37 Phil.

731

G.R. No. 12592, March 08, 1918

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. FELIPE

BUSTOS ET AL., DEFENDANTS AND APPELLANTS.

DECISION

MALCOLM, J.:

This appeal presents the specific question of whether or not the defendants and appellants are
guilty of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province
of Pampanga. The appeal also submits the larger question of the attitude which the judiciary
should take in interpreting and enforcing the Libel Law in connection with the basic
prerogatives of freedom of speech and press, and of assembly and petition. For a better
understanding, the facts in the present appeal are first narrated in the order of their occurrence,
then certain suggestive aspects relative to the rights of freedom of speech and press and of
assembly and petition are interpolated, then the facts are tested by these principles, and, finally,
judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga
assembled, and prepared and signed a petition to the Executive Secretary through the law office
of Crossfield & O'Brien, and five individuals signed affidavits, charging Roman Punsalan,
justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and
asking for his removal. Crossfield & O'Brien submitted this petition and these affidavits with a
complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by
thirty-four citizens apparently of considerable standing, including councilors and property
owners (now the defendants), and contained the statements set out in the information as
libelous. Briefly stated the specific charges against the justice of the peace were:

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the
justice of the peace, who first told her that he would draw up the complaint for P5; afterwards
he said he would take P3 which she paid; also kept her in the house" for four days as a servant
and took from her two chickens and twelve "gandus;"

2. That Valentin Sunga being interested in a case regarding land which was on trial before the
justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and
was told by the justice of the peace that if he wished to win he must give him P50. Not having
this amount, Sunga gave the justice nothing, and a few days later was informed that he had lost
the case. Returning again to the office of the justice of the peace in order to appeal, the justice
told him that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day
of the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30;
and the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the Seventh
Judicial District requesting investigation, proper action, and report. The justice of the peace was
notified and denied the charges. The judge of first instance found the first count not proved and
counts 2 and 3 established. In view of this result, the judge, the Honorable Percy M. Moir, was
of the opinion "that it must be, and it is hereby, recommended to the Governor-General that the
respondent be removed from his position as justice of the peace of Macabebe and Masantol,
Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to
the Executive Secretary."

Later the justice of the peace filed a motion for a new trial; the judge of first instance granted
the motion and reopened the hearing; documents were introduced, including a letter sent by the
municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the
peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the
peace, had instituted the charges for personal reasons; and the judge of first instance ordered a
suppression of the charges against Punsalan and acquitted him of the same. Attorneys for
complainants thereupon appealed to the Governor-General, but whether the papers were
forwarded to the Governor-General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October
12, 1916, by virtue of the following information:

"That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P.
I., the said accused, voluntarily, illegally, and criminally and with malicious intent to prejudice
and defame Mr. Roman Punsalan Serrano who was at said time and place justice of the peace of
Macabebe and Masantol of this province, wrote, signed, and published a writing which was
false, scandalous, malicious, defamatory, and libelous against the justice of the peace Mr.
Roman Punsalan Serrano, in which writing appear among other things the following:

" 'That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on
account of the conduct observed by him heretofore, a conduct highly improper of the office
which he holds, is found to be a public functionary who is absolutely unfit, eminently immoral
and dangerous to the community, and consequently unworthy of the office.

" 'That this assertion of the undersigned is evidenced in a clear and positive manner by facts so
certain, so serious, and so denigrating which appear in the affidavits attached hereto, and by
other facts no less serious, but which the undersigned refrain from citing herein for the sake of
brevity and in order not to bother too much the attention of your Honor and due to lack of
sufficient proof to substantiate them.

" 'That should the higher authorities allow the said justice of the peace of this town to continue
in his office, the protection of the rights and interests of its inhabitants will be illusory and
utopic; rights and interests solemnly guaranteed by the Philippine Bill of Rights, and justice in
this town will not be administered in accordance with law.

" 'That on account of the wrongful discharge of his office and of his bad conduct as such justice
of the peace, previous to this time, some respectable citizens of this town of Macabebe were
compelled to present an administrative case against the said Roman Punsalan Serrano before the
judge of first instance of Pampanga, in which case there were made against him various charges
which were true and certain and of different characters.
" 'That after the said administrative case was over, the said justice of the peace, far from
changing his bad and despicable conduct, which h^s roused the indignation of this town of
Macabebe, subsequently performed the acts above- mentioned, as stated in the affidavits
herewith attached, as if intending to mock at the people and to show his mistaken valor and
heroism.'

"All of this has been written and published by the accused with the deliberate purpose of
attacking the virtue, honor, and reputation of the justice ©f the peace, Mr. Roman Punsalan
Serrano, and thus exposing him to public hatred, contempt, and ridicule. All contrary to law."

It should be noted that the information omits paragraphs of the petition mentioning the
investigation before the judge of first instance, the affidavits upon which based and the
concluding words, "To the Executive Secretary, through the office of Crossfield & O'Brien."

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez,
Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to
pay a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in
case of insolvency. New attorneys for the defense, coming into the case, after the handing down
of the decision, filed on December 16, 1916, a motion for a new trial, the principal purpose of
which was to retire the objection interposed by the then counsel for the defendants to the
admission of Exhibit A consisting of the entire administrative proceedings. The trial court
denied the motion. All the defendants, except Melecio S. Sabado and Fortunato Macalino
appealed making the following assignments of error:

"1. The court erred in overruling the motion of the convicted defendants for a new trial.

"2. The court erred in refusing to permit the defendants to retire the objection inadvertently
interposed by their counsel to the admission in evidence of the expediente administrativo out of
which the accusation in this case arose.

"3. The court erred in sustaining the objection of the prosecution to the introduction in evidence
by the accused of the affidavits upon which the petition forming the basis of the libelous charge
was based.

"4. The court erred in not holding that the alleged libelous statement was unqualifiedly
privileged.

"5. The court erred in assuming and impliedly holding that the burden was on the defendants to
show that the alleged libelous statements were true and free from malice.

"6. The court erred in not acquitting the defendants.

"7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt
This is especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T.
Reyes."

We have thus far taken it for granted that all the proceedings, administrative and judicial, were
properly before this court. As a matter of fact counsel for defendants in the lower court made an
improvident objection to the admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which objection was partially
sustained by the trial court. Notwithstanding this curious situation by reason of which the
attorney for the defense attempted to destroy through his objection the very foundation for the
justification of his clients, we shall continue to consider all the proceedings as before us. Not
indicating specifically the reason for this action, lat the following be stated: The administrative
proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the
accusation, the information, the evidence, and the judgment rendered. The prosecution cannot
be understood without knowledge of anterior action. Nothing more unjust could be imagined
than to pick out certain words which standing by themselves and unexplained are libelous and
then by shutting off all knowledge of facts which would justify these words, to convict the
accused. The records in question are attached to the rollo, and either on the ground that the
attorneys for the defense retired the objection to the introduction of the administrative
proceedings by the prosecution, or that a new trial should have been had because under section
42 of the Code of Criminal Procedure "a case may be reopened on account of errors at law
committed at the trial," or because of the right of this court to call in such records as are
sufficiently incorporated into the complaint and are essential to a determination of the case, or
finally, because of our conceded right to take judicial notice of official action in administrative
cases and of judicial proceedings supplemental to the basis action, we examine the record as
before us, containing not alone the trial for libel, but the proceedings previous to that trial giving
rise to it. To this action, the Government can not complain for it was the prosecution which tried
to incorporate Exhibit A into the record.

With these facts pleading justification, before testing them by certain principles which make up
the law of libel and slander, we feel warranted in seizing the opportunity to intrude an
introductory and general discussion of freedom of speech and press and assembly and petition
in the Philippine Islands. We conceive that the time is ripe thus to clear up certain
misapprehensions on the subject and to place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that freedom of speech
as cherished in democratic countries was unknown in the Philippine Islands before 1900. A
prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien
Años" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus
non" which the Filipinos insist upon, said:

"The minister, * * * wno wants his reforms to be reforms, must begin by declaring the press in
the Philippines free and by instituting Filipino delegates."

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means
invariably in exposing the wants of the Filipino people demanded "liberty of the press, of cults,
and of associations." (See Mabini, La Revolution Filipina.) The Malolos Constitution, the work
of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and
press and assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to
the people of these Islands and won at so dear a cost, should now be protected and carried
forward as one would protect and preserve the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United
States and the State constitutions guarantee the right" of freedom of speech and press and the
right of assembly and petition. We are therefore, not surprised to find President McKinley in
that Magna Charta of Philippine Liberty, the Instruction to the Second Philippine Commission,
of April 7,1900, laying down the inviolable rule "That no law shall be passed abridging the
freedom of speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for a redress of grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of
Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this
guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are
the counterpart of the first amendment to the Constitution of the United States, which the
American people demanded before giving their approval to the Constitution.

We mention the foregoing facts only to deduce the proposition never to be forgotten for an
instant that the guaranties mentioned are part and parcel of the Organic Law—of the
Constitution—of the Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The
language carries with it all the applicable jurisprudence of great English and American
Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U.
S., 470.) And what are these principles? Volumes would inadequately answer. But included are
the following:

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is
less than the State, so must expected criticism be born for the common good. Rising superior to
any official or set of officials, to the Chief Executive, to the Legislature, to the Judiciary—to
any or all the agencies of Government—public opinion should be the constant source of liberty
and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73;
Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.)

The guaranties of a free speech and a free press include the right to criticize judicial conduct.
The administration of the law is a matter of vital public concern. Whether the law is wisely or
badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a
justice of the peace or a judge the same as any other public officer, public opinion will be
effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would
be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang
suspended over the individual who dares to assert his prerogative as a citizen and to stand up
bravely before any official. On the contrary, it is a duty which every one owes to society or to
the State to assist in the investigation of any alleged misconduct. It is further the duty of all who
know of any official dereliction on the part of a magistrate or the wrongful act of any public
officer to bring the facts to the notice of those whose duty it is to inquire into and punish them.
In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. "The people
are not obliged to speak of the conduct of their officials in whispers or with bated breath in a
free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y.,
510.)
The right to assemble and petition is the necessary consequence of republican institutions and
the complement of the right of free speech. Assembly means a right on the part of citizens to
meet peaceably for consultation in respect to public affairs. Petition means that any person or
group of persons can apply, without fear of penalty, to the appropriate branch or office of the
government for a redress of grievances. The persons assembling and petitioning must, of course,
assume responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have
demanded protection for public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege.

"The doctrine of privileged communications rests upon public policy, 'which looks to the free
and unfettered administration of justice, though, as an incidental result, it may in some instances
afford an immunity to the evil disposed and malignant slanderer.' " (Abbott vs. National Bank of
Commerce, Tacoma [1899], 175 U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to
qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof
of malice. The rule is thus stated by Lord Campbell, C. J.

"A communication made bona fide upon any subject-matter in which the party communicating
has an interest, or in reference to which he has a duty, is privileged, if made to a person having a
corresponding interest or duty,.although it contained criminatory matter which without this
privilege would be slanderous and actionable." (Harrison vs. Bush, 5 E. & B., 344; 1 Jur. [N. SJ,
846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good

faith and without malice in regard to the chLracter or conduct of a public official when
addressed to an officer or a board having some interest or duty in the matter. Even when the
statements are found to be false, if there is probable cause for belief in their truthfulness and the
charge is made in good faith, the mantle of privilege may still cover the mistake of the
individual. But the statements must be made under an honest sense of duty; a self-seeking
motive is destructive. Personal injury is not necessary. All persons have an interest in the pure
and efficient administration of justice and of public affairs. The duty under which a party is
privileged is sufficient if it is social or moral in its nature and this person in good faith believes
he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated
by the mere fact that the communication is made in intemperate terms. A further element of the
law of privilege concerns the person to whom the complaint should be made. The rule is that if a
party applies to the wrong person through some natural and honest mistake as to the respective
functions of various officials such unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring
home to the defendant the existence of malice as the true motive of his conduct. Falsehood and
the absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3
How., 266.)

A privileged communication should not be subjected to microscopic examination to discover

grounds of 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. (See White vs.
Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs.
Bongartz [1885], 15 R. L, 72; Street, Foundations of Legal Liability, vol. 1, pp. 308, 309;
Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom
of speech and press and of assembly and petition, having emphasized the point that our Libel
Law as a statute must be construed with reference to the guaranties of our Organic Law, and
having sketched the doctrine of privilege, we are in a position to test the facts of this case with
these principles.

It is true that the particular words set out in the information, if said of a private person, might
well be considered libelous per se. The charges might also under certain conceivable conditions
convict one of a libel of a government official. As a general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have present a simple case of
direct and vicious accusations published in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution, further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent.
The ends and the motives of these citizens—to secure the removal from office of a person
thought to be venal—were justifiable. In no way did they abuse the privilege. These respectable
citizens did not eagerly seize on a frivolous matter but on instances which not only seemed to
them of a grave character, but which were sufficient in an investigation by a judge of first
instance to convince him of their seriousness. No undue publicity was given to the petition. The
manner of commenting on the conduct of tfte justice of the peace was proper. And finally the
charges and the petition were submitted through reputable attorneys to the proper functionary,
the Executive Secretary. In this connection it is sufficient to note that justices of the peace are
appointed by the Governor-General, that they may be removed by the Governor-General upon
the recommendation of a Judge of First Instance, or on the Governor-General's own motion, and
that at the time this action took place the Executive Bureau was the office through which the
Governor-General acted in such matters. (See Administrative Code of 1917, sees. 203 and 229,
in connection with the cases of U. S. vs. Galeza [1915], 31 Phil, 365, and of Harrison vs. Bush,
5 E. & B., 344, holding that where defendant was subject to removal by the sovereign, a
communication to the Secretary of State was privileged.)

