial investigation any statement
elicited from the accused is inadmissible in evidence against him. This
exclusionary rule is premised on the presumption that the defendant is thrust into
an unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion, physical and psychological, is
forcefully apparent.8

In the instant case, custodial investigation began when the accused Ordoo and
Medina voluntarily went to the Santol Police Station to confess and the
investigating officer started asking questions to elicit information and/or
confession from them. At such point, the right of the accused to counsel
automatically attached to them. Concededly, after informing the accused of their
rights the police sought to provide them with counsel. However, none could be
furnished them due to the non-availability of practicing lawyers in Santol, La
Union, and the remoteness of the town to the next adjoining town of Balaoan, La
Union, where practicing lawyers could be found. At that stage, the police should
have already desisted from continuing with the interrogation but they persisted
and gained the consent of the accused to proceed with the investigation. To the
credit of the police, they requested the presence of the Parish Priest and the
Municipal Mayor of Santol as well as the relatives of the accused to obviate the
possibility of coercion, and to witness the voluntary execution by the accused of
their statements before the police. Nonetheless, this did not cure in any way the
absence of a lawyer during the investigation.
In providing that during the taking of an extrajudicial confession the accused's
parents, older brothers and sisters, his spouse, the municipal mayor, municipal
judge, district school supervisor, or priest or minister of the gospel as chosen by
the accused may be present, RA 7438 does not propose that they appear in the
alternative or as a substitute for counsel without any condition or clause. It is
explicitly stated therein that before the above-mentioned persons can appear two
(2) conditions must be met: (a) counsel of the accused must be absent, and, (b)
a valid waiver must be executed. RA 7438 does not therefore unconditionally and
unreservedly eliminate the necessity of counsel but underscores its importance
by requiring that a substitution of counsel with the above-mentioned persons be
made with caution and with the essential safeguards.

Hence, in the absence of such valid waiver, the Parish Priest of Santol, the
Municipal Mayor, the relatives of the accused, the Chief of Police and other
police officers of the municipality could not stand in lieu of counsel's presence.
The apparent consent of the two (2) accused in continuing with the investigation
was of no moment as a waiver to be effective must be made in writing and with
the assistance of counsel.9 Consequently, any admission obtained from the two
(2) accused emanating from such uncounselled interrogation would be
inadmissible in evidence in any proceeding.

Securing the assistance of the PAO lawyer five (5) to eight (8) days later does
not remedy this omission either. Although there was a showing that the PAO
lawyer made a thorough explanation of the rights of the accused, enlightened
them on the possible repercussions of their admissions, and even gave them
time to deliberate upon them, this aid and valuable advice given by counsel still
came several days too late. It could have no palliative effect. It could not cure the
absence of counsel during the custodial investigation when the extrajudicial
statements were being taken.10

The second affixation of the signatures/ thumbmarks of the accused on their

confessions a few days after their closed-door meeting with the PAO lawyer, in
the presence and with the signing of the MTC judge, the PAO lawyer and other
witnesses, likewise did not make their admissions an informed one. Admissions
obtained during custodial investigation without the benefit of counsel although
reduced into writing and later signed in the presence of counsel are still flawed
under the Constitution.11 If the lawyer's role is diminished to being that of a mere
witness to the signing of a prepared document albeit an indication therein that
there was compliance with the constitutional rights of the accused, the requisite
standards guaranteed by Art. III, Sec. 12, par. (1), are not met. The standards
utilized by police authorities to assure the constitutional rights of the accused in
the instant case therefore fell short of the standards demanded by the
Constitution and the law.

It should further be recalled that the accused were not effectively informed of
their constitutional rights when they were arrested, so that when they allegedly
 admitted authorship of the crime after questioning, their admissions were
obtained in violation of their constitutional rights against self-incrimination under
Sec. 20, Art. IV, of the Bill of Rights.

As testified to, the police informed the accused of their rights to remain silent and
to counsel in a dialect understood by them, but despite the accused's apparent
showing of comprehension, it is doubtful if they were able to grasp the
significance of the information being conveyed. Pertinent portions of the
extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into
English, read -

PRELIMINARY -

Mr. Pacito Ordoo, I am informing you that you are being investigated of an offense but
before we continue, I tell you that you have the right to remain silent under the new
Constitution of the Philippines.

And you are also herein reminded that all statements you give may be used for or
against you in any Philippine court as evidence and it is herein likewise reminded that
you have the right to secure the services of a lawyer of your own choice to represent
you in this investigation, do you understand all these?

A:.... Yes, sir because all that I will state will only be the truth.

Q:.... Do you want that we will continue with this investigation after having been
appraised of all your rights?

A:.... Yes, sir.

Q:.... And, do you want that we continue wit the investigation even without a lawyer of
your own choice to represent you?

A:.... Yes, sir.

Q:.... Are you now prepared to give your voluntary statement consisting only the truth,
without any lies whatsoever?

A:.... Yes, sir x x x x

PRELIMINARY -

Mr. Apolonio Medina, I inform you that you are being investigated of an offense but
before we proceed with this investigation, I am informing you that you have the right to
remain silent to all questions asked of you, according to the new Philippine Constitution.
And you are likewise reminded that all statements you give may be used for or against
you in any Philippine court and you have a right to have a lawyer of your own choice to
represent you in this investigation, do you understand this?

ANSWER - Yes, sir.

Q:.... After having known all your rights, do you want that we continue with the
investigation?

A:.... Yes, sir.

Q:.... Do you want that we continue with this investigation even without a lawyer to
represent you?

A:.... Yes, sir because all that I will state are the truth.

Q:.... Are you now prepared to give your voluntary statement consisting only the truth,
nothing but the truth?

A.... Yes, sir.

The advice proffered by the investigating officer to Ordoo starkly resembles that
given to Medina, thus leading us to conclude that the advice was given
perfunctorily and belonged to the stereotyped class - a long question by the
investigator informing the appellant of his right followed by a monosyllabic
answer - which this Court has condemned for being unsatisfactory. 12 The desired
role of counsel in the process of custodial investigation is rendered meaningless
if the lawyer gives an advice in a cursory manner as opposed to a meaningful
advocacy of the rights of the person undergoing questioning. If advice is given
casually and tritely as to be useless, understanding on the part of the accused is
sacrificed and the unconstrained giving up of a right becomes impaired.

To be informed of the right to remain silent and to counsel contemplates "the

transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle." It is not enough for
the interrogator to merely enumerate to the person under investigation his rights
as provided in Sec. 12, Art. III, of the Constitution; the interrogator must also
explain the effect of such provision in practical terms, e.g., what the person under
interrogation may or may not do, and in a language the subject fairly
understands.13

With the extrajudicial confession of the accused rendered inadmissible in

evidence, we are left with the interview taken by DZNL radio announcer Roland
Almoite as evidence. The taped interview was offered to form part of the
testimony of witness Roland Almoite to whom the admissions were made and to
prove through electronic device the voluntary admissions by the two (2) accused
that they raped and killed Shirley Victore. The defense objected to its acceptance
on the ground that its integrity had not been preserved as the tape could easily
have been spliced and tampered with.14 However, as Roland Almoite testified, it
was the original copy of the taped interview; it was not altered; the voices therein
were the voices of the two (2) accused; and, the defense never submitted
evidence to prove otherwise. Under the circumstances, we are inclined, as was
the lower court, to admit the authenticity of the taped interview.

A review of the contents of the tape as included in Roland Almoite's testimony

reveals that the interview was conducted free from any influence or intimidation
from police officers and was done willingly by the accused. Despite allegations to
the contrary, no police authority ordered or forced the accused to talk to the radio
announcer. While it may be expected that police officers were around since the
interview was held in the police station, there was no showing that they were
within hearing distance nor within the vicinity where the interview was being
conducted. At most, the participation of the police authorities was only to allow
Roland Almoite to conduct an interview.

The taped interview likewise revealed that the accused voluntarily admitted to the
rape-slay and even expressed remorse for having perpetrated the crime. We
have held that statements spontaneously made by a suspect to news reporters
on a televised interview are deemed voluntary and are admissible in
evidence.15 By analogy, statements made by herein accused to a radio
announcer should likewise be held admissible. The interview was not in the
nature of an investigation as the response of the accused was made in answer to
questions asked by the radio reporter, not by the police or any other investigating
officer. When the accused talked to the radio announcer, they did not talk to him
as a law enforcement officer, as in fact he was not, hence their uncounselled
confession to him did not violate their constitutional rights.

Sections 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal
confessions of the two (2) accused to the radio announcer. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The rights
enumerated under Sec. 12, Art. III, are guaranteed to preclude the slightest use
of coercion by the state as would lead the accused to admit something false, not
to prevent him from freely and voluntarily telling the truth. 16

The Bill of Rights does not concern itself with the relation between a private
individual and another individual. 17 It governs the relationship between the
individual and the State. The prohibitions therein are primarily addressed to the
State and its agents. They confirm that certain rights of the individual exist
without need of any governmental grant, rights that may not be taken away by
government, rights that government has the duty to protect. 18 Governmental
power is not unlimited and the Bill of Rights lays down these limitations to protect
the individual against aggression and unwarranted interference by any
department of government and its agencies.
 The admissions of the accused before the radio announcer and duly tape-
recorded are further bolstered and substantiated by the findings of the NBI
Medico-Legal Officer as reflected in the Autopsy Report/Post Mortem
Findings. The narration of the accused Apolonio Medina that Asing boxed the
victim, who was struggling as she was being raped, 19 was proved by
the Autopsy Report stating that the victim suffered contusions on the leg, right,
lateral aspect, middle third, etc.;20 that accused Pacito Ordoo boxed the face of
the victim to make her weak21 was proved by the testimony of the NBI Medico-
Legal Officer that there was blackening on the face of the victim due to
hematoma caused by violence or boxing on her face; 22 and, that accused Pacito
Ordoo hanged the victim on a tree by tying a vine around her neck, 23 was proved
by the finding of a depressed mark involving the anterior and lateral portions of
the neck.24

As to the assertion of the accused that they were tortured and subjected to
inhuman treatment, we find such allegations baseless. The accused were given
several opportunities to decry the maltreatment they allegedly suffered in the
hands of the police but at no time did they complain about it. First, they could
have told the radio announcer outright of the abuses they were subjected to
before signing their confessions. Second, when they were brought before the
PAO lawyer they likewise did not make any such claims but instead chose to
ponder over the lawyer's advice and deferred the signing of their
confessions. Lastly, they had the chance to tell the MTC judge about the fatal
defect of their confessions, if there was any, when the latter asked them whether
they voluntarily signed the same and whether coercion was used in extracting
their confessions; however, they answered in the negative. The accused cannot
therefore on a later date make assertions that they were maltreated when at no
time - during their detention and when they were in the presence of persons who
could have helped them - did they make such complaints.

The doctor who physically examined them further disproved their assertions
when she testified thus -

FISCAL TECAN:

Q:.... Now, you said that you talked with the prisoners, Pacito Ordoo and Apolonio
Medina, what did you actually tell them?

A:.... I said, "What do you feel on your body?" and I also said, "What part of your body
are (sic) painful?"

Q:.... What did they answer?

A:.... They did not answer me, sir.

Q:.... More or less, how many questions did you ask?

A:.... Only that, sir.

Q:.... After you have observed the prisoners, did you notice any injury?

A:.... None, sir x x x x

Q:.... x x x x You noticed any injury on their bodies?