The present facts are further essentially different from those established in other cases in which
private individuals have been convicted of libels of public officials. Malice, traduction,
falsehood, calumny, against the man and not the officer, have been the causes of the verdict of
guilty. (See U. S. vs. Sedano [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil.,
513; U. S. vs. Montalvo [1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United
States vs. Julio Bustos ([1909}, 13 Phil., 690). The Julio Bustos case, the Attorney-General
says, is identical with the Felipe Bustos case, with the exception that there has been more
publicity in the present instance and that the person to whom the charge was made had less
jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if
the charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos
case we find wild statements, with no basis in fact, made against reputable members of the
judiciary, "to persons who could not. furnish protection." Malicious and untrue communications
are not privileged. A later case and one more directly in point to which we invite especial
attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs.
Commonwealth [1909], 122 So. W., 123.)

We find the defendants and appellants entitled to the protection of the rules concerning qualified
privilege, growing out of constitutional guaranties in our bill of rights. Instead of punishing
citizens for an honest endeavor to improve the public service, we should rather commend them
for their good citizenship. The defendants and appellants are acquitted with the costs de officio.
So ordered.

Arellano, C. J., Johnson, Araullo, Street, and Fisher, JJ., concur.

CONCURRING OPINION

CARSON, .J., concurring:

I concur.

I think it proper to observe, however, that in my opinion the Attorney-General is entirely correct
when he says that this case is substantially identical with the former "Bustos case (The United
States vs. Bustos, 13 Phil. Rep., 690). I believe that a careful reading of our decisions in these
cases is sufficient to demonstrate that fact. The truth is that the doctrine of the prevailing
opinion in the former Bustos case has long since been abandoned by this court; and in my
opinion it would make for the more efficient administration of the Libel Law in these Islands to
say so, in so many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U. S. vs.
Contreras [1912], 23 Phil. Rep., 513; U. S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U. S.
vs. Galeza [1915], 31 Phil. Rep., 365.)
90 Phil. 524

G.R. No. L-2990, December 17, 1951

OSCAR ESPUELAS Y MENDOZA, PETITIONER, VS. THE PEOPLE OF

THE PHILIPPINES, RESPONDENT

DECISION

BENGZON, J.:

Article 142 of the Revised Penal Code punishes those who shall write,
publish or circulate
scurrilous libels against the Government of the
Philippines or any of the duly constituted
authorities thereof or which
suggest or incite rebellious conspiracies or riots or which tend to
stir up the people against the lawful authorities or to disturb the
peace of t he community.

The appellant Oscar Espuelas y Mendoza was, after trial, convicted

in the court of first instance
of Bohol of a violation of the above
article. The conviction was affirmed by the Court of
Appeals, because
according to said court,

"About the time comprised between June 9 and June

24, 1947, both dates inclusive, in the town
of Tagbiliran, Bohol, Oscar
Espuelas y Mendoza had his picture taken, making it to appear as if
he
were hanging lifeless at the end of a piece of rope suspended from the
limb of a tree, when in
truth and in fact, he was merely standing on a
barrel (Exhibits A, C-1). After securing copies of
his photograph,
Espuelas sent copies of same to several newspapers and weeklies of
general
circulation, (Exhibits C, F, G, H, I) not only in the province
of Bohol but also throughout the
Philippines and abroad, for their
publication with a suicide note or letter, wherein he made to
appear
that it was written by a fictitious suicide, Alberto Reveniera and
addressed to the latter's
supposed wife translation of which letter or
note is hereunder reproduced:

"Dearest wife and children,

bury me fire meters deep. Over my grave don't plant a
cross or put
floral wreaths, for I don't need them"

"Please don't bury me

in a lonely place. Bury me in the Catholic cemetery. Although
I have
committed suicide, I still have the right to be buried among Christians"

"But don't pray for me. Don't remember me, and don't feel sorry. Wipe me out of
your lives.

"My dear wife, if someone asks you why I committed suicide, tell them I
did it
because I was not pleased with the administration of Roxas. Tell
the whole world
about this.

"And if they ask why I did not

like the administration of Roxas, point out to them the
situation in
Central Luzon, the Hukbalahaps. Tell them about Julio Guillen and the
banditry of Leyte.
 "Dear wife, write to President Truman and
Churchill. Tell them that here in the
Philippines our government is
infested with many Hitlers and Mussolinis.

"Teach our children to burn pictures of Roxas if and when they come across one"

"I committed suicide because I am ashamed, of our government under

Roxas. I
cannot hold high my brows to the world with this dirty
government.

"I committed suicide because I have no power to

put under Juez de Cuchillo all the
Roxas people now in power. So, I
sacrificed my own self."

The accused admitted the fact that he wrote the note or letter above quoted and caused its
publication in the Free Press, the Evening News, the Bisaya, Lamdag and
other local periodicals
and that he had impersonated one Alberto
Reveniera by signing said pseudonymous name in
said note or letter and
posed himself as Alberto Reveniera in a picture taken wherein he was
shown hanging by the end of a rope tied to a limb of a tree."

The letter is a scurrilous libel against the Government.[1] It calls our government one of crooks
and dishonest persons (dirty) infested with Nazis and Fascists i.e. dictators.

And the communication reveals a tendency to produce dissatisfaction

or a feeling incompatible
with the disposition to remain loyal to the
government.[2]

Writings which tend to overthrow or undermine the security of the

government or to weaken the
confidence of the people in the government
are against the public peace, and are criminal not
only because they
tend to incite to a breach of the peace but because they are conducive
to the
destruction of the very government itself (See 19 Am, Law Rep.
1511). Regarded as seditious
libels they were the subject of criminal
proceedings since early times in England. (V. op. cit.)

As explained by Patarson,[3]
"* * * the great factors of government, consisting of the Sovereign,
the Parliament, the ministers of state, the courts of justice, must all
be recognized as holding
functions founded on sound principles and to
be defended and treated with an established and
well-nigh unalterable
respect. Each of these great institutions has peculiar virtues and
peculiar
weaknesses, but whether at any one time the virtue or the
weakness predominates, there must be
a certain standard of decorum
reserved for all. Each guarded remonstrance, each fiery invective,
each
burst of indignation must rest on some basis of respect and deference
towards the
depository, for the time being, of every great
constitutional function. Hence another limit of free
speech and writing
is sedition. And yet within that limit there is ample room and verge
enough
for the freest use of the tongue and pen in passing strictures
on the judgment and conduct of
every constituted authority."

Naturally, when the people's share in the government was

restricted, there was a disposition to
punish even mild criticisms of
the ruler or the departments of government. But as governments
grew to
be more representative, the laws of sedition became less drastic and
freedom of
expression grew apace. Yet malicious endeavors to stir up
public strife continue to be
prohibited.

The United States punished seditious utterances in the act of July

14, 1798 containing
provisions parallel to our own article 142.
Analogous prohibitions are found in the Espionage
Act of June 1917 and
the Seditious Libel Amendment thereto in May, 1918.

Of course such legislation despite its general merit is liable to

become a weapon of Intolerance
constraining the free expression of
opinion, or mere agitation for reform. But so long as there is
a
sufficient safeguard by requiring intent on the part of the defendant
to produce illegal action
such legislation aimed at anarchy and
radicalism presents largely a question of policy. Our
Legislature has spoken in Article 142 and the law must be applied.

In disposing of this appeal, careful thought had to be given to the

fundamental right to freedom
of speech. Yet the freedom of speech
secured by the Constitution "does not confer an absolute
right to speak
or publish without responsibility whatever one may choose." It is not
"unbridled
license that gives immunity for every possible use of
language and prevents the punishment of
those who abuse this freedom." [4]
So statutes against sedition have always been considered not
violative
of such fundamental guaranty, although they should not be interpreted
so as to
unnecessarily curtail the citizen1s freedom of expression to
agitate for institutional changes. [5]

Not to be restrained is the privilege of any citizen to criticise

his government and government
officials and to submit his criticism to
the "free trade of ideas" and to plead for its acceptance in
"the
competition of the market." However, let such criticism be specific and
therefore
constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire
government setup. Such wholesale attack is
nothing less than an invitation to disloyalty to the
government. In the
article now under examination one will find no particular objectionable
actuation of the government. It is called dirty, it is called a
dictatorship, it is called shameful, but
no particular omissions or
commissions are set forth. Instead the article drips with malevolence
and hate towards the constituted authorities. It tries to arouse
animosity towards all public
servants headed by President Roxas whose
pictures this appellant would burn and would teach
the younger
generation to destroy. Analysed for meaning and weighed in its
consequences the
article cannot fail to impress thinking persons that
it seeks to sow the seeds of sedition and
strife. The infuriating
language is not a sincere effort to persuade, what with the writer's
simulated suicide and false claim to martyrdom and what with its
failure to particularise. When
the use of irritating language centers
not on per/uading the readers but on creating disturbance,
the
rationale of free speech can not apply and the speaker or writer is
removed from the
protection of the constitutional guaranty.

If it be argued that the article does not discredit the entire

governmental structure but only
President Roxas and his men, the reply
is that article 142 punishes not only all libels against the
Government
but also "libels against any of the duly constituted authorities
thereof." The"Roxas
people" in the Government obviously refer at least
to the President, his Cabinet and the majority
of legislators to whom
the adjectives "dirty", Hitlers and Mussolinis were naturally directed.
On
this score alone the conviction could be upheld.[6]

As heretofore stated the publication suggests or incites rebellious

conspiracies or riots and tends
to stir up the people against the
constituted authorities, or to provoke violence from opposition
groups
who may seek to silence the writer.[7] Which is the sum and substance of the offense
under consideration.

The essence of seditious libel may be said to be its immediate

tendency to stir up general
discontent to the pitch of illegal courses;
that is to say to induce people to resort to illegal
methods other than
those provided by the Constitution, in order to repress the evils which
press
upon their minds. [8]

"The idea of violence pervades the whole letter"

says Justice Paredes of the Court of Appeals
"The mere fact that a
person was so disgusted with his "dirty government" to the point of
taking
his own life, is not merely assign of disillusionment; it is a
clear act to arouse its readers a sense
of dissatisfaction against its
duly constituted authorities. The mention made in said letter of the
situation in Central Luzon, the Hukbalahaps, Julio Guillen and the
banditry in Leyte, which are
instances of flagrant and armed attacks
against the law and the duly constituted authorities,
cannot but be
interpreted by the reading public as an indirect justification of the
open defiance
by the Hukbalahaps against the constituted government,
the attempt against the life of President
Roxas and the ruthless
depredations committed by the bandits of Leyte, thus insinuating that a
state of lawlessness, rebellion and anarchy would be very much better
than the
maladministration of said President and his men.

To top it all, the appellant proclaimed to his readers that he

committed suicide because he had
"no power to put under juez de
cuchillo all the Roxas people now in power" Knowing, that the
expression Juez de Cuchillo means to the ordinary layman as the Law of
the Knife, a "summary
and arbitrary execution by the knife", the idea
intended by the appellant to be conveyed was no
other than bloody,
violent and unpeaceful methods to free the government from the
administration of Roxas and his men.

The meaning, intent and effect of the article involves maybe a

question of fact, making the
findings of the court of appeals
conclusive upon us.[9]

Anyway, it is clear that the letter suggested the decapitation or

assassination of all Roxas
officials (at least members of the Cabinet
and a majority of Legislators including the Chief
Executive himself).
And such suggestion clinches the case against appellant.

In 1922 Isaac Perez of Sorsogon while discussing political matters

with several persons in a
public place uttered these words: "Filipinos
must use bolos for cutting off Wood's head—
referring to the then
Governor-General, Leonard Wood. Perez was found guilty of inciting to
sedition in a judgment of this court published in Volume 45 of the
Philippine Reports. That
precedent is undeniably apposite. Note that
the opinion was penned by Mr. Justice Malcolm
probably the member who
has been most outspoken on freedom of speech. Adopting his own
words we
could say, "Here the person maligned by the accused is the Chief
Executive of the
Philippine Islands. His official position, like the
Presidency of the United States and other high
offices, under a
democratic form of government, instead of affording immunity from
promiscuous comment, seems rather to invite abusive attacks. But in
this instance, the attack on
the President passes the furthest bounds
of free speech and common decency. More than a
figure of speech was
intended. There is a seditious tendency in the words used, which could
easily produce disaffection among the people and a state of feeling
incompatible with a
disposition to remain loyal to the Government and
obedient to the laws."

The accused must therefore be found guilty as charged. And there

being no question as to the
legality of the penalty imposed on him, the
decision will be affirmed with costs.

Pablo, Padilla, Montemayor, and Reyes JJ., concur.

[1]"Scurrilous" means low, vulgar, mean, foul (U.S. vs. Strong, 263 Fed.., 789; U.S. vs. Ault,
263 Fed., 800).

[2] U.S. vs. Dorr, 2 Phil., 332.

[3] Liberty of the Press 2nd Ed. p. 371.

[4] People vs. Nabong, 57 Phil., 455.

[5] U. S. vs. Apurado, 7 Phil., 422.

[6]
But we will not rest conviction on this, aware as we are that the
prohibition could be pushed
to the point where it will silence all
criticism against public officials, and thereby infringe the
constitutional freedom of speech. Too much danger that men wull be
prosecuted, simply
because they criticize the power that be.

[7] Terminiello vs. Chicago 337 U. S. Rep. p. 1.

[8]
Peterson, Liberty of the Press, Speech andPublic Workshop, p. 81; note Hale and Benson
Law of the Press, p. 359.

[9]People vs.
Most, 64 N.E. 175, 58 L.R.A. 509. The question whether the words had
the effect
of inciting or counseling disturbance of the peace is often
a question of degree, which in the
U.S. is largely for the jury. this
means it is a question of fact. (Cf. Schenk vs. U.S., 249 U.S. 47,
52.)

Jugo, J., concurs in the result.

DISSENTING

TUASON, J.,

Article 142 of the Revised Penal Code, as amended entitled "Inciting to Sedition", provides:

"The penalty of prision correccional

in its maximum period and a fine not exceeding
2,000 pesos shall be
imposed upon any person who, without taking any direct part in
the
crime of sedition, should incite others to the accomplishment of any of
the acts
which constitute sedition, by means of speeches,
proclamations, writings, emblems,
cartoons, banners, or other
representations tending to the same end, or upon any
person or persons
who shall utter seditious words or speeches, write, publish, or
circulate scurrilous libels against the Government of the United States
or the
 Government of the Commonwealth of the Philippines, or any of the
duly constituted
authorities thereof, or which tend to disturb or
obstruct any lawful officer in
executing the functions of his office,
or which tend to instigate others to cabal and
meet together for
unlawful purposes, or which suggest or incite rebellious
conspiracies
or riots, or which lead or tend to stir up the people against the
lawful
authorities or to disturb the peace of the community, the safety
and order of the
Government, or who shall knowingly conceal such evil
practices."

In the case of U. S. vs.

Dorr, 2 Phil. 332, this Court traced the origin and history of the
predecessor of Article 142 and expounded its meaning. Mr. Justice Ladd,
who wrote the
decision, saids

"Several
allied offenses or modes of committing the same offense are defined in
that
section, viz: (1) The uttering of seditious words or speeches; (2)
the writing,
publishing, or circulating of scurrilous libels against
the Government of the United
States or the Insular Government of the
Philippine Islands; (3) the writing,
publishing or circulating of
libels which tend to disturb or obstruct any lawful officer
in
executing his office; (if) or which tend to instigate others to cabal
or meet together
for unlawful purposes; (5) or which suggest or incite
rebellious conspiracies or riots;
(6) or which tend to stir up the
people against the lawful authorities or to disturb the
peace of the
community, the safety and order of the Government; (7) knowingly
concealing such evil practices."

Referring to case (2) scurrilous libels against the Government of the

United States or the Insular
Government of the Philippine Islands which
the Court said may stand on a somewhat different
footing from the rest
the Court went on to say:

"In the
determination of this question we have encountered great difficulty, by
reason of the almost entire lack of American precedents which might
serve as a
guide in the construction of the law. There are, indeed,
numerous English decisions,
most of them of the eighteenth century, on
the subject of libelous attacks upon the
'Government, the constitution,
or the law generally,1 attacks upon the Houses of
Parliament, the
Cabinet, the Established Church, and other governmental organisms,
but
these decisions are not now accessible to us, and, if they were, they
were made
under such different conditions fan those which prevail at
the present day, and are
founded upon theories of government so foreign
to those which have inspired the
legislation of which the enactment in
question forms a part, that they would probably
afford but little light
in the present inquiry. In England, in the latter part of the
eighteenth century, any 'written censure upon public men for their
conduct as such,'
as well as any written censure 'upon the laws or upon
the institutions of the country,'
would probably . have been regarded
as a libel upon the Government. G. Stephen,
History of the Criminal Law
of England, 348.) This has ceased to be the law in
England, and it is
doubtful whether it was ever the common law of any American
State. 'It
is true that there are ancient dicta to the effect that any publication
tending
to "possess the people with an ill opinion of the Government"
is a seditious libel (per
Holt, C.J., in R. vs. Tuchin, 1704, 5 St. Tr., 532, and ELlenborough, C.J., in R. vs.
Cobbett, 1804, 29 How. St. Tr., 49), but no one would accept that
doctrine now.
Unless the words used directly tend to foment riot or
rebellion or otherwise to
disturb the peace and tranquility of the
Kingdom, the utmost latitude is allowed in
 the discussion of all public
affairs.' (11 Enc. of the Laws of England 450.) Judge
Cooley says
(Const, Lim., 528) : 'The English common law rule which made libels
on
the constitution or the government indictable, as it was administered
by the
courts, seems to unsuited to the condition and circumstances of
the people of
America, and therefore never to have been adopted in the
several States."

After citing the Act

of Congress of July 14, 1798, commonly-and historically known as the
"Sedition Act," and after noting that "the term 'government1 would
appear to be used herein the
abstract sense of the existing political
system, as distinguished from the concrete organisms of
the Government
the Houses of Congress and the Executive which are also specially
mentioned,"
the Court reached the opinion that "this is the (abstract)
sense in which the term is used in the
enactment under consideration."
The Court pointed out that, "while libels upon forms of
government,
unconnected with defamation of individuals, must in the nature of
things be of
uncommon occurrence, the offense is by no means an
imaginary one," and cited a case
(Republica vs. Dennie, 4 Yeates [Pa.], 267) in which the defendant was indicted ' for bringing
into contempt and hatred the independence of the United States, the constitution of this
Commonwealth and of the United States; for exciting popular discontent and dissatisfaction
against the scheme of polity instituted;
for condemning the principles of the Revolution, and
reviling the
characters of the patriots and statesmen; for endangering, subverting,
and totally
destroying the republican constitutions and free governments of the said United States and the
Commonwealth of-Pennsylvania.

In
consonance with the principles laid down, the Court held that the
article published by Dorr, in
which he virulently attacked the policy
of the Civil Commission in appointing Filipinos to
office, did not come
within the purview of the law, although it "may have had the effect of
exciting among certain classes dissatisfaction with the Commission and
its measures." It found
that there was nothing in the article which
could "be regarded as having a tendency to produce
anything like what
may be called dissafection, or, in other words, a state of feeling
incompatible
with a disposition to remain loyal to the Government and
obedient to the laws."

The message which the accused

herein caused to be published with his picture contained no
libel or
criticism against the instituted system of government as distinct from
the administration.
On the contrary, the gist of the, message was that
the author was desperate and was going to kill
himself because many men
in the government were following the practices of absolute and
despotic
rulers in other parts of the world. He wanted President Truman and Mr.
Churchill,
leading exponents of such democratic institutions as are
consecrated in the Philippine
Constitution, to be informed that
President Roxas and others in his administration were
unfaithful to the
tenets of constitutional government. He pointed to the turbulent
situation in
Central Luzon, the rampant banditry in Leyte, the
attempted assassination of President Roxas by
Guillen, etc., not as
examples to be emulated but as the direct outcome of what he claimed
widespread graft and corruption in the Government. He pretended to have
decided to take his
life because he was impotent to remedy or suppress
this deplorable state of affairs, and he was
ashamed of the way the
Government was being conducted. He likened some men in the
government,
whom he did not specify, to Hitler and Mussolini, not that he idolized
those
notorious characters but because, he felt, evil forces that
undermined the ideas and ideals of the
Constitution were at work in our
republic. In short, far from advocating the overthrow or change
of the
present scheme of polity, the article evinced intense feeling of
devotion to the welfare of
the country and its institutions.
President
Roxas was the only official named in the article. But the defendant did
not counsel
violence in his reference to the President and the
unnamed officials. In his statement to the
effect that he was going to
kill himself because he could not kill President Roxas and the men
who
surrounded the Executive, it is not a necessary deduction that he
wished others to do it. Let
it be remembered that the message was
addressed to the writer's "wife" and "children" who, it
turned out,
were imaginary.

At best, the meaning of the sentence is

doubtful and the norm is that, where the defendant's
intention is
ambiguous he should be given the benefit of the doubt. The courts may
not subject
an act or utterance to a microscopic examination in an
endeavor to find in it germs of seditious
purpose. In prosecutions for
sedition utmost caution is called for lest the freedom of expression
be
impaired. Although statutes against sedition have been held not to
violate the constitutional
guaranty to the freedom of expression, the
courts are warned to so construe or interpret them as
not to abridge
that freedom. (33 C.J. l64, citing U. S. vs. Apurado et al.,
7 Phil. 422.) It is
axiomatic that the Constitution is the paramount
law and that legislation has to be adjusted
thereto. Accordingly in the
solution of clashes, which frequently occur, between liberty of free
speech and prosecution for sedition, the criterion, it is submitted,
should be the presence or
absence of real, not imaginary, danger of the
utterance materializing or inciting others to
disloyalty to the
Government and Its laws.

There is no inciting to sedition

unless, according to Mr. Justice Holmes1 theory expressed in
connection
with a similar topic, "the words used are used in such circumstances
and are of such
a nature as to create clear and present danger that
they will bring about the substantive evils that
Congress has a right
to prevent." In the very law punishing inciting to sedition there is
the
requirement that the words alleged to be seditious or libelous lead or tend
to the consummation
of the evils sought to be prevented. Even in the
ordinary offenses of threat and defamation,
words are not taken at face
value, hut their import or gravity is gauged by the circumstances
surrounding each particular case.

The terms "lead" and

"tend" are used in Article 142 of the Revised Penal Code in their
ordinary
signification. Thus understood, lead as a verb means "to draw
or direct by influence" or "to
prevail on," and tend means "to conduce
to an end." (Webster's International Dictionary)

Judged by
these tests, and granting for the present purposes that the defendant
did intend to
incite others to sedition, the article was harmless as
far as the safety of the Government and its
officers was concerned, and
should have been ignored, as many others more serious than this
one
have been. The message, like an evil imagining from which no harm
proceeds except to the
individual himself, was not conducive to the
attainment of the prisoner's aims. If words are "the
keys of
persuasion" and " the triggers of action," the article under
consideration was far from
possessing either of these qualities, taking
into consideration the personality of the man who
wrote it and what he
"did". The reaction of the readers could not have been other than that
the
whole thing was comical if it were not "tragic." The general
reaction, it is fairly safe to say, was
one of regret for a man of
eccentric and unbalanced mind or ridicule and curiosity for a
grotesque
stunt. The witnesses for the Government themselves, some of whom were
constabulary officers stationed at Tagbilaran, stated that upon reading
the article and seeing the
author's picture they Just laughed it off,
"thinking, that this fellow must be crazy." That was akin
to our own
reaction, and there is little or no doubt that it exemplified the
general effect upon the
minds of other readers of the article. It "is
certain that none would commit a rash act upon a
vague suggestion of a
man who hanged himself and whom they had never heard of before,
while
those who had known him, like the constabulary officers above
mentioned, were aware
that the picture was a fake and thought the
subject was a crank.

Attacks more serious, virulent and

inflamatory than the one at bar, by persons well known in
politics and
public life and having influence and large following, have frequently
appeared in
the press or been launched on the platforms. What the
defendant did or said was very tame and
mild by comparison.
Nevertheless, those critics have not been brought to court; and it is
to the
everlasting credit of the administration and, in the long run,
for the good of the Government,
that the parties reviled and the
prosecutors have adopted a tolerant attitude. A well-known
author on
criminal law quoting classical writers on the same subject has truly
said.

"Yet while such is no

doubt the law, prosecutions of this class have recently fallen, in
England as well as in the United States, for several reasons, into
disuse. In the first
place, it is now generally felt that unless
criticism be permitted to penetrate even to
the foundations of
government, revolution rather than reform may result. Time, says
Bacon,
is the greatest of destructives; and truth is to be constantly employed
in
repairing the breaches which time makes. The wise conservative,
therefore, is often
apparently the most destructive radical; as he is
the most prudent repairer who, when
the piers of a bridge are weakened
by a storm, advises that the work of
reconstruction should begin at the
foundation. To prevent the application of
revolutionary criticism to
government is of all modes of government the most
revolutionary. And
closely allied with this position is another, that among countries
used
to freedom libels only begin to bring the state into contempt when they
are
prosecuted by the state as contemptuous. The sedition laws, for
instance, were
among the chief causes of the overthrow of the
administration of John Adams; and
their repeal one of the . chief
causes of the popularity of that of Jefferson, If,
however, seditious
libels are to be prosecuted, it is well to keep in mind the noble
words
of princes from whose edicts the English common law, imbued as it is in
so
many other respects with the spirit of freedom, has much, in
reference to the law of
libel, to learn: 'Imppp. Theodosius, Arcadius
et Honorius, A.A.A. Rufino P. P. Si
quis modestiae nescius et pudoris
ignarus improbo petulantique maledicto nomina
nostra crediderit
lacessenda, ac temulentla turbulentus obtrectator teraporarum
nostrorum
fuerit, eum poenae nolumus subiugari neque durum aliquid nee asperum
sustinere, quoniam, si ex levitate processerit, contemnedum est, si ex
insania.
miseratione dignissimum. si ab injuria. remlttendum. ' " (2
Wharton's Criminal Law;
Section 1947.)