A:.... None, sir, that is why I looked to see what was really painful. 25

Considering that the doctor was a witness for the defense, it was surprising that
she never mentioned about any maltreatment. She saw not a single scratch on
the bodies of the accused. She even inquired into their physical well-being but
they did not tell her of any pain or injury. They could have easily asked the doctor
for immediate treatment if indeed they were physically harmed, but they did not.
This puts their claim of maltreatment into serious doubt. With this, the testimony
of the mother of the accused Apolonio Medina alleging that the police refused
treatment for her son despite his critical condition becomes a fabrication, a mere
figment of the imagination. As found by the lower court, her tale of buying an
antibiotic for her son, all on her own, without the prescription of a doctor, is hard
to believe since she is already an elderly woman, seventy-three (73) years of
age, unschooled and illiterate.26

To further exculpate themselves, the accused invoked alibi. Ordoo testified that
at the time of the incident he was at work in the place of Barangay Captain
Valentin Oriente,27 while Medina claimed that he went to carry bananas for a
certain aunt Resurreccion.28 However, such allegations deserve no credit as alibi
becomes worthless when it is established mainly by the accused
themselves.29 The defense of alibi is always considered with suspicion and
received with caution, not only because it is inherently weak and unreliable, but
also because it can easily be fabricated.30

Quite interestingly, Bgy. Capt. Valentin Oriente was presented as a witness for
the prosecution, not for the defense, while "aunt Resurreccion" was not
presented at all. Bgy. Capt. Oriente testified that Pacito Ordoo did not work with
him on 2 August 1994; on the contrary, he saw him on the bridge at Sitio
Guesset.31

Other than their lame assertions that they were with the above-mentioned
persons, the accused failed to substantiate their defense and to give details on
what transpired that fateful day, especially since they were in the same town
where the crime happened. For alibi to Prosper, it must be convincing, enough to
preclude any doubt about the physical impossibility of the presence of the
accused at the locus criminis or its immediate vicinity at the time of the
incident.32 Since the accused failed to convince the Court otherwise, their
defense must fall.
 The lack of prior design or plan to rape and kill the victim prior to the commission
of the crime does not negate conspiracy. For conspiracy to exist, proof of an
actual planning of the perpetration of the crime is not a condition precedent. It is
sufficient that at the time of the commission of the offense the accused had the
same purpose and were united in its execution. From the foregoing, it is evident
that the accused helped each other in carrying out their beastly acts. The taped
interview as played in open court clearly revealed thus -

(STATEMENT OF ACCUSED APOLONIO MEDINA) -

INTERPRETER:

When I was walking there already about to be near him, he was already holding the
woman and said, come and help me because I was (sic) not feeling well. Well, I was
shocked of what I saw, sir. But later on, as usual I regained my composure and so I
finally went to help him, sir.

FISCAL TECAN: We will continue, Your Honor.

INTERPRETER:

And then we laid her down among the bushes then Asing boxed her because she was
struggling, Your Honor. And Asing did what he wanted, sir. And then he asked me to
take my turn and then I went outside to look and see if there are (sic) people and then
Asing went to get a vine, sir. And when I arrived at their place, he was already tieing
(sic). After that, we left for home, sir.33

xxx

(STATEMENT OF ACCUSED PACITO ORDOO)

Q:.... But Apolonio Medina was already there as your companion?

A:.... He was there already, sir. He was the one who held her legs, sir.

Q:.... Who was the first one to rape or use her?

A:.... Me, sir. And after that, Apolonio Medina, sir.

Q:.... And after you were through, what did you do, was she still conscious?

A:.... She was practically unconscious, sir.

Q:.... What did you do then?

A:.... We tied her neck and hanged her on a tree, sir. 34

The modifying circumstance of conspiracy being present, each of the accused
shall be liable for the other's acts as well. Article 335 of the Revised Penal Code
provides that "when by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death."

In 1971, in People v. Jose[35] this Court convicted the four (4) accused with
forcible abduction with rape, and three (3) counts of simple rape, and imposed
upon each of the accused four (4) death penalties in view of the existence of
conspiracy.

In 1981, in People v. Yutila[36] this Court affirmed the judgment of the court a

quo declaring each of the three (3) accused guilty of the special complex crime of
rape with homicide and sentenced each of them to suffer a single penalty of
death. However, Justice Barredo in his separate opinion interposed that in
accordance with the doctrine laid down in the Jayme Jose case, three (3) death
penalties should have been imposed on each of the accused.

In People v. Vizcarra[37] where the four (4) accused were charged with rape with
homicide, the Court held that only one of them should be held liable for the crime
of rape with homicide and all the rest for simple rape. But since four (4)
successive offenses were charged and proved, each of the accused was
imposed four (4) death sentences for four (4) separate and distinct crimes of
rape. The existence of conspiracy among them, the overwhelming evidence as to
the nature and the number of crimes committed, as well as the attendance of the
aggravating circumstances, fully justified the imposition of four (4) death
penalties.

In 1988, in People v. Dio[38] where the three (3) accused took turns in ravishing
the victim and thereafter killed her, the Court declared each of them guilty of
three (3) crimes of rape with homicide and sentenced each of them to three (3)
penalties of reclusion perpetua. The penalty in fact should have been death but
with its proscription in the 1987 Constitution the penalty imposed was reduced
to reclusion perpetua.

In 1991, in People v. Flores[39] a registered nurse was successively raped by

four (4) men and then killed. The trial court convicted each of them with the
special complex,crime of multiple rape with homicide on four (4) counts and as a
consequence thereof sentenced each of them to four (4) death penalties. This
Court affirmed the decision of the lower court with the modification that the
accused should instead suffer four (4) penalties of reclusion perpetua by reason
of the constitutional proscription on the imposition of the death penalty. The four
(4) death penalties for each of the appellants were explained to be ordained by
the fact that conspiracy had been established beyond reasonable doubt.
In 1996, in People v. Laray40 this Court convicted two (2) of the accused charged
therein with multiple rape and sentenced each of them to suffer two (2) counts
of reclusion perpetua because of the existence of conspiracy.

Accordingly, herein accused Pacito Ordoo and Apolonio Medina should be held
liable for the special complex crime of rape with homicide on two (2) counts as
defined and penalized in Art. 335 of the Revised Penal Code as amended by RA
7659.

We have held that the indemnification of the victim shall be in the amount
of P100,000.00 if the crime of rape is committed or effectively qualified by any of
the circumstances under which the death penalty is authorized by the applicable
amendatory laws.41 In addition, this Court has likewise ruled that in crimes of
rape the amount of P50,000.00 as moral damages must be awarded to the victim
without need of proof nor even pleading the basis thereof. 42

Four (4) Justices of the Court however continue to maintain the

unconstitutionality of RA 7659 insofar as it prescribes the death penalty;
nevertheless, they submit to the ruling of the majority to the effect that the law is
constitutional and that the death penalty can be lawfully imposed in the case at
bar.

WHEREFORE , the 11 December 1997 Judgment rendered by the Regional Trial

Court-Branch 34, Balaoan, La Union, is AFFIRMED with the MODIFICATION
that the two (2) accused PACITO ORDONO y NEGRANZA alias ASING and
APOLONIO MEDINA y NOSUELO alias POLING are held guilty beyond
reasonable doubt of the special complex crime of rape with homicide on two (2)
counts and are sentenced each to two (2) DEATH PENALTIES. Each of the
accused is further ordered to indemnify the heirs of Shirley Victore in the amount
of P200,000.00 as civil indemnity and P100,000.00 for moral damages for both
counts of rape. Costs against both accused.

In consonance with Sec. 25 of RA 7659 amending Art. 83 of the Revised Penal

Code, upon finality of this Decision, let the records of this case be forthwith
forwarded to the Office of the President for the possible exercise of his pardoning
power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.

G.R. No. 136253. February 21, 2001

 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. CLEMENTE JOHN
LUGOD, Accused-Appellant.

DECISION

GONZAGA-REYES, J.:

This is an automatic review of the Judgment 1 dated October 8, 1998 of the Regional

Trial Court (RTC) of Santa Cruz, Laguna, Branch 28 in Criminal Case No. SC-6670
finding the accused, Clemente John Lugod alias HONASAN, guilty beyond reasonable
doubt of the crime of rape with homicide.

On October 10, 1997, an Information 2 for rape with homicide was filed against the
accused as follows:

That on or about September 16, 1997 in the municipality of Cavinti, province of Laguna
and within the jurisdiction of this Honorable Court, the above-named accused by means
force and intimidation and with lewd designs, did then and there willfully, unlawfully and
feloniously have carnal knowledge with one NAIRUBE J. RAMOS, an eight-year old girl,
against her will and by reason or on the same occasion and in order to hide the crime
he just committed, dump the victim in the grassy coconut plantation area, which resulted
in her death due to shock secondary to vulvar laceration committed on her by the herein
accused, to the damage and prejudice of the surviving heirs of the victim.

Upon arraignment, the accused with the assistance of counsel entered a plea of not
guilty. 3 Thereafter, trial ensued.

The prosecution presented the following witnesses in support of its charge against the
accused:

EDILBERTO CASTILLO, the medico-legal officer who examined the cadaver of Nairube
on September 19, 1997, testified that during the course of his examination of the
cadaver, he discovered an 8 cm. wound penetration in her vagina which was probably
caused by the insertion of a penis; that the cadaver was in an advanced state of
decomposition; that more or less, the approximate time of death of the victim was three
(3) days prior to his examination; and that the cause of death of the victim was
hypovolenic shock secondary to the laceration. 4cräläwvirtualibräry

RICARDO VIDA, the Task Force Chief of Cavinti, testified that on September 18, 1997,
at around 4:35 p.m., the accused pointed out where the body of the victim was; that the
accused pointed to a place inside Villa Anastacia which was two hundred (250) meters
from the road; that at the time the accused pointed to the place, he was handcuffed to
the accused; that the accused used his left hand in pointing towards the direction; and
that the father of the victim cried upon identifying the victim. 5cräläwvirtualibräry
VIOLETA CABUHAT testified that on September 15, 1997, at around 10:00 p.m., she
was weaving hats at her house. At that time, she was together with her three children,
Joey, Jessica and Jovelin and Loreto Veloria. The accused suddenly entered her house
and asked her if he could sleep there but she declined. After she declined, he suddenly
forced her to move to one side of the place where she was seated by forcing his body
against hers and held her chin. She noticed that he was drunk at that time because she
smelt liquor on his breath. After he held her chin, she went upstairs and slept. She
claims that the accused left her house at 10:20 p.m. since she looked at her watch
when she went upstairs. She does not remember what happened next. In court, she
identified that accused as the person who entered her house that
night. 6cräläwvirtualibräry

LORETO VELORIA testified that on September 15, 1997, at around 10:10 p.m., he was
at the house of Violeta Cabuhat. While he was there, the accused, whom he identified in
court, suddenly arrived. He noticed that the accused was wearing a pair of muddy
rubber slippers the bottom of which was color red while the top was color yellow. Since
the slippers of the accused were muddy, he asked him to remove them but the accused
did not comply with his request. Veloria also noticed that the accused was wearing a
black collared T-shirt. In court, he identified a pair of slippers (Exhibit D) as the one he
saw the accused wearing that night and on several other occasions. He also identified a
black collared T-shirt in court (Exhibit E) as the one he saw the accused wearing that
night and on two other occasions. Veloria stated that the accused sat beside Violeta
and tried to catch her chin; that he conversed with Violeta but did not hear the accuseds
request if he could stay overnight. After the accused left, he also left the house of
Violeta. 7cräläwvirtualibräry

PEDRO DELA TORRE testified that on September 15, 1997, at 10:30 p.m., the accused
arrived at his house and joined the drinking session of his son. He noticed that the
accused was wearing a black T-shirt and appeared to be drunk. Dela Torre claims that
the accused left at around 11:45 p.m. 8cräläwvirtualibräry