In somewhat parallel vein is the dissent of Mr. Justice Holmes, joined in by Mr. Justice
Brandeis, in U. S. vs. Abraxas, 250 U. S. 621, 629. Said Justice Holmes:

"Persecution
for the expression of opinions seems to me perfectly logical. If you
have no doubt of your premises or your power and want a certain result
with all your
heart you naturally express your wishes in law and sweep
away all opposition. To
allow opposition by speech seems to indicate
that you think the speech impotent, as
when a man says that he has
squared the circle, or that you do not care whole
heartedly for the
result, or that you doubt either your power or your premises. But
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 oy
free trade in ideas—that the best twist
 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. That at any rate is the theory of our Constitution. It is
an experiment, as
all life is an experiment. Every year if not every
day we have to wager our salvation
upon some prophecy based upon
imperfect knowledge. While that experiment is part
of our system I
think that we should be eternally vigilant against attempts to check
the expresssion of opinions that we loathe and believe to be fraught
with death,
unless they so imminently threaten immediate interference
with the lawful and
pressing purposes of the law that an immediate
check is required to save the country.
I regret that I cannot put into
more impressive words my belief that in their
conviction upon this
indictment the defendants were deprived of their rights under
the
Constitution of the United States."

Moreover, the subject of this prosecution does not reveal personal

malice or hatred. Except for
the "Juez de cuchillo" item which, like
words coming from a babe's mouth, did not have the
weight or chance to
sway the listeners, the article was but a statement of grievances
against
official abuses and misgovernment that already were of common
knowledge and which more
influential and responsible speakers and
writers had denounced in terms and ways more
dangerous and
revolutionary.

Paras, C.J., and Feria, J., concur.

218 Phil. 754

EN BANC
G.R. No. L-64261, December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO AND

J.BURGOS MEDIA SERVICES, INC., PETITIONERS, VS. THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER,
PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE
GENERAL, ET AL., RESPONDENTS.

DECISION

ESCOLIN, J.:

Assailed in this petition for certiorari, prohibition and mandamus with preliminary mandatory
and prohibitory injunction is the validity of two[2] search warrants issued on December 7, 1982
by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of
Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon
City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of
the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office
and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. 

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be
issued for the return of the seized articles, and that respondents, "particularly the Chief Legal
Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of
Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors"
be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr.
and the other accused in Criminal Case No. Q-022782 of the Regional Trial Court of Quezon
[1]
City, entitled "People vs. Jose Burgos, Jr. et al."  

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983,
later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. 

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a
writ of preliminary mandatory injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case until final resolution of the
[2]
legality of the seizure of the aforementioned articles, x x x."   With this manifestation, the
prayer for preliminary prohibitory injunction was rendered moot and academic. 
Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
[3]
Court, should have filed a motion to quash said warrants in the court that issued them.   But
this procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised, not to mention the public interest
generated by the search of the "We Forum" offices, which was televised in Channel 7 and
widely publicized in all metropolitan dailies. The existence of this special circumstance justifies
this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr.
[4]
Justice Abad Santos in the case of C. Vda. de Ordoveza vs. Raymundo, "it is always in the
power of the court [Supreme Court] to suspend its rules or to except a particular case from its
operation, whenever the purposes of justice require it x x x." 

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of
more than six[6]   months. 

Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
[5]
entitled to assert it either has abandoned it or declined to assert it.  

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:

"Respondents should not find fault, as they now do [p. 1, Answer, p. 3,

Manifestation] with the fact that the Petition was filed on June 16, 1983, more than
half a year after the petitioners' premises had been raided. 

"The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust other
remedies. The events of the past eleven[11] years had taught them that everything in
this country, from release of public funds to release of detained persons from
custody, has become a matter of executive benevolence or largesse. 

"Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronel asking the return at least of the printing equipment and vehicles.
And after such a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security Command, they were
further encouraged to hope that the latter would yield the desired results. 

"After waiting in vain for five[5] months, petitioners finally decided to come to
Court." [pp. 123-124, Rollo] 

Although the reason given by petitioners may not be flattering to our judicial system, We find
no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them. 

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in Criminal Case No. Q-022872, he is now estopped
from challenging the validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he
pleases with them, within legal bounds. The fact that he has used them as evidence does not and
cannot in any way affect the validity or invalidity of the search warrants assailed in this
petition. 

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question. 

Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted
[6]
constitutional provision as well as Sec. 4, Rule 126 of the Rules of Court.   This objection,
however, may properly be considered moot and academic, as petitioners themselves conceded
during the hearing on August 9, 1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses. 

Search Warrants No. 20-82[a] and No. 20-82lb] were used to search two distinct places: No. 19,
Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82 [b] at
the latter address on the ground that the two search warrants pinpointed only one place where
petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e.,
No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search
Warrant No. 20-82[b] which states: 

"Which have been used, and are being used as instruments and means of committing
the crime of subversion penalized under P.D. 885 as amended and he is keeping and
concealing the same at 19 Road 3, Project 6, Quezon City." 

The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended
for one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue,
[7]
Quezon City, which address appeared in the opening paragraph of the said warrant.  
Obviously, this is the same place that respondent judge had in mind when he issued Warrant No.
20-82 fb]. 

In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held 'that the executing officer's prior knowledge as to the
place intended in the warrant is relevant. This would seem to be especially true where the
executing officer is the affiant on whose affidavit the warrant had issued, and when he knows
that the judge who issued the warrant intended the building described in the affidavit. And it has
also been said that the executing officer may look to the affidavit in the official court file to
[8]
resolve an ambiguity in the warrant as to the place to be searched."

3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles belonging to his co-petitioners Jose Burgos,
Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. 

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be
seized under a search warrant, to wit: 

"SEC. 2. Personal Property to be seized.— A search warrant may be issued for the
search and seizure of the following personal property: 

Property subject of the offense; 

Property stolen or embezzled and other proceeds or fruits of the offense;

and 

Property used or intended to be used as the means of committing an

offense. 

The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control
or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants. 

4. Neither is there merit in petitioners' assertion that real properties were seized underthe
disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery,
receptacles, instruments or implements intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable property. In Davao
[9]
Sawmill Co. vs. Castillo   where this legal provision was invoked, this Court ruled that
machinery which is movable by nature becomes immobilized when placed by the owner of the
tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other
person having only a temporary right, unless such person acted as the agent of the owner. 

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact
bolted to the ground remain movable property susceptible to seizure under a search warrant. 
5. The questioned search warrants were issued by respondent judge upon application of Col.
[10]
Rolando N. Abadilla, Intelligence Officer of the P.C. Metrocom.   The application was
[11]
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango , members
of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982. 

It is contended by petitioners, however, that the above-mentioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: 

"SEC. 3. x x x and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, 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." 

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in
the case at bar, the application and/or its supporting affidavits must contain a specification,
stating with particularity the alleged subversive material he has published or is intending to
publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing equipment and other
paraphernalia, news publications and other documents which were used and are all continuously
being used as a means of committing the offense of subversion punishable under Presidential
[12]
Decree 885, as amended x x x"   is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a rinding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search
warrant and it was a grave error for respondent judge to have done so. 

Equally insufficient as basis for the determination of probable cause is the statement contained
in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered
and collated by our unit clearly shows that the premises above- mentioned and the articles and
things above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire
[13]
Movement, Movement for Free Philippines, and April 6 Movement."  

In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, x x x after examination under oath or affirmation of the complainant and the witnesses he
[14]
may produce;   the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified. In
[15]
Alvarez vs. Court of First Instance,   this Court ruled that "the oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of probable cause." As
couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets
the test of sufficiency established by this Court in Alvarez case. 

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise: 

"1] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters,
cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM' newspaper
and any and all documents, communications, letters and facsimile of prints related to
the 'WE FORUM" newspaper. 

2] Subversive documents, pamphlets, leaflets, books, and other publications to

promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and, 

3] Motor vehicles used in the distribution/circulation of the 'WE FORUM' and other
subversive materials and propaganda, more particularly, 

1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up
colored white with Plate No. NKV 969; 3] A delivery truck with Plate No. NBS
542; 

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong
Silang.' 

[16]
In Stanford vs. State of Texas,   the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Parties of Texas, and the operations of the Communist
Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like
manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant which authorized the
seizure of any ''paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general
[17]
warrant, and therefore invalid. The description of the articles sought to be seized under the
search warrants in question cannot be characterized differently. 

In the Stanford case, the U.S. Supreme Court calls to mind a notable chapter in English history:
the era of disaccord between the Tudor Government and the English Press, when ''officers of the
Crown were given roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan." Reference herein to such historical
episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security. 

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued. 

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
[18]
press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry. 

Respondents would justify the continued sealing of the printing machines on the ground that
they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities x x x in
accordance with implementing rules and regulations as may be issued by the Secretary of
National Defense." It is doubtful, however, if sequestration could validly be effected in view of
the absence of any implementing rules and regulations promulgated by the Minister of National
Defense. 

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus, 

"The President denied a request filed by government prosecutors for sequestration of

the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendaña. 

"On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in the
premises. 

"Cendana said that because of the denial, the newspaper and its equipment remain at
[19]
the disposal of the owners, subject to the discretion of the court."  

That the property seized on December 7, 1982 had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.
S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE
[20] 
FORUM" case. In this reply dated February 11, 1983, Minister Romulo stated:

"2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate theequipment and
[21]
materials it uses."
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20- 82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly
set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is
hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No
costs. 

SO ORDERED. 

Fernando, C.J., Makasiar, Conception Jr., Melencio-Herrera, Pland, Relova, Gutierrez, Jr., De
la Fuente and Cuevas, JJ., concur. 

Teehankee, J., I concur with the main opinion of Mr. Justice Escolin and the concurrence of Mr.
Justice Abad Santos. 

Abad Santos, J., see concurring opinion. 

Aquino, J., took no part.

[1]
  Petition, P.44, Rollo. 
[2]
  Manifestation and Opposition, P.75, Rollo. 

[3]
  Templo vs. Dela Cruz, 60 SCRA 295. 

[4]
  63 Phil. 275. 
[5]
  Tijam vs. Sibonghanoy, 23 SCRA 29. 

[6]
  Sec. 4, Rule 126, Rules of Court provides: 

Sec. 4, Examination of the Applicant.-- The municipal or city judge must, before
issuing the warrant, personally examine on oath or affirmation the complainant and
any witnesses he may produce and take their deposition in writing and attach them to
the record, in addition to any affidavits presented to them. 

[7]
  The Opening paragraph of Search Warrant No. 20-82[b] reads: 

"It appearing to the satisfaction of the undersigned after examination under oath of
Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and
sufficient reason to believe that Jose Burghos, Jr. Publisher-Editor of 'WE FORUM'
with office address at 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, has in his possession and control at said address the following: xxx." 
243 Phil. 1007

EN BANC
G.R. No. 82380, April 29, 1988

AYER PRODUCTIONS PTY. LTD. AND MCELROY & MCELROY FILM

PRODUCTIONS, PETITIONERS, VS. HON. IGNACIO M. CAPULONG
AND JUAN PONCE ENRILE, RESPONDENTS.

G.R. NO. 82398. APRIL 29, 1988]

HAL MCELROY, PETITIONER, VS. HON. IGNACIO M. CAPULONG, IN

HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL
COURT OF MAKATI, BRANCH 134 AND JUAN PONCE ENRILE,
RESPONDENTS.

DECISION

FELICIANO, J.:

Petitioner Hal McElroy, an Australian film maker, and his movie production company,
petitioner Ayer Productions Pty. Ltd. ("Ayer Productions"),[1] envisioned, sometime in 1987, the
filming for commercial viewing and for Philippine and international release, the historic
peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners
discussed this project with local movie producer Lope V. Juban, who suggested that they consult
with the appropriate government agencies and also with General Fidel V. Ramos and Senator
Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie
Television Review and Classification Board as well as the other government agencies consulted.
General Fidel Ramos also signified his approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy, informed private respondent Juan
Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which
is set out below:

"The Four Day Revolution is a six hour mini-series about People Power - a unique
event in modern history - that made possible the peaceful revolution in the
Philippines in 1986.

Faced with the task of dramatising these remarkable events, screenwriter David
Williamson and history Prof. Al McCoy have chosen a 'docu-drama' style and
created [four] fictitious characters to trace the revolution from the death of Senator
Aquino, to the February revolution and the fleeing of Marcos from the country.

 These characters' stories have been woven through the real events to help our huge
international audience understand this extraordinary period in Filipino history.

First, there's Tony O'Neil, an American television journalist working for a major
network. Tony reflects the average American attitude to the Philippines - once a
colony, now the home of crucially important military bases. Although Tony is aware
of the corruption and of Marcos' megalomania, for him, there appears to be no
alternative to Marcos except the Communists.

Next, Angie Fox, a fiery Australian photojournalist. A 'new girl in town', she is
quickly caught up in the events as it becomes clear that the time has come for a
change. Through Angie and her relationship with one of the Reform Army
Movement Colonels (a fictitious character), we follow the developing discontent in
the armed forces. Their dislike for General Ver, their strong loyalty to Defense
Minister Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter and promoter of Cory
Aquino. Ben has two daughters, Celie - a left-wing lawyer who is a secret member
of the New People’s Army, and Eva - a P.R. girl, politically moderate and very much
in love with Tony. Ultimately, she must choose between her love and the revolution.

Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and the intertwining series of events and
characters that triggered these remarkable changes.

Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary
footage filmed during the period which we hope will capture the unique atmosphere
and forces that combined to overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful

plays to his credit ('Don's Party', 'The Club', 'Travelling North') and 11 feature films
('The Year of Living Dangerously', Gallipoli', 'Phar Lap'). Professor McCoy
(University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with David Williamson they have developed a script we
believe accurately depicts the complex issues and events that occurred during the
period.

The six hour mini-series is a McElroy and McElroy co-production with Home Box
Office in America, the Australian Broadcasting Corporation in Australia and Zenith
Productions in the United Kingdom."

The proposed motion picture would be essentially a reenactment of the events that made
possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television
play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with
real events, and utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not
approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that
of any member of his family in any cinema or television production, film or other medium for
advertising or commercial exploitation" and further advised petitioners that "in the production,
airing, showing, distribution or exhibition of said or similar film, no reference whatsoever
(whether written, verbal or visual) should be made to [him] or any member of his family, much
less to any matter purely personal to them."

It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary
Restraining Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati,
docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from
producing the movie "The Four Day Revolution". The complaint alleged that petitioners'
production of the mini-series without private respondent’s consent and over his objection,
constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court
issued ex-parte a Temporary Restraining Order and set for hearing the application for
preliminary injunction.

On 9 March 1988, Hal McElroy filed a Motion to Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-series film would not involve the private life of
Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a
prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been
completed.

In an Order[2] dated 16 March 1988, respondent court issued a writ of Preliminary Injunction
against the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants,

and all persons and entities employed or under contract with them, including actors,
actresses and members of the production staff and crew, as well as all persons and
entities acting on defendants' behalf, to cease and desist from producing and filming
the mini-series entitled "The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu
of plaintiff which nevertheless is based on, or bears remote, substantial or marked
resemblance or similarity to, or is otherwise identifiable with, plaintiff in the
production and filming any similar film or photoplay, until further orders from this
Court, upon plaintiff’s filing of a bond in the amount of P2,000,000.00, to answer for
whatever damages defendants may suffer by reason of the injunction if the Court
should finally decide that plaintiff was not entitled thereto.

xxx xxx xxx."

(Underscoring supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for Certiorari
dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order,
which petition was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitioner Hal McElroy also filed a separate Petition for
Certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March
1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent
was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a
limited Temporary Restraining Order partially enjoining the implementation of the respondent
Judge’s Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and
allowing the petitioners to resume producing and filming those portions of the projected mini-
series which do not make any reference to private respondent or his family or to any fictitious
character based on or bearing substantial resemblance or similarity to or identifiable as private
respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the
main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners'
claim that in producing and filming "The Four Day Revolution", they are exercising their
freedom of speech and of expression protected under our Constitution. Private respondent, upon
the other hand, asserts a right of privacy and claims that the production and filming of the
projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled
to enjoy.

Considering first petitioners' claim to freedom of speech and of expression, the Court would
once more stress that this freedom includes the freedom to film and produce motion pictures and
to exhibit such motion pictures in theaters or to diffuse them through television. In our day and
age, motion pictures are a universally utilized vehicle of communication and medium of
expression. Along with the press, radio and television, motion pictures constitute a principal
medium of mass communication for information, education and entertainment. In Gonzales v.
Katigbak,[3] former Chief Justice Fernando, speaking for the Court, explained:

“1. Motion pictures are important both as a medium for the communication of ideas
and the expression of the artistic impulse. Their effects on the perception by our
people of issues and public officials or public figures as well as the prevailing
cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495
[1942]) is the 'importance of motion pictures as an organ of public opinion lessened
by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There
is no clear dividing line between what involves knowledge and what affords
pleasure. If such a distinction were sustained, there is a diminution of the basic right
to free expression. x x x"[4]
This freedom is available in our country both to locally-owned and to foreign-owned motion
picture companies. Furthermore, the circumstance that the production of motion picture films is
a commercial activity expected to yield monetary profit, is not a disqualification for availing of
freedom of speech and of expression. In our community as in many other countries, media
facilities are owned either by the government or the private sector but the private sector-owned
media facilities commonly require to be sustained by being devoted in whole or in part to
revenue producing activities. Indeed, commercial media constitute the bulk of such facilities
available in our country and hence to exclude commercially owned and operated media from the
exercise of constitutionally protected freedom of speech and of expression can only result in the
drastic contraction of such constitutional liberties in our country.

The counter-balancing claim of private respondent is to a right of privacy. It was demonstrated

sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does
include a right of privacy.[5] It is left to caselaw, however, to mark out the precise scope and
content of this right in differing types of particular situations. The right of privacy or "the right
to be let alone",[6] like the right of free expression, is not an absolute right. A limited intrusion
into a person’s privacy has long been regarded as permissible where that person is a public
figure and the information sought to be elicited from him or to be published about him
constitute matters of a public character.[7] Succinctly put, the right of privacy cannot be invoked
to resist publication and dissemination of matters of public interest.[8] The interest sought to be
protected by the right of privacy is the right to be free from "unwarranted publicity, from the
wrongful publicizing of the private affairs and activities of an individual which are outside the
realm of legitimate public concern".[9]

Lagunzad v. Vda. de Gonzales,[10] on which private respondent relies heavily, recognized a right
to privacy in a context which included a claim to freedom of speech and of expression.
Lagunzad involved a suit for enforcement of a licensing agreement between a motion picture
producer as licensee and the widow and family of the late Moises Padilla as licensors. This
agreement gave the licensee the right to produce a motion picture portraying the life of Moises
Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon,
Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried and convicted.[11]
In affirming the judgment of the lower court enforcing the licensing agreement against the
licensee who had produced the motion picture and exhibited it but refused to pay the stipulated
royalties, the Court, through Mme. Justice Melencio-Herrera, said:

"Neither do we agree with petitioner's submission that the Licensing Agreement is

null and void for lack of, or for having an illegal cause or consideration, while it is
true that petitioner had purchased the rights to the book entitled 'The Moises Padilla
Story,' that did not dispense with the need for prior consent and authority from the
deceased heirs to portray publicly episodes in said deceased's life and in that of his
mother and the members of his family. As held in Schuyler v. Curtis, ([1895], 147 NY
434, 42 NE, 31 LRA 286, 49 Am St Rep671), 'a privilege may be given the
surviving relatives of a deceased person to protect his memory, but the privilege
exists for the benefit of the living, to protect their feelings and to prevent a violation
of their own rights in the character and memory of the deceased.'
Petitioner's averment that private respondent did not have any property right over the life of
Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure
ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a
person's privacy to disseminate public information does not extend to a fictional or novelized
representation of a person, no matter how public a figure he or she may be (Garner v. Triangle
Publications, DCNY, 97 F. Supp., 564, 549 [1951]). In the case at bar, while it is true that
petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that
he included a little romance in the film because without it, it would be a drab story of torture
and brutality."[12]

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims
to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed,
in the name of freedom of speech and expression, a right to produce a motion picture biography
at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-
agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court
said:

Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement infringes
on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises
Padilla without prior restraint. The right of freedom of expression, indeed, occupies a preferred
position in the 'hierarchy of civil liberties' (Philippine Blooming Mills Employees Organization
v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without
limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]:

xxxxxxxxx

The prevailing doctrine is that the clear and present danger rule is such a limitation. Another
criterion for permissible limitation on freedom of speech and of the press, which includes such
vehicles of the mass media as radio, television and the movies, is the 'balancing-of-interests test'
(Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle
'requires a court to take conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation' (Separate Opinion of the late Chief Justice
Castro in Gonzales v. Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and
the right of freedom of expression invoked by petitioner. Taking into account the interplay of
those interests, we hold that under the particular circumstances presented, and considering the
obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of freedom of expression are
reached when expression touches upon matters of essentially private concern."[13]

Whether the "balancing of interests test" or the "clear and present danger test" be applied in
respect of the instant Petitions, the Court believes that a different conclusion must here be
reached: The production and filming by petitioners of the projected motion picture "The Four
Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion
upon private respondent's "right of privacy".
1. It may be observed at the outset that what is involved in the instant case is a
prior and direct restraint on the part of the respondent Judge upon the exercise
of speech and of expression by petitioners. The respondent Judge has
restrained petitioners from filming and producing the entire proposed motion
picture. It is important to note that in Lagunzad, there was no prior restraint of
any kind imposed upon the movie producer who in fact completed and
exhibited the film biography of Moises Padilla. Because of the preferred
character of the constitutional rights of freedom of speech and of expression, a
weighty presumption of invalidity vitiates measures of prior restraint upon the
exercise of such freedoms.[14] The invalidity of a measure of prior restraint
does not, of course, mean that no subsequent liability may lawfully be imposed
upon a person claiming to exercise such constitutional freedoms. The
respondent Judge should have stayed his hand, instead of issuing an ex-parte
Temporary Restraining Order one day after filing of a complaint by the private
respondent and issuing a Preliminary Injunction twenty (20) days later; for the
projected motion picture was as yet uncompleted and hence not exhibited to
any audience. Neither private respondent nor the respondent trial Judge knew
what the completed film would precisely look like. There was, in other words,
no "clear and present danger" of any violation of any right to privacy that
private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody
change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the train of events which led up to that dénouement.
Clearly, such subject matter is one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The subject thus relates to a highly
critical stage in the history of this country and as such, must be regarded as
having passed into the public domain and as an appropriate subject for speech
and expression and coverage by any form of mass media. The subject matter,
as set out in the synopsis provided by the petitioners and quoted above, does
not relate to the individual life and certainly not to the private life of private
respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story
of Moises Padilla necessarily including at least his immediate family, what we
have here is not a film biography, more or less fictionalized, of private
respondent Ponce Enrile. "The Four Day Revolution" is not principally about,
nor is it focused upon, the man Juan Ponce Enrile; but it is compelled, if it is to
be historical, to refer to the role played by Juan Ponce Enrile in the
precipitating and the constituent events of the change of government in
February 1986.

3. The extent of the intrusion upon the life of private respondent Juan Ponce
Enrile that would be entailed by the production and exhibition of "The Four
Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be
generally described as such intrusion as is reasonably necessary to keep that
film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the
 private life of private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public
concern, that petitioners propose to film were taking place, private respondent
was what Profs. Prosser and Keeton have referred to as a "public figure":

"A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this
category are those who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainer. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their right of
privacy. Three reasons were given, more or less indiscriminately, in the decisions:
that they had sought publicity and consented to it, and so could not complain when
they received it; that their personalities and their affairs had already become public,
and could no longer be regarded as their own private business; and that the press
had a privilege, under the Constitution, to inform the public about those who have
become legitimate matters of public interest. On one or another of these grounds,
and sometimes all, it was held that there was no liability when they were given
additional publicity, as to matters legitimately within the scope of the public interest
they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was
held to arise out of the desire and the right of the public to know what is going on in
the world, and the freedom of the press and other agencies of information to tell it.
'News' includes all events and items of information which are out of the ordinary
humdrum routine, and which have ‘that indefinable quality of information which
arouses public attention.’ To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definition
of news, as a glance at any morning newspaper will sufficiently indicate. It includes
homicide and other crimes, arrests and police raides, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited to the
dissemination of news in the sense of current events. It extended also to information
or education, or even entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human activity in general, as
well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of
 censorship over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt."[15]

Private respondent is a "public figure" precisely because, inter alia, of his participation as a
principal actor in the culminating events of the change of government in February 1986.
Because his participation therein was major in character, a film reenactment of the peaceful
revolution that fails to make reference to the role played by private respondent would be grossly
unhistorical. The right of privacy of a “public figure” is necessarily narrower than that of an
ordinary citizen. Private respondent has not retired into the seclusion of simple private
citizenship. He continues to be a “public figure”. After a successful political campaign during
which his participation in the EDSA Revolution was directly or indirectly referred to in the
press, radio and television, he sits in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the
constitutional freedom of speech and of expression and the right of privacy,
may be marked out in terms of a requirement that the proposed motion picture
must be fairly truthful and historical in its presentation of events. There must,
in other words, be no knowing or reckless disregard of truth in depicting the
participation of private respondent in the EDSA Revolution.[16] There must,
further, be no presentation of the private life of the unwilling private
respondent and certainly no revelation of intimate or embarrassing personal
facts.[17] The proposed motion picture should not enter into what Mme. Justice
Melencio-Herrera in Lagunzad referred to as “matters of essentially private
concern”.[18] To the extent that “The Four Day Revolution” limits itself in
portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the
EDSA Revolution, the intrusion into private respondent’s privacy cannot be
regarded as unreasonable and actionable. Such portrayal may be carried out
even without a license from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a
Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled “Gregorio B.
Honasan vs. Ayer Productions Pty. Ltd., McElroy and McElroy Film Productions, Hal McElroy,
Lope Juban and PMP Motion for Pictures Production” enjoining him and his production
company from further filming any scene of the projected mini-series film. Petitioner alleged that
Honasan’s complaint was a “scissors and paste” pleading, cut out straight from the complaint of
private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a
separate Manifestation dated 4 April 1988, brought to the attention of the Court the same
information given by petitioner Hal McElroy, reiterating that the complaint of Gregorio B.
Honasan was substantially identical to that filed by private respondent herein and stating that in
refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom
counsel for Gregorio Honasan are apparently associated, deliberately engaged in “forum
shopping”.