ROMUALDO RAMOS testified that at around 8:30 on the morning of September 16,
1997, he was driving his tricycle towards the poblacion of Cavinti. While driving towards
the poblacion, he noticed the accused coming out of the gate of Villa Anastacia. Upon
seeing the accused, he stopped his tricycle thinking that the accused would board the
same but the accused did not mind him. He noticed that the accused was wearing only
a pair of white short pants with a red waistline and was not wearing a T-shirt or any
slippers. The accused also appeared to be drunk. Thereafter, he proceeded to the
poblacion terminal where he discovered that Nairube was missing. He also learned that
the accused was the suspect behind her disappearance. Upon learning this, he told
Ricardo Vida, the Chief of the barangay tanod who was searching for the victim, to look
for her at Villa Anastacia because it was the place where he saw the accused come out
from. Ramos further testified that the house of the victim is about five hundred (500)
meters away from the place where he saw the accused but if one passes through the
coconut plantation, it is only two hundred (200) meters away. 9cräläwvirtualibräry
ALMA DIAZ testified that around 2:00 to 3:00 p.m. of September 16, 1997, she went
with the search party to look for Nairube. The search party was composed of around ten
(10) persons including Violeta and Helen Ramos, the mother of the victim. They first
searched the back portion of the victims house. During the course of their search, she
found a panty around three hundred (300) meters away from the house of the victim.
Helen identified the panty as belonging to her daughter and cried upon seeing the
same. The panty was laid behind a barb wire fence (the boundary of Villa Anastacia)
and had a spot of blood and some mud on it. In court, she identified Exhibit F as the
panty she saw but stated that it was already clean. Thereafter, they continued the
search and found a black collared T-shirt with buttons in front and piping at the end of
the sleeve hanging on a guava twig. The T-shirt appeared clean at the time. She picked
up the T-shirt and brought it along with her to the house of the victim. Upon reaching the
house, the T-shirt fell in mud and got dirty. Diaz further stated that the panty was found
less than a hundred (100) meters away while the black T-shirt was fifty (50) meters
away from the place where the body of the victim was found inside Villa Anastacia and
that the panty and T-shirt were around thirty (30) meters away from each other. Diaz
also claims that eight days after the death of the child, the mother of the accused, Irene
Lugod, came to her house to ask her for help in seeking an amicable settlement of the
case with the Ramos spouses. On cross-examination Diaz stated that she found the
panty closer than the black T-shirt to the body of the victim. 10cräläwvirtualibräry

HELEN RAMOS, the mother of the victim, testified that on September 15, 1997 at
around 7:00 p.m., she was asleep in her house together with her husband and children,
Nimrod, Neres and Nairube, the victim. Nairube slept close to her on the upper part of
her body. At around 12:30 a.m., her husband woke her up because he sensed someone
going down the stairs of their house. She noticed that Nairube was no longer in the
place where she was sleeping but she assumed that Nairube merely answered the call
of nature. After three minutes of waiting for Nariubes return, she stood up and began
calling out for Nairube but there was no answer. Thereafter, she went downstairs and
saw that the backdoor of their house was open. She went outside through the backdoor
to see if Nairube was there, but she was not. Helen also testified that Nairubes blanket
was also no longer at the place she slept but that her slippers were still there. She
further stated that she found a pair of rubber slippers on top of a wooden bench outside
of her backdoor. The sole of the slippers was red while the strap was a combination of
yellow and white. She assured the court that the slippers did not belong to any member
of her family. In court, she identified Exhibit D as the slippers she found that night.
Thereafter, she proceeded to the house of Alma Diaz to ask her for help. Then, in the
morning of September 16, 1997, she went to the police station to report the loss of her
child. She also reported the discovery of the pair of slippers. She then went home while
the police began their search for Nairube. At around 12:30 p.m., Alma Diaz requested
her to go with the searching team. During the search, Alma Diaz found a panty which
she recognized as that of her daughter. After seeing the panty, she cried. She was
thereafter ordered to go home while the others continued the search. On September 18,
1997, they found the dead body of her daughter in Villa Anastacia. Helen also testified
on the amounts she spent in connection with the funeral of her daughter and produced
a list which totaled P37,200.00. During cross-examination, Helen stated that the pair of
slippers she found on top of the bench was muddy. 11cräläwvirtualibräry

SPO2 QUIRINO GALLARDO testified that on September 16, 1997 at around 7:30 in the
a.m., Helen Ramos reported that her daughter, Nairube, was missing. He thereafter
proceeded to the house of the victim together with members of the Crime Investigation
Group, the PNP and some townspeople to conduct an ocular inspection. Helen Ramos
gave him a pair of slippers and pointed to him the location where she found the same.
Alma Diaz also gave him a black T-shirt which she found. Loreto Veloria informed him
that the two items were worn by the accused when he went to the house of Violeta
Cabuhat. At around 7:00 p.m., he apprehended the accused on the basis of the pair of
slippers and the black T-shirt. He then brought the accused to the police station where
he was temporarily incarcerated. At first, the accused denied that he did anything to
Nairube but after he told him what happened to the girl. Gallardo claims that the
accused told him that after the drinking spree on September 15, 1997, the accused
wanted to have sexual intercourse with a woman. So after the drinking spree, the
accused went to the house of Gemma Lingatong, the neighbor of Helen Ramos. Upon
his arrival at the house of Gemma, he bumped pots which awakened the occupants of
the house. Considering the commotion he caused, he left and went to the house of
Nairube Ramos. After removing his slippers, he entered the house of Nairube and
slowly went upstairs. He saw that Helen Ramos was sleeping beside her husband so he
took Nairube instead. In court, Gallardo demonstrated how the accused claimed to have
lifted the child by raising two of his hands as if he was lifting something off the ground.
After taking Nairube, he brought her to the farm where according to the accused; he
raped her three times. After successfully raping Nairube, the accused slept. When he
woke up, he saw the lifeless body of Nairube which he wrapped in a blanket and hid in a
grassy place. Then, he took a bath in the river. He then returned to Villa Anastacia and
went out through its gate. Although he admitted to having raped and killed Nairube, the
accused refused to make a statement regarding the same. After having been informed
that the body of Nairube was in the grassy area, Gallardo together with other members
of the PNP, the Crime Watch and the townspeople continued the search but they were
still not able to find the body of Nairube. It was only when they brought the accused to
Villa Anastacia to point out the location of the cadaver that they found the body of
Nairube. Gallardo stated that the accused pointed to the location by using his
lips. 12cräläwvirtualibräry

PO2 ANTONIO DECENAs testimony corroborates the testimony of Ricardo Vida

although he claims that the accused pointed to the location of the body of the victim by
using his lips. 13cräläwvirtualibräry

DANILO RAMOS, the father of Nairube, testified that on September 15, 1997 at around
7:00 in the evening, he was asleep in his house together with his wife, Helen and five
children, Nimrod, Neres, Nairube, Nixon and Nerdami. At around 12:30 a.m., he felt
someone going down the stairs of their house. He woke his wife up and checked if his
children were all there. He noticed that Nairube was not there so his wife went
downstairs and checked if she was downstairs. After three minutes, his wife returned
and told him that Nairube was not downstairs. So, he went down to double check. Upon
his return, his wife gave him a pair of red rubber slippers. He described the slipper as
having a red sole but that he did not notice the color of the strap since the light was dim.
In court, he identified Exhibit D as the pair of slippers he saw that night. In the early
morning of September 16, 1997, they continued searching for Nairube. On September
18, 1997, a member of the bantay bayan went to their house informing them that the
accused would be pointing out where the body of Nairube was. At around 4:00 p.m., the
accused pointed out the location of the body of Nairube inside Villa Anastacia by using
his lips. 14cräläwvirtualibräry

FLORO ESGUERRA, the Vice-Mayor of Cavinti, testified that on September 19, 1997 at
around 3:30 p.m., he attended the funeral of Nairube. After the funeral, he visited the
accused in his cell. In the course of his conversation with the accused, the accused
confessed to the commission of the offense. 15cräläwvirtualibräry

On October 8, 1998 the RTC rendered a decision finding the accused guilty beyond
reasonable doubt of the crime of rape with homicide, the dispositive portion of the
decision reads:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, this

Court finds the accused CLEMENTE JOHN LUGOD GUILTY BEYOND REASONABLE
DOUBT of the special complex crime of RAPE WITH HOMICIDE under Section 11 of
Republic Act No. 7659, otherwise known as the Death Penalty Law, amending Article
335 of the Revised Penal Code and hereby sentences him to suffer the SUPREME
PENALTY OF DEATH. Accused is also ordered to indemnify the heirs of the victim,
NAIRUBE RAMOS the sum of P50,000.00 as civil indemnity for her death and
P37,200.00 as actual damages.

The accused is further ordered to pay the cost of the instant suit.

SO ORDERED.16cräläwvirtualibräry

In view of the imposition of the death penalty, the case is now before this Court on
automatic review.

In his brief, the accused-appellant assigns the following errors committed by the RTC:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT ON THE

BASIS OF CIRCUMSTANTIAL EVIDENCE WHICH DID NOT PROVE WITH MORAL
CERTAINTY THAT HE WAS THE PERPETRATOR OF THE CRIME CHARGED.

THE COURT ERRED IN HOLDING THAT APPELLANT CONFESSED HIS GUILT

BEFORE THE VICE-MAYOR, WHICH CONFESSION IS ADMISSIBLE AS IT WAS
NOT MADE IN RESPONSE TO ANY INTERROGATION. 17cräläwvirtualibräry
In support of his appeal, accused-appellant submits that the evidence presented by the
prosecution fails to establish that he raped and killed Nairube Ramos beyond
reasonable doubt. The prosecution did not present any direct evidence to inculpate him
in the commission of the crime. Neither did the prosecution present circumstantial
evidence sufficient to establish his guilt beyond reasonable doubt. Moreover, accused-
appellant claims that the alleged confession he made to the vice-mayor was not a
confession. He prays that the judgment of conviction of the RTC be reversed and that
he be acquitted of the crime charged.

After a careful review of the case, we agree with the submission of accused-appellant
and find that the prosecution failed to prove his guilt beyond reasonable doubt.

In rendering its decision, the trial court disregarded accused-appellants defense of

denial and alibi and relied on the following pieces of circumstantial evidence culled from
the testimonies of the prosecution witnesses to justify its judgment of conviction:

(1) In the evening of September 15, 1997, Accused CLEMENTE JOHN LUGOD wearing
a pair of slippers and black T-shirt, had a drinking spree with the son of Pedro dela
Torre outside their house at Udia, Cavinti, Laguna;

(2) On the same evening, accused wearing the same pair of slippers and black T-shirt
and under the influence of liquor, entered the house of VIOLETA CABUHAT without her
consent;

(3) On the same evening, LORETO VELORIA saw accused wearing the same pair of
slippers and black T-shirt;

(4) At about 12:30 in the early morning of September 16, 1997, father of the victim
noticed somebody going downstairs of their house;

(5) The pair of slippers were found near the door of the victims house;

(6) The panty of the victim was found inside the premises of VILLA ANASTACIA at
Cavinti, Laguna;

(7) In the early morning of September 16, 1997, Romualdo Ramos saw accused coming
out of from VILLA ANASTACIA barefoot and half-naked;

(8) Accused pointed to RICARDO VIDA and SPO2 ANTONIO DECENA the place
where the cadaver of the victim could be found;

(9) Accused confessed to the Mayor and the Vice-Mayor of Cavinti, Laguna, that he
committed the offense imputed against him; and

(10) Almost all eyewitnesses for the Prosecution positively identified the accused in
open court as CLEMENTE JOHN LUGOD.18cräläwvirtualibräry
There is no question that at the time of his apprehension, accused-appellant was
already placed under arrest and was suspected of having something to do with the
disappearance of Nairube. In fact, the lower court declared that accused-appellants
warrantless arrest was valid based on Section 5 (b) of Rule 113 of the Rules of
Court. 19 However, at the time of his arrest, the apprehending officers did not inform the
accused-appellant and in fact acted in a blatant and wanton disregard of his
constitutional rights specified in Section 12, Article III of the Constitution, which
provides:

(1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices, and
their families.

Records reveal that accused-appellant was not informed of his right to remain silent and
to counsel, and that if he cannot afford to have counsel of his choice, he would be
provided with one. Moreover, there is no evidence to indicate that he intended to waive
these rights. Besides, even if he did waive these rights, in order to be valid, the waiver
must be made in writing and with the assistance of counsel. Consequently, the
accused-appellants act of confessing to SPO2 Gallardo that he raped and killed Nairube
without the assistance of counsel cannot be used against him for having transgressed
accused-appellants rights under the Bill of Rights. 20 This is a basic tenet of our
Constitution which cannot be disregarded or ignored no matter how brutal the crime
committed may be. In the same vein, the accused-appellants act in pointing out the
location of the body of Nairube was also elicited in violation of the accused-appellants
right to remain silent. The same was an integral part of the uncounselled confession and
is considered a fruit of the poisonous tree. Thus, in People vs. De La Cruz, 21 we ruled
that:

Equally inadmissible, for being integral parts of the uncouselled admission or fruits of
the poisonous tree are the photographs of subsequent acts which the accused was
made to do in order to obtain proof to support such admission or confession, such as (a)
his digging in the place where Virginia Trangia was allegedly buried, (b) his retrieving of
the bones discovered therein (c) his posing before a photographer while executing such
acts.22cräläwvirtualibräry

Even if we were to assume that accused-appellant was not yet under interrogation and
thus not entitled to his constitutional rights at the time he was brought to the police
station, the acts of accused-appellant subsequent to his apprehension cannot be
characterized as having been voluntarily made considering the peculiar circumstances
surrounding his detention. His confession was elicited by SPO2 Gallardo who promised
him that he would help him if he told the truth. Furthermore, when accused-appellant
allegedly pointed out the body of the victim, SPO2 Gallardo, the whole police force as
well as nearly one hundred (100) of the townspeople of Cavinti escorted him there.
Ricardo Vida stated that the townspeople were antagonistic towards accused-appellant
and wanted to hurt him. 23 The atmosphere from the time accused-appellant was
apprehended and taken to the police station up until the time he was alleged to have
pointed out the location of the body of the victim was highly intimidating and was not
conducive to a spontaneous response. Amidst such a highly coercive atmosphere,
accused-appellants claim that he was beaten up and maltreated by the police officers
raises a very serious doubt as to the voluntariness of his alleged confession. The Vice-
Mayor, who testified that when he visited accused-appellant in the jail cell, he noticed
that the accused-appellant had bruises on his face, corroborated accused-appellants
assertion that he was maltreated. 24cräläwvirtualibräry

In addition, the records do not support the confession allegedly made by the accused-
appellant to the Mayor and Vice-Mayor of Cavinti. Records show that the Mayor of
Cavinti did not testify in the criminal trial. Moreover, the testimony of the Vice-Mayor
with respect to the alleged confession made by the accused-appellant is not conclusive.
The Vice-Mayors testimony reads as follows:

TRIAL PROSECUTOR;

Q: More or less what time did you visit Clemente John Lugod in his cell?

A: Between 3:30 and 4:00 oclock in the afternoon, sir.

Q: Do you have any companion at the time you visited Clemente John Lugod?

A: Nobody, sir.

Q: Tell us how you were able to visit him in the said cell?

A: My first intention in visiting him was just to know him, sir.

Q: Did anybody introduce to you Clemente John Lugod?

A: A police officer called Clemente John Lugod, who was then lying inside the cell, sir.
Q: What did the police officer say to Clemente John Lugod?

A: The police officer said: Lugod, the vice mayor wants to talk to you.

TRIAL PROSECUTOR:

Q: What did Lugod do if any when he was called by the police officer?

A: He arose and he greeted me good afternoon, sir.

Q: What happened after he greeted you good afternoon?

A: I pitied him during that time, I asked him why he did that thing.

COURT:

Q: Did you specify to him what you mean by why he did such a thing?

A: No, Your Honor, I merely asked him why was he able to do that.

Q: Do you know if Lugod understood what you mean?

A: I think he understood my question then, Your Honor.

TRIAL PROSECUTOR:

Q: What was the response of Clemente John Lugod when you asked him that question?

A: He told me he was so drunk, he did not know what happened next. Hindi niya
namalayan na ganoon ang nangyari.

Q: Did you ask him what he has done?

WITNESS:

A: I asked him why he went to that place, sir.

TRIAL PROSECUTOR:

Q: What place are you referring to?

A: That house. I did not ask the specific place, what I was referring then was that house.

Q: What was the response of Clemente John Lugod?

A: He answered he thought of his two children, sir.

Q: What about if he thought of his two children?

A: According to him he planned to go back to Brgy. Layog where he left his children.

Q: Did you ask him what he do (sic) in that place?

A: I did not ask, sir.

Q: What else did he tell you?

A: I asked another question, sir.

Q: What is that other question?

A: I asked him if it was the mother whom he liked then, sir.

Q: What was the answer?

A: Allegedly not the mother, sir.

TRIAL PROSECUTOR:

Q: Did you ask him what did he do (sic) in that place?

A: No more, sir.

Q: What else did he tell you aside from what you have testified?

A: No more, sir, I bid him goodbye.

Q: Is Clemente John Lugod present in court?

A: Yes, sir.

Q Please point at him.

A: (Witness going down of the witness stand and pointed to a person who when asked
of his name answered Clemente John Lugod, the accused in this case).

TRIAL PROSECUTOR: That will be all, Your Honor.

COURT: Cross

ATTY. DE RAMOS: With the permission of the Honorable Court?

COURT: Proceed.
ATTY. DERAMOS:

Q: Vice mayor, when you visited John Lugod on September 19, 1997 at around 3:30 to
4:00 oclock in the afternoon, you stated that he was lying in his cell, is that correct?

A: Yes, sir.

ATTY. DE RAMOS:

Q: And the reason why the police officer called John Lugod is because you approached
that police, is that correct?

A: Yes, sir.

Q: And you asked him where is John Lugod?

A: Yes, sir.

Q: Because you do not know John Lugod personally?

A: Yes, sir.

Q: When you were about to talk to John Lugod, was he still inside the cell or outside the
cell?

A: He was still inside the cell, sir.

Q: So you are outside the cell?

A: Yes, sir.

Q: How about the police officer who called John Lugod?

A: He was outside the cell, sir.

Q: So the police officer who called John Lugod was present while you were conversing
with John Lugod?

A: No, sir, he was no longer present because after calling John Lugod he left.

Q: What was John Lugod wearing at that time?

WITNESS:

A: I cannot remember anymore, sir.

ATTY. DE RAMOS:

Q: But you can still remember his physical appearance at that time?

A: Yes, sir.

Q: What was the physical appearance of Clemente John Lugod at that time?

A: As far as I can recall it seemed that he had some bruises on his face (witness
pointing to his lower jaw)

COURT

Q: Did you not ask him what happened to his face?

A: No, sir.

Q: Did it not occur to you to think in that appearance that there was something that
happened?

A: No, Your Honor, because my first intention was just to know him.

Q: Did not the accused Clemente John Lugod inform you of any maltreatment done to
him by the police officers?

A: He did not say anything about that, Your Honor.

Q: Did you not ask John Lugod whether somebody laid force on him?

WITNESS:

A: I was not able to ask that, Your Honor.

ATTY. DE RAMOS:

Q: Aside from bruises on his face did you notice any other bruises or wound on other
parts of his body?

A: No more, sir.

Q: You stated earlier that you asked John Lugod why did you do that, tell the Court what
was his response to your question?

A: He said he was so drunk then, sir.

Q: He did not tell you that he raped the victim and killed her?
A: He did not say that, sir.

Q: He did not directly answer your question because your question did not ask direct to
something?

A: Yes, sir.25cräläwvirtualibräry

As can be seen from the testimony of the Vice-Mayor, accused-appellant merely

responded to the ambiguous questions that the Vice-Mayor propounded to him. He did
not state in certain and categorical terms that he raped and killed Nairube. In fact, the
Vice-Mayor admitted that the accused-appellant did not tell him that he raped and killed
Nairube. In addition, we note the contradiction between the testimony of the Vice-Mayor
who stated that he was alone when he spoke to the accused-appellant and that of
SPO2 Gallardo who claimed that he was present when accused-appellant confessed to
the Mayor and Vice-Mayor.

Considering that the confession of accused-appellant cannot be used against him, the
only remaining evidence which was established by the prosecution is the fact that
several persons testified having seen accused-appellant the night before the murder of
Nairube and on several other occasions wearing the rubber slippers and black T-shirt
found at the house of the victim and Villa Anastacia respectively as well as the
testimony of Romualdo Ramos, the tricycle driver who stated that he saw accused-
appellant in the early morning of September 16, 1997 leaving Villa Anastacia without a
T-shirt and without slippers. These pieces of evidence are circumstantial in nature.
Circumstantial evidence is that evidence which proves a fact or series of facts from
which the facts in issue may be established by inference. 26 Under Section 4 of Rule 133
of the Rules on Evidence, circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Circumstantial evidence is sufficient to convict if the circumstances proven constitute an

unbroken chain which lead to one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty person. 27cräläwvirtualibräry

In the present case, much emphasis was placed by the trial court on the discovery of
the pair of rubber slippers at the victims house and the black T-shirt hanging on a guava
twig near the cadaver of Nairube which were allegedly worn by accused-appellant the
day before Nariubes disappearance. The trial court also relied on the fact that there was
an eyewitness who saw accused-appellant leaving Villa Anastacia, the place where the
body of the victim was found, in the morning after the disappearance of the victim.
However, the combination of the above-mentioned circumstances does not lead to the
irrefutably logical conclusion that accused-appellant raped and murdered Nairube. At
most, these circumstances, taken with the testimonies of the other prosecution
witnesses, merely establish the accused-appellants whereabouts on that fateful evening
and places accused-appellant at the scene of the crime and nothing more. The
evidence of the prosecution does not provide a link which would enable this Court to
conclude that he in fact killed and raped Nairube. It must be stressed that although not
decisive for the determination of the guilt of the accused-appellant, the prosecution did
not present any evidence to establish that he was at any time seen with the victim at or
about the time of the incident. Neither was there any other evidence which could single
him out to the exclusion of any other as being responsible for the crime.

It may be argued that his presence at the scene of the crime was unexplained and gives
rise to the suspicion that the accused-appellant was the author thereof but this
circumstance alone is insufficient to establish his guilt. It is well settled that mere
suspicions and speculations can never be the bases of conviction in a criminal
case. 28cräläwvirtualibräry

More important, it appears that the rubber slippers, which were found at the house of
the victim on the night Nairube disappeared, are an ordinary pair of rubber slippers
without any distinguishing marks to differentiate the same from any other. In People vs.
De Joya, 29 this Court ruled that:

Rubber or beach walk slippers are made in such quantities by multiple manufacturers
that there must have been dozens if not hundreds of slippers of the same color, shape
and size as the pair that Herminia gave to appellants wife. And even if conclusive
identification of the slippers had been offered, and it is assumed that appellant (rather
than his wife) had worn those slippers on that fatal afternoon, still the presence of that
singular slipper did not clearly and directly connect the appellant to the robbery or the
slaying. At most, under that assumption, the presence of that slipper in the house of the
Valencias showed that the accused had gone to the house of the Valencias and there
mislaid the slipper. We note in this connection, that appellant himself had testified that
he did enter the house of the Valencias that afternoon, but after the killing of Eulalia
Diamse had been perpetrated, and there found many persons in the house viewing the
body.30cräläwvirtualibräry

Likewise, in People vs. Mijares, 31 this Court ruled that the fact that the accused was the
last person seen with the victim and that his slippers were found at the crime scene do
not necessarily prove that he killed the victim. This Court stated that:

That the appellant was the last person seen with the victim on the night she
disappeared does not necessarily prove that he killed her. It was not established that
appellant and the victim were together until the crime was committed. It was not even
shown that the appellant proceeded to the crime scene, either by himself or together
with the victim.
Likewise, the fact that the slippers which appellant borrowed from Elizabeth Oglos were
found near the victims dead body does not necessarily prove that he was the
perpetrator of the crime. Even if we were to conjecture that appellant went to the locus
criminis and inadvertently left them there, such supposition does not necessarily imply
that he had committed the crime. Indeed, it was not established whether appellant went
to the place before, during or after the commission of the crime, if at all. Moreover, the
prosecution has not ruled out the possibility that the slippers may have been brought by
another person to the crime scene, precisely to implicate him and thus exonerate the
real culprit. Clearly, several antithetical propositions may be inferred from the presence
of the slippers at the crime scene, and appellants guilt is only one of
them.32cräläwvirtualibräry

WHEREFORE , in view of the foregoing, the appealed Judgment dated October 8, 1998
of the Regional Trial Court of Santa Cruz, Laguna, Branch 28 in Criminal Case No. SC-
6670 finding the accused, Clemente John Lugod alias HONASAN, guilty of the crime of
rape with homicide is hereby REVERSED and SET ASIDE and accused-appellant is
ACQUITTED of the crime charged on the ground of reasonable doubt. He is ordered
immediately RELEASED from confinement unless held for some other legal cause.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.