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the “slight
similarity” between private respondent’s complaint and that of Honasan in the construction of
their legal basis of the right to privacy as a component of the cause of action is understandable
considering that court pleadings are public records; that private respondent’s cause of action for
invasion of privacy is separate and distinct from that of Honasan’s, although they arose from the
same tortious act of petitioners; that the rule on permissive joinder of parties is not mandatory
and that, the cited cases on “forum shopping” were not in point because the parties here and
those in Civil Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the
question of whether or not the lawyers of private respondent Ponce Enrile have engaged in
“forum shopping”. It is, however, important to dispose of the complaint filed by former Colonel
Honasan who, having refused to subject himself to the legal processes of the Republic and
having become once again a fugitive from justice, must be deemed to have forfeited any right he
might have had to protect his privacy through court processes.

WHEREFORE,

a)
the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated
16 March 1988 of respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge’s Order of 16 March 1988
and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April

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

No pronouncement as to costs.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, and Griño-Aquino, JJ., concur.

[1]On 7 April 1988, petitioners in G.R. No. 82380 asked for deletion of "McElroy and McElroy
Film Productions" as party petitioner stating that it was not a separate company but merely a
corporate tradename used by Ayer Productions. "McElroy and McElroy Film Productions" will
therefore be disregarded in this Decision.

1. ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES BEFORE

RESORT TO COURTS OF LAW MAY BE ALLOWED; EXCEPTIONS. — A settled principles in
administrative law is that before a party can be allowed to resort to the courts, he is
expected to have exhausted all means of administrative redress available under the
law. The courts for reasons of law, comity and convenience will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of administrative remedies
is subject to settled exceptions, among which is when only a question of law is
involved.

2. CONSTITUTIONAL LAW; RIGHT OF ACCESS TO INFORMATION; EFFECT OF DENIAL

THEREOF. — The cornerstone of this republican system of government is delegation of
power by the people to the State. In this system, governmental agencies and
institutions operate within the limits of the authority conferred by the people. Denied
access to information on the inner workings of government, the citizenry can become
prey to the whims and caprices of those to whom the power had been delegated. The
postulate of public office as a public trust, institutionalized in the Constitution (in Art.
XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be
mere empty words if access to such information of public concern is denied, except
under limitations prescribed by implementing legislation adopted pursuant to the
Constitution.

3. NOT RESTRICTED BY THE EXERCISE OF THE FREEDOM OF SPEECH AND OF THE

PRESS. — The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information is merely an
adjunct of and therefore restricted in application by the exercise of the freedoms of
speech and of the press. Far from it. The right to information goes hand-in-hand with
the constitutional policies of full public disclosure and honesty in the public service. It is
meant to enhance the widening role of the citizenry in governmental decision-making
as well in checking abuse in government.

4. NOT ABSOLUTE. — Like all the constitutional guarantees, the right to information is
not absolute. The people’s right to information is limited to "matters of public concern",
and is further "subject to such limitations as may be provided by law." Similarly, the
State’s policy of full disclosure is limited to "transactions involving public interest", and
is "subject to reasonable conditions prescribed by law." cralaw virtua1aw library

5. RIGHT OF PRIVACY; CANNOT BE INVOKED BY A JURIDICAL ENTITY; RIGHT IS

PURELY PERSONAL IN NATURE. — When the information requested from the
government intrudes into the privacy of a citizen, a potential conflict between the rights
to information and to privacy may arise. The right to privacy belongs to the individual in
his private capacity, and not to public and governmental agencies like the GSIS. A
corporation has no right to privacy since the entire basis of the right to privacy is injury
to the feelings and sensibilities of the party and a corporation would have no such
ground for relief. Neither can the GSIS through its General Manager, the respondent,
invoke the right to privacy of its borrowers. The right is purely personal in nature.
6. RIGHT OF ACCESS TO INFORMATION; GOVERNMENT AGENCY PERFORMING
PROPRIETARY FUNCTIONS, NOT EXCLUDED FROM THE COVERAGE. — The government,
whether carrying out its sovereign attributes or running some business, discharges the
same function of service to the people. Consequently, that the GSIS, in granting the
loans, was exercising a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to information.

7. LIMITATION. — The consideration in guaranting access to information on matters of

public concern does not however, accord to citizen the right to compel custodian of
public records to prepare lists, abstracts, summaries and the like in their desire to
acquire such information.

8. REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; REQUISITES FOR ISSUANCE

OF WRIT. — It must be stressed that it is essential for a writ of mandamus to issue that
the applicant has a well-defined, clear and certain legal right to the thing demanded
and that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear and
specific.
252 Phil. 264

EN BANC
G.R. No. 74930, February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL

CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN
GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY
LAPID, ROMMEL CORRO AND ROLANDO FADUL, PETITIONERS,
VS. FELICIANO BELMONTE, JR., RESPONDENT.

DECISION

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their
right to information and pray that respondent be directed:

(a)   to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos;
and/or

(b)   to furnish petitioners with certified true copies of the documents evidencing their respective
loans; and/or

(c)   to allow petitioners access to the public records for the subject information.  (Petition, pp.
4-5; paragraphing supplied.)

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following
letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager

Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be
furnished with the list of names of the opposition members of (the) Batasang Pambansa who
were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. 
We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs.  Likewise, may
we be furnished with the certified true copies of the documents evidencing their loan.  Expenses
connection herewith shall be borne by us.
If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of
the present regime:

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, shall be afforded the citizen subject to such
limitation as may be provided, by law.  (Art. IV, Sec. 6)

We trust that within five (5) days from receipt hereof we will receive your favorable response on
the matter.

Very truly yours,

   

(Sgd.) RICARDO C.
 
VALMONTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo
C. Valmonte
108 E. Benin Street

Caloocan City

Dear Companero:

Possibly because he must have thought that it contained serious legal implications, President &
General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of
June 4, 1986 requesting a list of "the opposition members of Batasang Pambansa who were able
to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos."

My opinion in this regard is that a confidential relationship exists between the GSIS and all
those who borrow from it, whoever they may be; that the GSIS has a duty to its customers to
preserve this confidentiality; and that it would not be proper for the GSIS to breach this
confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial
institution.  I regret very much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel

[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government Service and
Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent
another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves
free to do whatever action necessary within the premises to pursue our desired objective in
pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of
the defunct interim and regular Batasang Pambansa, including ten (10) opposition members,
were granted housing loans by the GSIS [Rollo, p. 41]

Separate comments were filed by respondent Belmonte and the Solicitor General.  After
petitioners filed a consolidated reply, the petition was given due course and the parties were
required to file their memoranda.  The parties having complied, the case was deemed submitted
for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus,
among which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of
Trustees of the GSIS.  Petitioners, however, did not seek relief from the GSIS Board of
Trustees.  It is therefore asserted that since administrative remedies were not exhausted, then
petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not
they are entitled to the documents sought, by virtue of their constitutional right to information. 
Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion
of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort
to the courts, he is expected to have exhausted all means of administrative redress available
under the law.  The courts for reasons of law, comity and convenience will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors committed in the
administrative forum.  However, the principle of exhaustion of administrative remedies is
subject to settled exceptions, among which is when only a question of law is involved [Pascual
v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July
30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA
359.] The issue raised by petitioners, which requires the interpretation of the scope of the
constitutional right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. 
Thus, the exception of this case from the application of the general rule on exhaustion of
administrative remedies is warranted.  Having disposed of this procedural issue, We now
address ourselves to the issue of whether or not mandamus lies to compel respondent to perform
the acts sought by petitioners to be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be done, both of which
involve the issue of whether or not petitioners are entitled to access to the documents evidencing
loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information.  In Tanada v. Tuvera, G.R. No. 63915, April 24, 1985, 136
SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May
29, 1987, 150 SCRA 530, the Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies concerned to act as prayed for
by the petitioners.

The pertinent provision under the 1987 Constitution is Art. III, Sec. 7 which states:

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.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6
of which provided:

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, shall be afforded the citizen subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought
and data relative to them, and the free exchange of ideas and discussion of issues thereon, is
vital to the democratic government envisioned under our Constitution.  The cornerstone of this
republican system of government is delegation of power by the people to the State.  In this
system, governmental agencies and institutions operate within the limits of the authority
conferred by the people.  Denied access to information on the inner workings of government,
the citizenry can become prey to the whims and caprices of those to whom the power had been
delegated.  The postulate of public office as a public trust, institutionalized in the Constitution
(in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be
mere empty words if access to such information of public concern is denied, except under
limitations prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media.  As such, they have both the right to gather and the
obligation to check the accuracy of information they disseminate.  For them, the freedom of the
press and of speech is not only critical, but vital to the exercise of their professions.  The right of
access to information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information.  For 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.
The right to information is an essential premise of a meaningful right to speech and expression. 
But this is not to say that the right to information is merely an adjunct of and therefore restricted
in application by the exercise of the freedoms of speech, and of the press.  Far from it.  The right
to information goes hand-in-hand with the constitutional policies of full public disclosure* and
honesty in the public service.** It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute.  As stated in
Legaspi, the people's right to information is limited to "matters of public concern", and is further
"subject to such limitations as may be provided by law." Similarly, the State's policy of full
disclosure is limited to "transactions involving public interest", and is "subject to reasonable
conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public
interest" or "public concern", and is not exempted by law from the operation of the
constitutional guarantee [Legaspi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public
concern." As observed in Legaspi:

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.  [Ibid. at p. 541.]

In the Tanada case the public concern deemed covered by the constitutional right to information
was the need for adequate notice to the public of the various laws which are to regulate the
actions and conduct of citizens.  In Legaspi, it was the "legitimate concern of citizens to ensure
that government positions requiring civil service eligibility occupied only by persons who are
eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of
the Betasang Pambansa belonging to the opposition were able to secure "clean" loans from the
GSIS immediately before the February 7, 1986 election through the intercession of the former
First Lady, Mrs. Imelda R. Marcos.

The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter.  Undeniably, its funds
assume a public character.  More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the
Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay
the contributions, premiums, interest and other amounts payable to GSIS by the government, as
employer, as well as the obligations which the Republic of the Philippines assumes or
guarantees to pay.  Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations.  Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No.
186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds
administered by the System" (Second Whereas Clause, P.D. No. 1146.) Consequently, as
respondent himself admits, the GSIS "is not supposed to grant ‘clean loans’." [Comment, p. 8.)
It is therefore the legitimate concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that accrue to the insured government
employees.  Moreover, the supposed borrowers were Members of the defunct Batasang
Pambansa who themselves appropriated funds for GSIS and were therefore expected to be the
first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that all
transactions were above board.

In sum, the pubic nature of the loanable funds of the GSIS and the public office held by the
alleged borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those excluded by
law.

Respondent maintains  that a confidential relationship exists between the GSIS and its
borrowers.  It is argued that a policy of confidentiality restricts the indiscriminate dissemination
of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as
regards the documents subject of this petition.  His position is apparently based merely on
considerations of policy.  The judiciary does not settle policy issues.  The Court can only
declare what the law is, and not what the law should be.  Under our system of government,
policy issues are within the domain of the political branches of the government, and of the
people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by
the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS
must be deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected.  In the landmark case of
Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424] this Court, speaking through then Mr.
Justice Fernando, stated:

. . . 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 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 difference between a democratic and
totalitarian society.”[at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise.  However, the
competing interests of these rights need not be resolved in this case.  Apparent from the above-
quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in
his private capacity, and not to public and governmental agencies, like the GSIS.  Moreover, the
right cannot be invoked by juridical entities like the GSIS.  As held in the case of Vassar
College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in
its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities
of the party and a corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy
of its borrowers.  The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co.,
121 Mich 372, 80 N.W. 285, 46 L.R.A. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E.
22, 31 L.R.A. 286 (1895)], and hence may be invoked only by the person whose privacy is
claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may
not succeed if they choose to invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been granted.  It cannot be denied that
because of the interest they generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public scrutiny (cf. Ayer
Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen
v. Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are
private in nature and hence, are not covered by the Constitutional right to information on
matters of public concern which guarantees "(a)ccess to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary
functions, are outside the coverage of the people's right of access to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional policy of full
public disclosure and the right to information which is applicable only to "official" transactions.

First of all, the "constituent - ministrant" dichotomy characterizing government function has
long been repudiated.  In ACCFA v. Confederation of Unions and Government Corporations
and Offices G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court
said that the government, whether carrying out its sovereign attributes or running some
business, discharges the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would
not justify the exclusion of the transactions from the coverage and scope of the right to
information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within the
coverage of the State policy of full public disclosure is manifest from the records of the
proceedings:

xxx                               xxx                              xxx

THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized.

MR. SUAREZ.    Thank you.  May I ask the Gentleman a few questions?

MR. OPLE.   Very gladly.

MR. SUAREZ.      Thank you.