G.R. Nos. 144086-87 : February 6, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDRALIN TABOGA, Accused-

Appellant.

DECISION

YNARES-SANTIAGO, J.:

Francisca Tubon, a widowed septuagenarian, was robbed, stabbed and burned beyond
recognition when her house built of strong materials was set on fire.

For the commission of the above felonies, Edralin Taboga was charged in Criminal
Case No. 1818-K with Robbery with Homicide in an Information 1 which reads as follows:

That on or about the 1st day of April 1998, in the municipality of Magsingal, province of
Ilocos Sur, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to gain, and with violence against person[s], did then and
there wilfully, unlawfully and feloniously enter the house of one FRANCISCA TUBON,
and once inside, did then and there, with treachery and abuse of superior strength,
assault, attack and stab FRANCISCA TUBON, thereby inflicting upon her mortal
wounds which necessarily caused the death of said FRANCISCA TUBON, and then, did
then and there wilfully, unlawfully and feloniously take, steal and carry away three (3)
finger rings, one (1) necklace with pendant, and one (1) vial of perfume, and four (4)
gantas of rice belonging to FRANCISCA TUBON.

Contrary to law and aggravated by the circumstances that the crime was committed in
disregard of the respect due the offended party on account of her age and sex, that the
crime was committed in the dwelling of the offended party and that the crime was
committed after an unlawful entry.

Accused-appellant Taboga was likewise indicted for Arson in Criminal Case No. 1819-K
in an Information2 which avers:

That on or about the 1st day of April 1999, in the municipality of Magsingal, province of
Ilocos Sur, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused did then and there wilfully, unlawfully and feloniously set fire to the
house of FRANCISCA TUBON after having robbed and stabbed her inside the said
house and by reason or on occasion of the arson the death of FRANCISCA
TUBON resulted.

Contrary to law and aggravated by the circumstance that the crime was committed in
the dwelling of the offended party and that the crime was committed after an unlawful
entry.

Upon arraignment, accused-appellant entered separate pleas of Not Guilty to the crimes
charged.3 The cases were thereafter tried jointly.

It appears that at 2:00 in the early morning of April 1, 1998, at Magsingal, Ilocos Sur,
Barangay Councilman Cirilo Urayani woke up to the sound of loud explosions. He
thought people were lighting firecrackers in the neighboring barangay to celebrate their
fiesta. He went out of the house to fetch water, and he saw the house of Francisca
Tubon on fire.

Marites Ceria, a niece of Francisca Tubon, was also awakened by the explosions. She
rushed to her aunts house and, seeing it on fire, shouted for help. She called out the
name of her aunt but there was no response.

Barangay Captain William Pagao heard Marites shouts for help. He and other barangay
officials and residents helped in dousing out the fire using a water pump. When they
entered the burned house, they discovered the charred remains of Francisca Tubon.
They examined the body and found stab wounds on the chest of the deceased.

Later that morning, Pagao reported the incident to the police authorities of Magsingal,
Ilocos Sur. SPO1 Tiburcio Panod went to the scene of the crime to investigate and
gather physical evidence. He saw the charred remains of Francisca Tubon inside what
used to be her bedroom. He also found stab wounds on her chest. Meanwhile, Hilaria
Migo, a niece of the deceased, took pictures of the charred remains.

A sack of about four (4) gantas of rice was found some thirty to forty meters away from
the burned house. Also found were two crumpled five peso bills, twenty peso and fifty
peso bills, and a five dollar bill underneath a big stone along the barangay road. The
investigators likewise found a necklace with pendant, three rings, a certificate of
ownership of large cattle and a vial of perfume near the scene.

The deceaseds former farm workers were rounded up, namely, Mario Ceria, Edwin
Ceria, Tante Dumadag and Edralin Taboga. Brgy. Capt. Pagao noticed fresh blood
stains on the short pants of Taboga. He confronted Taboga, and the latter readily
admitted that he killed Francisca Tubon and set the flue-cured tobacco stored inside her
house on fire, causing the whole house, including the dead body of the old woman, to
be burned.

Taboga was brought to the police station for further investigation. During the
investigation, SPO1 Panod asked Taboga, Apay, sica ti akinaramid wenno saan? (Why,
were you the one who did it or not?) Taboga answered, Wen, Sir, ngem tulungannac
cadi. (Yes, sir, but please help me.) SPO1 Panod prepared a written extra-judicial
confession for Taboga. During the inquest, however, Taboga refused to sign the
confession upon the advice of his lawyer.

The following day, April 2, 1998, Mr. Mario Contaoi, a radio announcer of DZNS, went to
the Magsingal Municipal Police Station to interview the suspect, Edralin Taboga. Again,
Taboga admitted killing the deceased and setting her and her house on fire.

In the meantime, the Forensic Biologist of the National Bureau of Investigation (NBI),
who examined the bloodstains on Tabogas shorts and on the kitchen knife, found that
the said specimens contained human blood Type O, 4 the blood type of the deceased.

On the other hand, the Municipal Health Officer of Magsingal, Ilocos Sur who performed
an autopsy on the victims charred remains, found several stab wounds on the
chest.5 According to him, the victim may have been stabbed to death before she and
her house were burned.

The daughter of the deceased, Dr. Marcelina T. Salvador, testified that the family spent
the total amount of P115,960.00 for the wake and interment of her mother, and that the
house, including the pieces of furniture, fixtures and valuables therein, was easily worth
P1,000,000.00.

Accused-appellant Edralin Taboga raised the defense of denial and alibi. He alleged
that he was in the house of the parents of his live-in partner, Liza Almazan, at Brgy.
Maratudo, Magsingal, Ilocos Sur, seventy meters away from the house of the deceased.
He knew the deceased as he used to gather tobacco leaves for her. On the night prior
to the commission of the crimes, he had supper at home at 7:00, after which he washed
the dishes and went to sleep at 8:00. At around 1:00 to 2:00 the next morning, he was
awakened by shouts for help. He got out and helped put out the fire at the house of the
deceased. At 3:00 a.m., he returned home and went back to sleep. At 6:00 a.m., he was
fetched from the house and brought to the scene of the fire. The police asked him about
the blood stains on his short pants, but he did not know anything about it.

Accused-appellant further claimed that he was maltreated by the policemen and forced
to admit the crime. Regarding his admission to radio announcer Mario Contaoi, he
narrated that the interview was held inside the investigation room of the police station
where policemen were present. Thus, he had to admit the crimes because he was
afraid of the policemen. Moreover, relatives of the deceased beat him up by kicking him,
hitting him with a chair, slapping him and punching him on the head and face.

Accused-appellants live-in partner corroborated his testimony. She stated that she got
up to relieve herself at about 1:00 at dawn of April 1, 1998 when she heard shouts of a
fire. She woke up accused-appellant and, together, they went to help put out the fire.
After an hour, they returned home and went back to sleep.

After trial, the Regional Trial Court of Cabugao, Ilocos Sur, Branch 24, rendered
judgment finding him guilty beyond reasonable doubt of both crimes and accordingly
sentencing him as follows:

WHEREFORE, judgment is hereby rendered, as follows:

(1) In Criminal Case No. 1818-K, the Court finds the accused Edralin Taboga GUILTY
beyond reasonable doubt of the special complex crime of Robbery with Homicide with
all the aggravating circumstances alleged in the information, and hereby sentences him
to suffer the supreme penalty of DEATH by lethal injection, to indemnify the heirs of
Francisca Tubon in the following amounts:

(a) P50,000.00 as death indemnity;

(b) P115,960.00 as reimbursement for actual expenses; and

(c) P50,000.00 as moral damages

and to pay the costs

(2) In Criminal Case No. 1819-K, the Court finds the accused, Edralin Taboga, GUILTY
beyond reasonable doubt of Destructive Arson and hereby sentences him to
suffer reclusion perpetua, with all the accessory penalties provided for by law, to
indemnify the heirs of Francisca Tubon in the amount of P1,000,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs.

He shall be credited in full with the period of his preventive imprisonment.

SO ORDERED.6cräläwvirtualibräry

The case is now before us on automatic review pursuant to Section 22 of Republic Act
No. 7659, amending Article 47 of the Revised Penal Code. In his brief, accused-
appellant alleges that:

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL

CONFESSION MADE BY THE ACCUSED TO A RADIO REPORTER FOR THE
LATTER WAS ACTING AS AN AGENT FOR THE PROSECUTION AND HENCE THE
PROCEDURAL SAFEGUARDS ENSHRINED IN THE CONSTITUTION SHOULD
HAVE BEEN OBSERVED.

II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE FOR THE
ROBBERY OR THEFT WAS NOT PROVEN WITHOUT THE SAID EXTRAJUDICIAL
CONFESSION AND HENCE ONLY THE CRIME OF HOMICIDE EXISTS.

The first assigned error is untenable.

There is nothing in the record to show that the radio announcer colluded with the police
authorities to elicit inculpatory evidence against accused-appellant. Neither is there
anything on record which even remotely suggests that the radio announcer was
instructed by the police to extract information from him on the details of the crimes.
Indeed, the reporter even asked permission from the officer-in-charge to interview
accused-appellant. Nor was the information obtained under duress. In fact, accused-
appellant was very much aware of what was going on. He was informed at the outset by
the radio announcer that he was a reporter who will be interviewing him to get his side
of the incident:

Q Will you please tell the court what [did] you tell the accused before you conducted the
interview if any?

A It is inside the tape of our conversation, sir.

Q We see a small tape recorder in your possession Mr. Witness, where was that
place[d]?

A In front of the suspect, sir.

Court

Q And he was aware of that?

A Of course, Your Honor.

xxx

Q Was he aware he was being interviewed?

A Yes, sir, I introduced myself as a reporter from the DZNS, sir.

Q What else did you ask after asking his name and personal circumstances?

A Regarding the crime which was allegedly committed, sir.

Q Did he answer your question?

A Yes, sir.

Q In your observation, Mr. Witness, as a radio reporter were the answers given to your
questions voluntary?

A Voluntary, sir.[7cräläwvirtualibräry

During cross-examination, defense counsel failed to extract an admission from the

reporter that accused-appellant was under compulsion from the police to face him:

Q Before you conducted the interview, you do know what transpired between the
suspect and the policeman?

A I do not know, sir.

Q You did not observe Mr. Witness whether the suspect during your interview was
under pressure or intimidated?

A When I went there I saw the suspect watching the TV together with the policeman, sir.

Q You did not see relatives of the victim?

A I dont recognize [them], sir.

Q How about [the] barangay officials of Barangay Maratudo?

A I only see (sic) the barangay captain of Maratudo at the house of the victim, sir.

Q When you interviewed the suspect, he do (sic) not know that the interview will be
aired?

A I told him I am a reporter, sir.

Q But you did not tell him that the interview will be aired?

A I tell (sic) him that the interview will be aired, sir. 8cräläwvirtualibräry

The records also show that accused-appellant not only confessed to the radio reporter
but to several others, among them his live-in partner, 9 Barangay Captain William
Pagao, 10 and SPO1 Tiburcio Panod.11cräläwvirtualibräry

The defense maintained that the confessions were obtained through compulsion.
Accused-appellant claimed that the policemen maltreated him by hitting him four (4)
times on the head with a chair and forced him to admit the crimes. 12 However, accused-
appellant failed to present convincing evidence to substantiate his claim, other than his
bare self-serving assertion. Apropos is our ruling in People v. Pia,13 where we said that:
where the defendants did not present evidence of compulsion or duress or violence on
their persons; where they failed to complain to the officers who administered the oaths;
where they did not institute any criminal or administrative action against their alleged
intimidators for maltreatment; where there appeared to be no marks of violence on their
bodies and where they did not have themselves examined by a reputable physician to
buttress their claim, all these should be considered as factors indicating the
voluntariness of the confession.14cräläwvirtualibräry

Furthermore, accused-appellants confession is replete with details on the manner in

which the crimes were committed, thereby ruling out the probability that it was
involuntarily made. The voluntariness of a confession may be inferred from its language
such that if, upon its face the confession exhibits no sign of suspicious circumstances
tending to cast doubt upon its integrity, it being replete with details which could be
supplied only by the accused reflecting spontaneity and coherence which,
psychologically, cannot be associated with a mind to which violence and torture have
been applied, it may be considered voluntary.15 In the early case of U.S. v. De
los Santos,16 we stated:

If a confession be free and voluntary the deliberate act of the accused with a full
comprehension of its significance, there is no impediment to its admission as evidence,
and it becomes evidence of a high order; since it is supported by the presumption a very
strong presumption that no person of normal mind will deliberately and knowingly
confess himself to be a perpetrator of a crime, especially if it be a serious crime, unless
prompted by truth and conscience.

Under Rule 133, Section 3 of the Rules of Court, an extrajudicial confession made by an
accused shall not be a sufficient ground for conviction, unless corroborated by evidence
of corpus delicti. As defined, it means the body of the crime and, in its primary sense,
means a crime has actually been committed.17 Applied to a particular offense, it is the
actual commission by someone of the particular crime charged. 18 In the case at bar, the
confession made by accused-appellant was corroborated by several items found by the
authorities, to wit: the knife which was used to kill the victim and the charred body of the
victim.
The court a quo did not err in admitting in evidence accused-appellants taped
confession. Such confession did not form part of custodial investigation. It was not given
to police officers but to a media man in an apparent attempt to elicit sympathy. The
record even discloses that accused-appellant admitted to the Barangay Captain that he
clubbed and stabbed the victim even before the police started investigating him at the
police station.19 Besides, if he had indeed been forced into confessing, he could have
easily asked help from the newsman. In People v. Endino, et al.,20 we held:

We do not suggest that videotaped confessions given before media men by an accused
with the knowledge of and in the presence of police officers are impermissible. Indeed,
the line between proper and invalid police techniques and conduct is a difficult one to
draw, particularly in cases such as this where it is essential to make sharp judgments in
determining whether a confession was given under coercive physical or psychological
atmosphere.

Even assuming for the nonce that the extra-judicial confession was indeed inadmissible,
this will not absolve accused-appellant from criminal liability because there exists
independent evidence to establish his authorship of the victims death. While there was
no prosecution witness who positively identified accused-appellant as the assailant of
the victim, his culpability was nonetheless proven through circumstantial evidence.

Hence, accused-appellants second assigned error that his guilt was not proven beyond
reasonable doubt must likewise fall.

Direct evidence of the commission of the crime is not the only matrix wherefrom a court
may draw its conclusions and findings of guilt. 21 The rules on evidence22 and case law
sustain the conviction of the accused through circumstantial evidence when the
following requisites concur: (1) there must be more than one circumstance; (2) the facts
from which the inferences are derived are proven; and (3) the combination of all
circumstances is such as to produce a conviction beyond reasonable doubt of the guilt
of the accused.23cräläwvirtualibräry

With regard to the yardsticks to be used in assaying the probative value thereof

Wharton suggests four basic guidelines in the appreciation of circumstantial evidence,

(1) it should be acted upon with caution; (2) all the essential facts must be consistent
with the hypothesis of guilt; (3) the facts must exclude every other theory but that of
guilt; and (4) the facts must establish such a certainty of guilt of the accused as to
convince the judgment beyond reasonable doubt that the accused is the one who
committed the offense. The peculiarity of circumstantial evidence is that the guilt of the
accused cannot be deduced from scrutinizing just one particular piece of evidence. It is
far more like puzzle which when put together reveals a convincing picture pointing
towards the conclusion the accused is the author of the crime. 24cräläwvirtualibräry

In the case at bar, the following circumstances cited by the trial court lead to the
inevitable conclusion that accused-appellant perpetrated the crimes, to wit:
1. As the victims farm worker, the accused must have acquired knowledge of the set-up
of the victims house, including its openings, as well as the places where the victim used
to keep her valuables;

2. When confronted by Brgy. Captain William Pagao with respect to the fresh blood
stains on his short pants, the accused immediately became restless and his face turned
pale;

3. Upon scientific examination of the blood stains found on the knife and short pants of
the accused, it was found that the same consisted of human blood belonging to Type O
which was the blood type of the deceased Francisca Tubon;

4. When the Barangay Captain asked him if he had something to do with the killing of
the victim and the burning of the house, the accused broke down and admitted his guilt;

5. When he was interviewed by the radio announcer, Dr. Mario Contaoi, the accused
reiterated his earlier confession given to Brgy. Captain William Pagao and SPO1
Tiburcio Panod; and

6. He could only present his live-in partner, Liza Almazan, and no other, to corroborate
his denial and alibi.25cräläwvirtualibräry

Moreover, it appears that accused-appellant had a criminal record for theft. 26 The
foregoing circumstances when viewed in their entirety are as convincing as direct
evidence and, as such, negate the innocence of the accused-
appellant.27cräläwvirtualibräry

In stark contrast to the foregoing factual and evidentiary circumstances arrayed against
him, all accused-appellant could muster in his defense of alibi. For the defense of alibi
to prosper, the accused must prove not only that he was at some other place at the time
the crime was committed but that it was likewise impossible for him to be at the locus
criminis at the time of the alleged crime.28 In the instant case, accused-appellant failed
to prove and demonstrate the physical impossibility of his being at the scene of the
crime at the approximate time of its commission. No less than accused-appellant
himself admitted that the house where he was staying was only seventy meters away
from the house of the victim.29 As an element of a credible alibi, physical impossibility
refers to the distance between the place where the accused was when the crime
transpired and the place it was committed, as well as the facility of access between the
two places.30cräläwvirtualibräry

Basic is the rule that alibi is easy to concoct, and accused-appellant failed to prove that
it was physically impossible for him to be at the scene of the crime at the approximate
time of its commission. While, indeed, accused-appellants common-law wife Liza
Almazan corroborated his alibi, the trial court aptly pointed out that witnesses who are
either wives or mothers of the accused, in almost all instances, would freely perjure
themselves for the sake of their loved ones.31 Consequently, accused-appellants
defense of alibi can not prosper.32cräläwvirtualibräry

The doctrinal rule is that findings of fact made by the trial court, which had the
opportunity to directly observe the witnesses and to determine the probative value of the
other testimonies are entitled to great weight and respect because the trial court is in a
better position to assess the same, an opportunity not equally open to an appellate
court.33 Verily

Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract
in a court of last resort. She oft hides in nooks and crannies visible only to the minds
eye of the judge who tries the case x x x x. The brazen face of the liar, the glibness of
the schooled witness in reciting a lesson, or the overeagerness of the swift witness, as
well as the honest face of the truthful one, are alone seen by him. 34cräläwvirtualibräry

What remains to be determined is whether the elements of the felonies have been
established.

The Court will not dwell further on the crime of Arson because, as admitted no less by
counsel for accused-appellant, the penalty of reclusion perpetua has become final and
executory for failure of the defense to appeal the same. 35cräläwvirtualibräry

On the other hand, the Information indicting accused-appellant for the special complex
crime of Robbery with Homicide alleged that the felony was committed with disregard to
the respect due the offended party on account of her age and sex, further aggravated
by dwelling and unlawful entry. The elements of the complex crime of Robbery with
Homicide are: (1) the taking of personal property with the use of violence or intimidation
against a person; (2) the property thus taken belongs to another; (3) the taking is
characterized by intent to gain or animus lucrandi; and (4) on occasion of the robbery or
by reason thereof, the crime of homicide, which is used in a generic sense, was
committed.36cräläwvirtualibräry

In the appreciation of evidence in criminal cases, it is the basic tenet that the
prosecution has the burden of proof in establishing the guilt of the accused for all the
offenses charged ei incumbit probatio qui dicit, non qui negat.37 He who asserts, not he
who denies, must prove.38 The conviction of accused-appellant must rest not on the
weakness of his defense but on the strength of the prosecutions evidence.

In proving the case of Robbery with Homicide, it is necessary that the robbery itself be
established conclusively as any other essential element of the crime. 39 This is not so in
the instant case. Apart from the sack of rice, necklace with pendant, three rings, vial of
perfume and cash which were recovered within the vicinity of the burned house, no one
saw accused-appellant actually asporting these items, much less has it been
satisfactorily shown that robbery was the main purpose of the culprit in perpetrating the
crimes. In fact, the sack containing the four gantas of rice was found some forty to fifty
meters away from the house,40 while the rest of the items were found hidden under
some rocks nearby.41 Yet accused-appellant was convicted of the complex crime
because according to the lower court, [w]ith the recovery of the various items in or about
the vicinity of the burned house, including cash money, the [c]ourt is convinced that
robbery was the main purpose of the culprit and that the killing was merely incidental
thereto.42 This is a glaring error because it practically convicts the accused-appellant of
the crime charged on the basis of an assumption. Where a complex crime is charged
and the evidence fails to support the charge as to one of the component offenses, the
accused can be convicted only of the offense proved. 43 Absent any evidence that the
accused indeed robbed the victim, the special complex crime of robbery with homicide
cannot stand.44cräläwvirtualibräry

In any event, the aggravating circumstances alleged attended the killing. The immutable
fact remains that the crime of homicide was committed in the victims dwelling and
without regard to her age and sex.

The circumstance of dwelling aggravates the felony when the crime was committed in
the residence of the offended party and the latter was not given provocation. 45 It is
considered an aggravating circumstance primarily because of the sanctity of privacy
that the law accords to the human abode.46 As one commentator puts it, ones dwelling
is a sanctuary worthy of respect; thus one who slanders another in the latters house is
more severely punished than one who offends him elsewhere. 47 According to Cuello
Calon, the commission of the crime in anothers dwelling shows worse perversity and
produces graver alarm.48cräläwvirtualibräry

Anent the circumstance of age, there must be a showing that the

malefactor deliberately intended to offend or insult the age of the victim. 49 Neither could
disregard of respect due to sex be appreciated if the offender did not manifest
any intention to offend or disregard the sex of the victim.50 In other words, killing a
woman is not attended by the aggravating circumstance if the offender did not manifest
any specific insult or disrespect towards the offended partys sex. 51 In the case at bar,
there is absolutely no showing that accused-appellant deliberately intended to offend or
insult the victim. However, even if disrespect or disregard of age or sex were not
appreciated, the four circumstances enumerated in Article 14, paragraph 3 of the
Revised Penal Code, as amended, can be considered singly or together.52 Article 64,
paragraph 3, of the Revised Penal Code is clear on this point:

ART. 64. Rules for the application of penalties which contain three periods. In cases in
which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of Article 76 and 77, the courts shall observe
for the application of the penalty the following rules according to whether there are no
mitigating or aggravating circumstances:

xxx
3. When only an aggravating circumstance is present in the commission of the act, they
shall impose the maximum period.

xxx.