When we declare "a policy of full public disclosure of all its transactions" - referring to the
transactions of the State -and when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of the government . . . .

MR. OPLE.   Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ.  Including government-owned and controlled corporations.

MR. OPLE.   That is correct, Mr. Presiding Officer.

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.  [V Record of the Constitutional Commission        24-25.]

(Underscoring supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the
Court, are nevertheless persuasive, and considering further that government-owned and
controlled corporations, whether performing proprietary or governmental functions are
accountable to the people, the Court is convinced that transactions entered into by the GSIS, a
government-controlled corporation created by special legislation are within the ambit of the
people's right to be informed pursuant to the constitutional policy of transparency in
government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours
of examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right
of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.]  The petition, as to
the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to
furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel custodians
of official records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a
well-defined, clear and certain legal right to the thing demanded and that it is the imperative
duty of defendant to perform the act required.  The corresponding duty of the respondent to
perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768,
November 29, 1968, 126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no duty on
the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents
and records evidencing loans granted to Members of the former Batasang Pambansa, as
petitioners may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortez, Griño-Aquino, Medialdea, and Regalado, JJ., concur.

Cruz, J., see concurrence.

* Art. 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.

** Art XI. Sec. 1. Public office is a public trust.  Public officers 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.

The following provisions of the 1987 Constitution are further indicative of the policy of
162 Phil. 868

SECOND DIVISION
[ Adm. Matter No. 1120-MJ, May 05, 1976

DOMINADOR C. BALDOZA, COMPLAINANT, VS. HON. JUDGE

RODOLFO B. DIMAANO, RESPONDENT.

RESOLUTION

ANTONIO, J.:

In a verified letter-complaint dated September 9, 1975, the Municipal Secretary of Taal,

Batangas, charges Municipal Judge Rodolfo B. Dimaano, of the same municipality, with abuse
of authority in refusing to allow employees of the Municipal Mayor to examine the criminal
docket records of the Municipal Court to secure data in connection with their contemplated
report on the peace and order conditions of the said municipality. Respondent, in answer to the
complaint, stated that there has never been an intention to refuse access to official court records;
that although court records are among public documents open to inspection not only by the
parties directly involved but also by other persons who have legitimate interest to such
inspection, yet the same is always subject to reasonable regulation as to who, when, where and
how they may be inspected. He further asserted that a court has unquestionably the power to
prevent an improper use or inspection of its records and the furnishing of copies therefrom may
be refused where the person requesting is not motivated by a serious and legitimate interest but
acts out of whim or fancy or mere curiosity or to gratify private spite or to promote public
scandal.

In his Answer, the respondent significantly observed: 

"Restrictions are imposed by the Court for fear of an abuse in the exercise of the
right. For fear that the dirty hands of partisan politics might again be at play. Some
of the cases filed and decided by the Court after the declaration of Martial Law and
years after the election still bore the stigma of partisan politics as shown in the
affidavits and testimonies of witnesses. 

"Without casting aspersion on any particular individual, it is worth mentioning, that

the padlocks of the door of the Court has recently been tampered by inserting papers
and matchsticks. 

"Under the circumstances, to allow an indiscriminate and unlimited exercise of the

right to free access, might do more harm than good to the citizenry of Taal. Disorder
and chaos might result defeating the very essence of their request. The undersigned
is just as interested as Mr. Baldoza in the welfare of the community and the
preservation of our democratic principles. 
 "Be that as it may, a request of this magnitude cannot be immediately granted
without adequate deliberation and upon advisement, especially so in this case where
the undersigned doubts the propriety of such request. Hence, it is believed that
authority should first be secured from the Supreme Court, through the Executive
Judge, for the formulation of guidelines and policies on this matter."

The case was thereupon referred to Judge Francisco Mat. Riodique for investigation and report.
At the preliminary hearing on October 16, 1975, Taal Mayor Corazon A. Cañiza filed a motion
to dismiss the complaint to preserve harmony and cooperation among officers in the same
municipality. This motion was denied by the Investigating Judge, but after formal investigation,
he recommended the exoneration of respondent. Pertinent portion of his report reads as follows: 

"* * * When this case was heard, complainant Dominador Baldoza informed the
Court that he is aware of the motion to dismiss filed by Mayor Corazon A. Cañiza
and that he is in conformity with the dismissal of the administrative charge against
Judge Rodolfo Dimaano. The Court asked him if he could prove his case and he said
he can. So, the Court denied his oral motion to dismiss and required him to present
his evidence. Complainant only manifested to the Court that he has no oral evidence.
The only evidence he has are the exchanged communication which were all in
writing and attached to the record between him and the respondent. The Court asked
the respondent what he has to say on the documentary evidence of the complainant.
He manifested that all his answers to the complaint are all embodied in his answers
filed with the Court. 

"A careful perusal, scrutiny, and study of the communications between the
complainant and the respondent, together with the answers filed by the latter, reveal
that there is no showing of abuse of authority on the part of the respondent. The
respondent allowed the complainant to open and view the docket books of the
respondent under certain conditions and under his control and supervision.
Complainant admitted that he was aware of the rules and conditions imposed by the
respondent when he went to his office to view his docket books for the purpose
mentioned in his communication. He also agreed that he is amenable to such rules
and conditions which the respondent may impose. Under these conditions, therefore,
the Court finds that the respondent has not committed any abuse of authority. 

"The complainant was warned to be more cautious in filing any administrative

charge against any public official especially, members of the judiciary, considering
that an administrative charge against a member of the judiciary may expose the latter
to public ridicule and scandal thereby minimizing if not eradicating public trust and
confidence."

After a careful evaluation of the recommendation, We find that the respondent did not act
arbitrarily in the premise. As found by the Investigating Judge, the respondent allowed the
complainant to open and view the docket books of respondent under certain conditions and
under his command and supervision. It has not been shown that the rules and conditions
imposed by the respondent were unreasonable. The access to public records is predicated on the
right of the people to acquire information on matters of public concern. Undoubtedly in a
democracy, the public has a legitimate interest in matters of social and political significance. In
an earlier case,[1]  this Court held that mandamus would lie to compel the Secretary of Justice
and the Register of Deeds to examine the records of the latter office. Predicating the right to
examine the records on statutory provisions, and to a certain degree by general principles of
democratic institutions, this Court stated that while the Register of Deeds has discretion to
exercise as to the manner in which persons desiring to inspect, examine or copy the records in
his office may exercise their rights, such power does not carry with it authority to prohibit.
Citing with approval People ex rel. Title Guarantee & T. Co. vs. Railly,[2] this Court said: 

"'The subject is necessarily committed, to a great degree, to his (register of deeds')

discretion as to how much of the conveniences of the office are required to be
preserved for the accommodation of these persons. It is not his duty to permit the
office to be thronged needlessly with persons examining its books of papers, but it is
his duty to regulate, govern, and control his office in such a manner as to permit the
statutory advantages to be enjoyed by other persons not employed by him as largely
and extensibly as that consistently can be done * * *. What the law expects and
requires from him is the exercise of an unbiased and impartial judgment, by which
all persons resorting to the office, under legal authority, and conducting themselves
in an orderly manner, shall be secured their lawful rights and privileges, and that a
corporation formed in the manner in which the relator has been, shall be permitted to
obtain all the information either by searches, abstracts, or copies, that the law has
entitled it to obtain.' 

"Except, perhaps, when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration
officers to concern themselves with the motives, reasons, and objects of the person
seeking access to the records. It is not their prerogative to see that the information
which the records contain is not flaunted before public gaze, or that scandal is not
made of it. If it be wrong to publish the contents of the records, it is the legislature
and not the officials having custody thereof which is called upon to devise a remedy.
As to the moral or material injury which the publication might inflict on other
parties, that is the publisher's responsibility and lookout. The publication is made
subject to the consequences of the law."

The concurring opinion of Justice Briones predicated such right not on statutory grounds merely
but on the constitutional right of the press to have access to information as the essence of press
freedom.[3]

The New Constitution now expressly recognizes that the people are entitled to information on
matters of public concern and thus are expressly granted access to official records, as well as
documents of official acts, or transactions, or decisions, subject to such limitations imposed by
law.[4]  The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception by the
public of the nation's problems, nor a meaningful democratic decision-making if they are denied
access to information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the
flow of such information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases."[5]  However, restrictions on
access to certain records may be imposed by law. Thus, access restrictions imposed to control
civil insurrection have been permitted upon a showing of immediate and impending danger that
renders ordinary means of control inadequate to maintain order.[6]

Wherefore, the case against respondent is hereby dismissed.

Fernando, Acting C.J., Barredo, Aquino, and Martin, JJ., concur.

Concepcion, Jr., J., is on leave.

Martin, J., was designated to sit in the Second Division.

[1] Sabido vs. Ozaeta, 80 Phil. 383 (1948).

[2] (1886), 38 Hun (N.Y.) 429.

[3] "Se dice, sin embargo, que esa prohibicion nada tiene que ver con la libertad de imprenta.
Pero pregunto: de quele sirve a la prensa la libertad si, por otro lado, se le niegan los
instrumentos para ejercer esa libertad, se le cierran las fuentes publicias de informacion —
fuentes que son de vida o muerte para la prensa, pues de ellas mismas dimana y fluye el jugo
esencial de su existencia?" (Sabido vs. Ozaeta, supra p. 394.)

[4] Article IV, Section 6, New Constitution.

[5] 87 Harvard Law Review 1505.

[6] Ibid., pp. 1518-1519.

158 Phil. 60

EN BANC
G.R. No. L-25246, September 12, 1974

BENJAMIN VICTORIANO, PLAINTIFF AND APPELLEE, VS.

ELIZALDE ROPE WORKERS' UNION
AND ELIZALDE ROPE
FACTORY, INC., DEFENDANTS, ELIZALDE ROPE WORKERS' UNION,
DEFENDANT AND APPELLANT.

DECISION

ZALDIVAR, J.:

Appeal to this Court on purely questions of law from the decision of the Court of First Instance
of Manila in its Civil Case No. 58894.

The undisputed facts that spawned the instant case follow:

Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known
as the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory Inc. (hereinafter
referred to as Company) since 1958.  As such employee, he was a member of the Elizalde Rope
Workers' Union (hereinafter referred to as Union) which had with the Company a collective
bargaining agreement containing a closed shop provision which reads as follows:

"Membership in the Union shall be required as a condition of employment for all

permanent employees workers covered by this Agreement."

The collective bargaining agreement expired on March 3, 1964 but was renewed the following
day, March 4, 1964.

Under Section 4 (a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic
Act No. 3350, the employer was not precluded "from making an agreement with a labor
organization to require as a condition of employment membership therein, if such labor
organization is the representative of the employees." On June 18, 1961, however, Republic Act
No. 3350 was enacted, introducing an amendment to paragraph (4) subsection (a) of section 4 of
Republic Act No. 875, as follows: . . "but such agreement shall not cover members of any
religious sects which prohibit affiliation of their members in any such labor organization".

Being a member of a religious sect that prohibits the affiliation of its members with any labor
organization, Appellee presented his resignation to appellant Union in 1962, and when no action
was taken thereon, he reiterated his resignation on September 3, 1974.  Thereupon, the Union
wrote a formal letter to the Company asking the latter to separate Appellee from the service in
view of the fact that he was resigning from the Union as a member.  The management of the
Company in turn notified Appellee and his counsel that unless the Appellee could achieve a
satisfactory arrangement with the Union, the Company would be constrained to dismiss him
from the service.  This prompted Appellee to file an action for injunction, docketed as Civil
Case No. 58894 in the Court of First Instance of Manila to enjoin the Company and the Union
from dismissing Appellee.[1] In its answer, the Union invoked the "union security clause" of the
collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and
contended that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875,
Sections 24 and 9 (d) and (e).[2] Upon the facts agreed upon by the parties during the pre-trial
conference, the Court a quo rendered its decision on August 26, 1965, the dispositive portion of
which reads:

"IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant

Elizalde Rope Factory, Inc. from dismissing the plaintiff from his present
employment and sentencing the defendant Elizalde Rope Workers' Union to pay the
plaintiff P500 for attorney's fees and the costs of this action."[3]

From this decision, the Union appealed directly to this Court on purely questions of law,
assigning the following errors:

"I.       That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.

"II.      That the lower court erred when it sentenced appellant herein to pay plaintiff
the sum of P500 as attorney's fees and the cost thereof."