The penalty imposable on accused-appellant for homicide, under Article 249 of the
Revised Penal Code, is reclusion temporal in its maximum period. Applying the
Indeterminate Sentence Law, accused-appellant should be sentenced to suffer the
penalty of ten years and one day of prision mayor, as minimum, to seventeen years,
four months and one day of reclusion temporal, as maximum.

The civil damages awarded by the trial court are in accordance with controlling statutory
provisions and case law on the matter. Following prevailing jurisprudence and in line
with controlling policy, the Court finds the award of P50,000.00 as civil indemnity for the
death of the victims proper, without any need of proof other than the death of the
victim.53cräläwvirtualibräry

The award of moral damages in the amount of P50,000.00 to the victims heirs is
likewise proper taking into consideration the pain and anguish of the victims family
brought about by her death.54cräläwvirtualibräry

The award of P115,960.00 as actual damages for the funeral and burial expenses
incurred by the heirs of Francisca Tubon, being amply supported by documentary
evidence,55 is likewise sustained.

The attendance of an aggravating circumstance, however, warrants the additional

imposition of exemplary damages under Article 2230 of the Civil Code, 56 which the
Court fixes at P50,000.00.57cräläwvirtualibräry

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of
Cabugao, Ilocos Sur, Branch 24, in Criminal Case Nos. 1818-K, is MODIFIED.
Accused-appellant Edralin Taboga is found guilty beyond reasonable doubt of the crime
of Homicide and is sentenced to suffer an indeterminate penalty of ten (10) years and
one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal, as maximum. He is ordered to pay the heirs of the
deceased the sum of P50,000.00 as exemplary damages, in addition to the amounts of
P50,000.00 as civil indemnity, P115,960.00 as actual damages, and P50,000.00 as
moral damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo,
Buena, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
 [G.R. No. 140740. April 12, 2002

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUANITO BALOLOY, Accused-

Appellant.

DECISION

PER CURIAM :

At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of
3 August 1996, the dead body of an 11-year-old girl Genelyn Camacho (hereafter
GENELYN) was found. The one who caused its discovery was accused-appellant
Juanito Baloloy (hereafter JUANITO) himself, who claimed that he had caught sight of it
while he was catching frogs in a nearby creek. However, based on his alleged
extrajudicial confession, coupled with circumstantial evidence, the girls unfortunate fate
was pinned on him. Hence, in this automatic review, he seeks that his alleged
confession be disregarded for having been obtained in violation of his constitutional
rights, and that his conviction on mere circumstantial evidence be set aside.

The information 1 charging JUANITO with the crime of rape with homicide reads as
follows:

That on August 3, 1996 at about 6:30 oclock in the evening, at Barangay Inasagan,
Municipality of Aurora, province of Zamboanga del Sur, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, by means of
force and intimidation, did then and there, willfully, unlawfully and feloniously have
carnal knowledge with one Genelyn Camacho, a minor against the latters will and on
said occasion and by reason of the rape, the said Genelyn Camacho died as a result of
personal violence, inflicted upon her by the accused.

Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659.

The case was docketed as Criminal Case No. AZ-CC-96-156.

Upon arraignment 2 on 10 December 1996, JUANITO entered a plea of not guilty. Trial
on the merits ensued thereafter.

Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora,
Zamboanga del Sur, testified that at about 5:00 p.m. of 3 August 1996, he asked
GENELYN to borrow some rice from their neighbor Wilfredo Balogbog whose house
was about 200 meters away. GENELYN forthwith left, but never returned. Thus, Jose
went to the house of Wilfredo, who informed him that GENELYN had already left with
one ganta of rice. Jose then started to look for GENELYN. Speculating that GENELYN
might have taken shelter at the house of their neighbor Olipio Juregue while it was
raining, Jose proceeded to Olipios house. Unfortunately, Jose did not find GENELYN
there. Not losing hope, Jose proceeded to the house of Ernesto Derio. On his way, he
met Wilfredo, who accompanied him to the house of Ernesto. GENELYN was not there
either. They continued their search for GENELYN, but when it proved to be in vain, the
two decided to go home. 3cräläwvirtualibräry

A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO
informed Jose that he saw a dead body at the waterfalls, whose foot was showing.
When asked whose body it was, JUANITO answered that it was GENELYNs.
Immediately, the three went to the waterfalls where JUANITO pointed the spot where he
saw GENELYNs body. With the aid of his flashlight, Jose went to the spot, and there he
saw the dead body floating face down in the knee-high water. True enough, it was
GENELYNs. Jose reported the incident to Barangay Captain Luzviminda Ceniza. Upon
Cenizas order, the Bantay Bayan members and some policemen retrieved and brought
GENELYNs dead body to Joses house. 4cräläwvirtualibräry

Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his
house in the afternoon of 3 August 1996 to borrow some rice. GENELYN had with her
an umbrella that afternoon, as it was raining. He learned that GENELYN failed to reach
her home when Jose came to look for her. 5cräläwvirtualibräry

Ernesto Derio, JUANITOs uncle-in-law, testified that at about 6:30 p.m. of 3 August
1996, Jose, together with Wilfredo Balogbog, arrived at his house to look for GENELYN,
but they immediately left when they did not find her. At about 7:30 p.m., JUANITO
arrived at Ernestos house, trembling and apparently weak. JUANITO was then bringing
a sack and a kerosene lamp. When Ernesto asked JUANITO where he was going, the
latter said that he would catch frogs; and then he left. After thirty minutes, JUANITO
returned and told Ernesto that he saw a foot of a dead child at the waterfalls. With the
disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose.
JUANITO followed him. There, JUANITO told Jose that he saw a foot of a dead child at
the waterfalls. When Jose asked whether it was GENELYNs, JUANITO answered in the
affirmative. The three then proceeded to the waterfalls, where JUANITO pointed the
place where he saw the body of GENELYN. Jose immediately approached the body,
and having confirmed that it was GENELYNs, he brought it to a dry
area. 6cräläwvirtualibräry

Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a
black rope to Barangay Captain Ceniza. The latter asked those present as to who
owned the rope. When JUANITO admitted ownership of the rope, Ceniza brought him
away from the crowd to a secluded place and talked to him. 7cräläwvirtualibräry

Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernestos)
child, an incident that caused a fight between him (JUANITO) and his (Ernestos)
wife. 8cräläwvirtualibräry

Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed
by Joses brother that GENELYN was drowned. He and the Bantay Bayan members
proceeded to the place of the incident and retrieved the body of GENELYN. At 8:00
a.m. of the following day he, together with Edgar Sumalpong and Andres Dolero, went
to the waterfalls to trace the path up to where GENELYN was found. There, they found
a black rope and an umbrella. They gave the umbrella to Joses wife, and the black rope
to Barangay Captain Ceniza, who was then attending the wake of GENELYN. Ceniza
asked those who were at the wake whether anyone of them owned the rope. JUANITO
answered that he owned it. Thereafter Ceniza talked to JUANITO. 9cräläwvirtualibräry

Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope
and umbrella at the waterfalls where GENELYNs body was found. 10cräläwvirtualibräry

Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at
about 8:30 p.m. of 3 August 1996, Jose Camacho, Ernesto Derio, Porferio Camacho,
and JUANITO arrived at her house to inform her that JUANITO found GENELYNs dead
body at the waterfalls. Ceniza forthwith ordered the members of the Bantay Bayan to
retrieve the body of GENELYN, and reported the incident to the police headquarters of
Aurora, Zamboanga del Sur. She specifically named JUANITO as her suspect. She
then went home and proceeded to Joses house for GENELYNs wake. She saw
JUANITO at the wake and noticed that he was very uneasy. 11cräläwvirtualibräry

Ceniza further revealed that on 4 August 1996, while she was on her way to Joses
house, Antonio gave her a black rope, which he reportedly found at the spot where the
dead body of GENELYN was retrieved. Ceniza then asked the people at the wake
about the rope. JUANITO, who was among those present, claimed the rope as his. She
brought JUANITO away from the others and asked him why his rope was found at the
place where GENELYNs body was discovered. JUANITO answered: I have to claim this
as my rope because I can commit sin to God if I will not claim this as mine because this
is mine. Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza that
his intention was only to frighten GENELYN, not to molest and kill her. When GENELYN
ran away, he chased her. As to how he raped her, JUANITO told Ceniza that he first
inserted his fingers into GENELYNs vagina and then raped her. Thereafter, he threw
her body into the ravine. 12cräläwvirtualibräry

After such confession, Ceniza examined his body and found a wound on his right
shoulder, as well as abrasions and scratches on other parts of his body. Upon further
inquiry, JUANITO told her that the wound on his shoulder was caused by the bite of
GENELYN. Ceniza then turned over JUANITO to a policeman for his own protection, as
the crowd became unruly when she announced to them that JUANITO was the culprit.
JUANITO was forthwith brought to the police headquarters. 13cräläwvirtualibräry

Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the
Aurora Police Station, testified that at about 10:00 p.m. of 4 August 1996 he was at
Joses house. Ceniza informed him that JUANITO was the suspect in the killing of
GENELYN, and she turned over to him a black rope which belonged to JUANITO. He
wanted to interrogate JUANITO, but Ceniza cautioned him not to proceed with his
inquiry because the people around were getting unruly and might hurt JUANITO.
Mosqueda immediately brought JUANITO to the police station, and on that same day,
he took the affidavits of the witnesses. The following day, a complaint was filed against
JUANITO. 14cräläwvirtualibräry

Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified
that he examined JUANITO so as to verify the information that JUANITO sustained
wounds in his body. 15 His examination of JUANITO revealed the following injuries:

1. fresh abrasions on the right portion of the cheek;

2. multiple abrasions on the right shoulder;
3. abrasion on the left shoulder; and
4. abrasions on the left forearm.16cräläwvirtualibräry

Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August
1996 and found the following injuries:

1. 2.5-inch lacerated wound at her left neck, front of the head;

2. 1-inch wound at the right cheek just below the first wound;
3. multiple contusions on her chest;
4. contusion at the right hip; and
5. fresh lacerations on her vagina at 9 oclock and 3 oclock positions. 17cräläwvirtualibräry

He opined that the fresh lacerations could have been caused by a large object inserted
into GENELYNs vagina, such as a male sex organ, a rod, or a piece of wood or
metal. 18cräläwvirtualibräry

Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga
del Sur, testified that when he arrived in his office at around 8:30 a.m. of 4 August 1996
several people, including Barangay Captain Ceniza, were already in his courtroom. He
learned that they came to swear to their affidavits before him. After reading the affidavit
of Ceniza, he asked Ceniza whether her statements were true. Ceniza answered in the
affirmative and pointed to JUANITO as the culprit. Judge Dicon turned to JUANITO and
asked him whether the charge against him was true. JUANITO replied in the dialect:
[N]apanuwayan ko, sir (I was demonized). While Judge Dicon realized that he should
not have asked JUANITO as to the truthfulness of the allegations against him, he felt
justified in doing so because the latter was not under custodial investigation. Judge
Dicon thus proceeded to ask JUANITO whether he had a daughter as old as the victim
and whether he was aware of what he had done to GENELYN. Again, JUANITO
responded that he was demonized, and he spontaneously narrated that after he struck
GENELYNs head with a stone he dropped her body into the
precipice. 19cräläwvirtualibräry

Lopecino Albano, process server in the court of Judge Dicon, corroborated the
testimony of the latter as to JUANITOs admission that he was demonized when he
raped and killed GENELYN. 20cräläwvirtualibräry
The sole witness for the defense was JUANITO, who invoked denial and alibi. He
testified that he was at his mothers house at around 6:30 p.m. of 3 August 1996. An
hour later, he left for the creek to catch frogs; and while catching frogs, he saw a foot.
He forthwith headed for Ernesto Derios house to ask for help. There, he told Ernesto
and his wife of what he had seen. Ernestos wife asked JUANITO whether the person
was still alive, and JUANITO answered that he was not sure. At this point, Ernesto
informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto
then proceeded to the house of Jose to inform the latter of what he, JUANITO, had
seen. The three forthwith went to the creek. There, they found out that the foot was
GENELYNs and that she was already dead. Upon Joses request, JUANITO and
Ernesto informed Joses brother about the incident, and they proceeded to the house of
Ceniza. Thereafter, they, along with the members of the Bantay Bayan, went back to
the creek to retrieve the body of GENELYN. 21cräläwvirtualibräry

JUANITO further recalled that after the body of GENELYN was brought to her parents
house, he helped saw the lumber for her coffin. Thereafter, he went to Ernestos house
to get the sack containing the seventeen frogs he had caught that night, which he earlier
left at Ernestos house. He was shocked to find out that the rope which he used to tie the
sack, as well as all the frogs he caught, was missing. As it was already dawn, JUANITO
left his sack at his mothers house; then he proceeded to the house of Jose to help make
the coffin of GENELYN. But, at around 8:00 a.m., policeman Banaag came looking for
him. He stopped working on GENELYNs coffin and identified himself. Banaag took him
away from the house of Jose and asked him whether he owned the rope. JUANITO
answered in the affirmative. At this point, policeman Mosqueda came near them and
escorted him and Banaag back to Joses house. At Joses house, Mosqueda announced
to the crowd that JUANITO was the suspect in GENELYNs untimely demise. JUANITO
was then detained and investigated at the police station. 22 During his investigation by
the police officers and by Judge Dicon, he was never assisted by a
lawyer. 23cräläwvirtualibräry

In its challenged decision, 24 the trial court found JUANITO guilty beyond reasonable
doubt of the crime of rape with homicide. On the challenge on the admissibility of the
admissions he made to Barangay Captain Ceniza and Judge Dicon, it ruled that they
are not the law enforcement authorities referred to in the constitutional provisions on the
conduct of custodial investigation. Hence, JUANITOs confessions made to them are
admissible in evidence. Moreover, no ill-motive could be attributed to both Ceniza and
Judge Dicon. It also found unsubstantiated JUANITOs claim that he was threatened by
his fellow inmates to make the confession before Judge Dicon; and that, even assuming
that he was indeed threatened by them, the threat was not of the kind contemplated in
the Bill of Rights. The threat, violence or intimidation that invalidates confession must
come from the police authorities and not from a civilian. Finally, it ruled that JUANITOs
self-serving negative evidence cannot stand against the prosecutions positive evidence.

The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the
penalty of death. It also ordered him to pay the heirs of the victim the amount
of P50,000 by way of civil indemnity. Hence, this automatic review.
In his Appellants Brief, JUANITO imputes to the trial court the following errors:

THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED

CONFESSION OF THE ACCUSED-APPELLANT TO WITNESSES LUZVIMINDA
CE[N]IZA AND JUDGE CELESTINO DICON AS EVIDENCE AGAINST THE
ACCUSED.

II

ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSEDS ALLEGED

CONFESSION THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED
BASED ON MERE CIRCUMSTANTIAL EVIDENCE.

Anent the first assigned error, JUANITO maintains that the trial court violated Section
12(1) of Article III of the Constitution 25 when it admitted in evidence his alleged
extrajudicial confession to Barangay Captain Ceniza and Judge Dicon. According to
him, the two failed to inform him of his constitutional rights before they took it upon
themselves to elicit from him the incriminatory information. It is of no moment that
Ceniza and Dicon are not police investigators, for as public officials it was incumbent
upon them to observe the express mandate of the Constitution. While these rights may
be waived, the prosecution failed to show that he effectively waived his rights through a
written waiver executed in the presence of counsel. He concludes that his extrajudicial
confession is inadmissible in evidence.

In his second assigned error, JUANITO asserts that the prosecution miserably failed to
establish with moral certainty his guilt. He points to the contradicting testimonies of the
witnesses for the prosecution concerning the retrieved rope owned by him.
Consequently, with the inadmissibility of his alleged extrajudicial confession and the
apparent contradiction surrounding the prosecutions evidence against him, the trial
court should have acquitted him.

In the Appellees Brief, the Office of the Solicitor General (OSG) supports the trial courts
finding that JUANITO is guilty beyond reasonable doubt of the crime as charged. His
bare denial and alibi cannot overcome the positive assertions of the witnesses for the
prosecution. Moreover, he was unable to establish by sufficient evidence that Barangay
Captain Ceniza and Judge Dicon had an ulterior motive to implicate him in the
commission of the crime.

The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be
increased to P75,000; and that in line with current jurisprudence, moral damages in the
amount of P50,000 be awarded to the heirs of GENELYN.

We shall first address the issue of admissibility of JUANITOs extrajudicial confession to

Barangay Captain Ceniza.
It has been held that the constitutional provision on custodial investigation does not
apply to a spontaneous statement, not elicited through questioning by the authorities but
given in an ordinary manner whereby the suspect orally admits having committed the
crime. Neither can it apply to admissions or confessions made by a suspect in the
commission of a crime before he is placed under investigation. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The rights under
Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion
by the state as would lead the accused to admit something false, not to prevent him
from freely and voluntarily telling the truth. 26cräläwvirtualibräry

In the instant case, after he admitted ownership of the black rope and was asked by
Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped
GENELYN and thereafter threw her body into the ravine. This narration was a
spontaneous answer, freely and voluntarily given in an ordinary manner. It was given
before he was arrested or placed under custody for investigation in connection with the
commission of the offense.

It may be stressed further that Cenizas testimony on the facts disclosed to her by
JUANITO was confirmed by the findings of Dr. Lumacad. GENELYNs physical
resistance and biting of the right shoulder of JUANITO were proved by the wound on
JUANITOs right shoulder and scratches on different parts of his body. His admission
that he raped GENELYN was likewise corroborated by the fresh lacerations found in
GENELYNs vagina.

Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part
of Ceniza, which could have compelled her to testify falsely against him. Where there is
no evidence to show a doubtful reason or improper motive why a prosecution witness
should testify against the accused or falsely implicate him in a crime, the said testimony
is trustworthy. 27cräläwvirtualibräry

However, there is merit in JUANITOs claim that his constitutional rights during custodial
investigation were violated by Judge Dicon when the latter propounded to him
incriminating questions without informing him of his constitutional rights. It is settled that
at the moment the accused voluntarily surrenders to, or is arrested by, the police
officers, the custodial investigation is deemed to have started. So, he could not
thenceforth be asked about his complicity in the offense without the assistance of
counsel. 28 Judge Dicons claim that no complaint has yet been filed and that neither was
he conducting a preliminary investigation deserves scant consideration. The fact
remains that at that time JUANITO was already under the custody of the police
authorities, who had already taken the statement of the witnesses who were then before
Judge Dicon for the administration of their oaths on their statements.

While Mosqueda claims that JUANITO was not arrested but was rather brought to the
police headquarters on 4 August 1996 for his protection, the records reveal that
JUANITO was in fact arrested. If indeed JUANITOs safety was the primordial concern of
the police authorities, the need to detain and deprive him of his freedom of action would
not have been necessary. Arrest is the taking of a person into custody in order that he
may be bound to answer for the commission of an offense, and it is made by an actual
restraint of the person to be arrested, or by his submission to the person making the
arrest. 29cräläwvirtualibräry

At any rate, while it is true that JUANITOs extrajudicial confession before Judge Dicon
was made without the advice and assistance of counsel and hence inadmissible in
evidence, it could however be treated as a verbal admission of the accused, which
could be established through the testimonies of the persons who heard it or who
conducted the investigation of the accused. 30cräläwvirtualibräry

JUANITOs defense of alibi is futile because of his own admission that he was at the
scene of the crime. Alibi is a defense that places an accused at the relevant time of a
crime in a place other than the scene involved and so removed therefrom as to render it
impossible for him to be the guilty party. 31 Likewise, a denial that is unsubstantiated by
clear and convincing evidence is a negative and self-serving evidence, which cannot be
accorded greater evidentiary weight than the declaration of credible witnesses who
testify on affirmative matters. 32cräläwvirtualibräry

Anent the alleged inconsistencies in the details surrounding the recovery of the black
rope, the same are irrelevant and trite and do not impair the credibility of the witnesses.
Minor inconsistencies and honest lapses strengthen rather than weaken the credibility
of witnesses, as they erase doubts that such testimonies have been coached or
rehearsed. 33 What matters is that the testimonies of witnesses agree on the essential
fact that JUANITO was the owner of the black rope and the perpetrator of the crime.

Even if JUANITOs confession or admission is disregarded, there is more than enough

evidence to support his conviction. The following circumstances constitute an unbroken
chain proving beyond reasonable doubt that it was JUANITO who raped and killed
GENELYN:

1. At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to
borrow some rice from their neighbor Wilfredo Balogbog. GENELYN did so as told, but
failed to return home.

2. About 7:30 p.m. of the same day, JUANITO arrived at Ernestos house bringing a
sack and kerosene lamp, trembling and apparently weak.

3. Thirty minutes thereafter, JUANITO returned to Ernestos house and told Ernesto that
he saw a foot of a dead child at the waterfalls, without disclosing the identity of the
deceased.

4. When JUANITO and Ernesto were at Joses house, the former told Jose that it was
GENELYNs foot he saw at the waterfalls.
5. GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall
at 9 and 3 oclock positions.

6. At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar
Sumalpong recovered at the crime site a black rope, which they turned over to Ceniza,
who was then at GENELYNs wake.

7. When Ceniza asked the people around as to who owned the black rope, JUANITO
claimed it as his.

8. When Ceniza examined JUANITOs body, she saw a wound on his right shoulder and
scratches on different parts of his body.

9. Dr. Lumancads physical examination of JUANITO revealed abrasions, which could

have been caused by scratches.

Guilt may be established through circumstantial evidence provided that the following
requisites concur: (1) there is more than one circumstance; (2) the inferences are based
on proven facts; and (3) the combination of all circumstances produces a conviction
beyond reasonable doubt of the guilt of the accused. 34 All these requisites are present
in the case at bar.

With JUANITOs guilt for rape with homicide proven beyond reasonable doubt, we are
constrained to affirm the death penalty * imposed by the trial court. Article 335 of the
Revised Penal Code, as amended by Section 11 of R.A. No. 7659, pertinently provides:
When by reason or on occasion of the rape, a homicide is committed, the penalty shall
be death.

As to JUANITOs civil liability, prevailing judicial policy has authorized the mandatory
award of P100,000 35 as civil indemnity ex delicto in cases of rape with homicide
(broken down as follows: P50,000 for the death and P50,000 upon the finding of the fact
of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity
in the amount of P100,000 is fully justified and properly commensurate with the
seriousness of the said special complex crime. Moral damages in the amount
of P50,000 may be additionally awarded to the heirs of the victim without the need for
pleading or proof of the basis thereof; the fact that they suffered the trauma of mental,
physical and psychological sufferings, which constitutes the basis for moral damages
under the Civil Code, is too obvious to still require the recital thereof at the
trial. 36cräläwvirtualibräry

WHEREFORE , the decision of the Regional Trial Court, Branch 30, Aurora,
Zamboanga Del Sur, in Criminal Case No. AZ-CC-96-156, finding accused-appellant
Juanito Baloloy guilty of the crime of rape with homicide and sentencing him to suffer
the penalty of death is AFFIRMED with the modification that he is ordered to pay the
heirs of Genelyn Camacho P100,000 as indemnity and P50,000 as moral damages.
In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised
Penal Code, upon finality of this Decision, let the records of this case be forthwith
forwarded to the Office of the President for possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.