In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contended,
firstly, that the Act infringes on the fundamental right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that 'membership in a labor organization is banned to all
those belonging to such religious sect prohibiting affiliation with any labor organization'",[4]
"prohibits all the members of a given religious sect from joining any labor union if such sect
prohibits affiliations of their members thereto";[5] and, consequently, deprives said members of
their constitutional right to form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935
Constitution.[6]

Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the
obligation of contracts in that, while the Union is obliged to comply with its collective
bargaining agreement containing a "closed shop provision," the Act relieves the employer from
its reciprocal obligation of cooperating in the maintenance of union membership as a condition
of employment; and that said Act, furthermore, impairs the Union's rights as it deprives the
union of dues from members who, under the Act, are relieved from the obligation to continue as
such members.[7]

Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious
sects which ban their members from joining labor unions, in violation of Article III, Section 1
(7) of the 1935 Constitution; and while said Act unduly protects certain religious sects, it leaves
no rights or protection to labor organizations.[8]

Fourthly, Republic Act No. 3350, asserted the Union violates the constitutional provision that
"no religious test shall be required for the exercise of a civil right," in that the laborer's exercise
of his civil right to join associations for purposes not contrary to law has to be determined under
the Act by his affiliation with a religious sect; that conversely, if a worker has to sever his
religious connection with a sect that prohibits membership in a labor organization in order to be
able to join a labor organization, said Act  would violate religious freedom.[9]

Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws"
clause of the Constitution, it being a discriminatory legislation, inasmuch as by exempting from
the operation of closed shop agreement the members of the "Iglesia ni Cristo", it has granted
said members undue advantages over their fellow workers, for while the Act exempts them from
union obligation and liability, it nevertheless entitles them at the same time to the enjoyment of
all concessions, benefits and other emoluments that the union might secure from the employer.
[10]

Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision
regarding the promotion of social justice.[11]

Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining
agreement cannot be considered violative of religious freedom, as to call for the amendment
introduced by Republic Act No. 3350;[12] and that unless Republic Act No. 3350 is declared
unconstitutional, trade unionism in this country would be wiped out as employers would prefer
to hire or employ members of the Iglesia ni Cristo in order to do away with labor organizations.
[13]

Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not
violate the right to form lawful associations, for the right to join associations includes the right
not to join or to resign from a labor organization, if one's conscience does not allow his
membership therein, and the Act has given substance to such right by prohibiting the
compulsion of workers to join a labor organization;[14] that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated into, the terms of the
closed shop agreement;[15] that the Act does not violate the establishment of religion clause or
separation of Church and State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its members from joining labor
unions, and balanced the collective rights of organized labor with the constitutional right of an
individual to freely exercise his chosen religion; that the constitutional right to the free exercise
of one's religion has primacy and preference over union security measures which are merely
contractual;[16] that said Act does not violate the constitutional provision of equal protection,
for the classification of workers under the Act depending on their religious tenets is based on
substantial distinction, is germane to the purpose of the law, and applies to all the members of a
given class;[17] that said Act, finally, does not violate the social justice policy of the
Constitution, for said Act was enacted precisely to equalize employment opportunities for all
citizens in the midst of the diversities of their religious beliefs.[18]

I.        Before We proceed to the discussion of the first assigned error, it is necessary to premise
that there are some thoroughly established principles which must be followed in all cases where
questions of constitutionality as obtains in the instant case are involved.  All presumptions are
indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality,
must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may be conceived which supports the
statute, it will be upheld, and the challenger must negate all possible bases; that the courts are
not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be
adopted.[19]

1.       Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members
of such religious sects that forbid affiliation of their members with labor unions from joining
labor unions appears nowhere in the wording of Republic Act No. 3350; neither can the same be
deduced by necessary implication therefrom.  It is not surprising, therefore, that appellant,
having thus misread the Act, committed the error of contending that said Act is obnoxious to the
constitutional provision on freedom of association.

Both the Constitution and Republic Act No. 875 recognize freedom of association.  Section 1
(6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the
Constitution of 1973, provide that the right to form associations or societies for purposes not
contrary to law shall not be abridged.  Section 3 of Republic Act No. 875 provides that
employees shall have the right to self-organization and to form, join or assist labor organizations
of their own choosing for the purpose of collective bargaining and to engage in concerted
activities for the purpose of collective bargaining and other mutual aid or protection.  What the
Constitution and the Industrial Peace Act recognize and guarantee is the "right" to form or join
associations.  Notwithstanding the different theories propounded by the different schools of
jurisprudence regarding the nature and contents of a "right", it can be safely said that whatever
theory one subscribes to, a right comprehends at least two broad notions, namely:  first, liberty
or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself
without being prevented by law; and second, power, whereby an employee may, as he pleases,
join or refrain from joining an association.  It is, therefore, the employee who should decide for
himself whether he should join or not an association; and should he choose to join, he himself
makes up his mind as to which association he would join; and every after he has joined, he still
retains the liberty and the power to leave and cancel his membership with said organization at
any time.[20] It is clear, therefore, that the right to join a union includes the right to abstain from
joining any union.[21] Inasmuch as what both the Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the "right" to join associations of his choice, it
would be absurd to say that the law also imposes, in the same breath, upon the employee the
duty to join associations.  The law does not enjoin an employee to sign up with any association.

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial
Peace Act is, however, limited.  The legal protection granted to such right to refrain from
joining is withdrawn by operation of law, where a labor union and an employer have agreed on
a closed shop, by virtue of which the employer may employ only members of the collective
bargaining union, and the employees must continue to be members of the union for the duration
of the contract in order to keep their jobs.  Thus Section 4 (a) (4) of the Industrial Peace Act,
before its amendment by Republic Act No. 3350, provides that although it would be an unfair
labor practice for an employer "to discriminate in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any labor
organization" the employer is, however, not precluded "from making an agreement with a labor
organization to require as a condition of employment membership therein, if such labor
organization is the representative of the employees".  By virtue, therefore, of a closed shop
agreement, before the enactment of Republic Act No. 3350, if any person, regardless of his
religious beliefs, wishes to be employed or to keep his employment, he must become a member
of the collective bargaining union.  Hence, the right of said employee not to join the labor union
is curtailed and withdrawn.

To that all embracing coverage of the closed shop arrangement, Republic Act No. 3350
introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the
following proviso:  "but such agreement shall not cover members of any religious sects which
prohibit affiliation of their members in any such labor organization".  Republic Act No. 3350
merely excludes ipso jure from the application and coverage of the closed shop agreement the
employees belonging to any religious sects which prohibit affiliation of their members with any
labor organization.  What the exception provides, therefore, is that members of said religious
sects cannot be compelled or coerced to join labor unions even when said unions have closed
shop agreements with the employers; that in spite of any closed shop agreement, members of
said religious sects cannot be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining union.  It is clear, therefore, that
the assailed Act, far from infringing the constitutional provision on freedom of association,
upholds and reinforces it.  It does not prohibit the members of said religious sects from
affiliating with labor unions.  It still leaves to said members the liberty and the power to
affiliate, or not to affiliate, with labor unions.  If, notwithstanding their religious beliefs, the
members of said religious sects prefer to sign up with the labor union, they can do so.  If in
deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does
not coerce them to join; neither does the law prohibit them from joining; and neither may the
employer or labor union compel them to join.  Republic Act No. 3350, therefore, does not
violate the constitutional provision on freedom of association.

2.            Appellant Union also contends that the Act is unconstitutional for impairing the
obligation of its contract, specifically, the "union security clause" embodied in its Collective
Bargaining Agreement with the Company, by virtue of which "membership in the union was
required as a condition for employment for all permanent employees workers".  This agreement
was already in existence at the time Republic Act No. 3350 was enacted on June 18, 1961, and
it cannot, therefore, be deemed to have been incorporated into the agreement.  But by reason of
this amendment, Appellee, as well as others similarly situated, could no longer be dismissed
from his job even if he should cease to be a member, or disaffiliate from the Union, and the
Company could continue employing him notwithstanding his disaffiliation from the Union.  The
Act, therefore, introduced a change into the express terms of the union security clause; the
Company was partly absolved by law from the contractual obligation it had with the Union of
employing only Union members in permanent positions.  It cannot be denied, therefore, that
there was indeed an impairment of said union security clause.

According to Black, any statute which introduces a change into the express terms of the
contract, or its legal construction, or its validity, or its discharge, or the remedy for its
enforcement, impairs the contract.  The extent of the change is not material.  It is not a question
of degree or manner or cause, but of encroaching in any respect on its obligation or dispensing
with any part of its force.  There is an impairment of the contract if either party is absolved by
law from its performance.[22] Impairment has also been predicated on laws which, without
destroying contracts, derogate from substantial contractual rights.[23]

It should not be overlooked, however, that the prohibition to impair the obligation of contracts is
not absolute and unqualified.  The prohibition is general, affording a broad outline and requiring
construction to fill in the details.  The prohibition is not to be read with literal exactness like a
mathematical formula, for it prohibits unreasonable impairment only.[24] In spite of the
constitutional prohibition, the State continues to possess authority to safeguard the vital interests
of its people.  Legislation appropriate to safeguarding said interests may modify or abrogate
contracts already in effect.[25] For not only are existing laws read into contracts in order to fix
the obligations as between the parties, but the reservation of essential attributes of sovereign
power is also read into contracts as a postulate of the legal order.  All contracts made with
reference to any matter that is subject to regulation under the police power must be understood
as made in reference to the possible exercise of that power.[26] Otherwise, important and
valuable reforms may be precluded by the simple device of entering into contracts for the
purpose of doing that which otherwise may be prohibited.  The policy of protecting contracts
against impairment presupposes the maintenance of a government by virtue of which
contractual relations are worthwhile – a government which retains adequate authority to secure
the peace and good order of society.  The contract clause of the Constitution must, therefore, be
not only in harmony with, but also in subordination to, in appropriate instances, the reserved
power of the state to safeguard the vital interests of the people.  It follows that not all
legislations, which have the effect of impairing a contract, are obnoxious to the constitutional
prohibition as to impairment, and a statute passed in the legitimate exercise of police power,
although it incidentally destroys existing contract rights, must be upheld by the courts.  This has
special application to contracts regulating relations between capital and labor are not merely
contractual, and said labor contracts, for being impressed with public interest, must yield to the
common good.[27]

In several occasions this Court declared that the prohibition against impairing the obligations of
contracts has no application to statutes relating to public subjects within the domain of the
general legislative powers of the state involving public welfare.[28] Thus, this Court also held
that the Blue Sunday Law was not an infringement of the obligation of a contract that required
the employer to furnish work on Sundays to his employees, the law having been enacted to
secure the well-being and happiness of the laboring class, and being, furthermore, a legitimate
exercise of the police power.[29]

In order to determine whether legislation unconstitutionally impairs contract obligations, no

unchanging yardstick, applicable at all times and under all circumstances, by which the validity
of each statute may be measured or determined, has been fashioned, but every case must be
determined upon its own circumstances.  Legislation impairing the obligation of contracts can
be sustained when it is enacted for the promotion of the general good of the people, and when
the means adopted to secure that end are reasonable.  Both the end sought and the means
adopted must be legitimate, i.e., within the scope of the reserved power of the state construed in
harmony with the constitutional limitation of that power.[30]

What then was the purpose sought to be achieved by Republic Act No. 3350?  Its purpose was
to insure freedom of belief and religion, and to promote the general welfare by preventing
discrimination against those members of religious sects which prohibit their members from
joining labor unions, confirming thereby their natural, statutory and constitutional right to work,
the fruits of which work are usually the only means whereby they can maintain their own life
and the life of their dependents.  It cannot be gainsaid that said purpose is legitimate.

The questioned Act also provides protection to members of said religious sects against two
aggregates of group strength from which the individual needs protection.  The individual
employee, at various times in his working life, is confronted by two aggregates of power –
collective labor, directed by a union, and collective capital, directed by management.  The
union, an institution developed to organize labor into a collective force and thus protect the
individual employee from the power of collective capital, is, paradoxically, both the champion
of employee rights, and a new source of their frustration.  Moreover, when the Union interacts
with management, it produces yet a third aggregate of group strength from which the individual
also needs protection – the collective bargaining relationship.[31]

The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to
House Bill No. 5859, which later became Republic Act No. 3350, as follows:

"It would be unthinkable indeed to refuse employing a person who, on account of his
religious beliefs and convictions, cannot accept membership in a labor organization
although he possesses all the qualifications for the job.  This is tantamount to
punishing such person for believing in a doctrine he has a right under the law to
believe in.  The law would not allow discrimination to flourish to the detriment of
those whose religion discards membership in any labor organization.  Likewise, the
law would not commend the deprivation of their right to work and pursue a modest
means of livelihood, without in any manner violating their religious faith and/or
belief."[32]

It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose –
exempting the members of said religious sects from coverage of union security agreements – is
reasonable.

It may not be amiss to point out here that the free exercise of religious profession or belief is
superior to contract rights.  In case of conflict, the latter must, therefore, yield to the former. 
The Supreme Court of the United States has also declared on several occasions that the rights in
the First Amendment, which include freedom of religion, enjoy a preferred position in the
constitutional system.[33] Religious freedom, although not unlimited, is a fundamental personal
right and liberty,[34] and has a preferred position in the hierarchy of values.  Contractual rights,
therefore, must yield to freedom of religion.  It is only where unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the community that infringement
of religious freedom may be justified, and only to the smallest extent necessary to avoid the
danger.

3.            In further support of its contention that Republic Act No. 3350 is unconstitutional,
appellant Union averred that said Act discriminates in favor of members of said religious sects
in violation of Section 1 (7) of Article III of the 1935 Constitution, and which is now Section 8
of Article IV of the 1973 Constitution, which provides:

 "No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof, and the free exercise and enjoyment of religious profession and
worship without discrimination and preference, shall forever be allowed.  No
religious test shall be required for the exercise of civil or political rights."

The constitutional provision not only prohibits legislation for the support of any religious tenets
or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of
any creed or the practice of any form of worship,[35] but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude.  It has been said that the religion
clauses of the Constitution are all 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.[36] Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect.[37] But if the state regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the
state's secular goals the statute is valid despite its indirect burden on religious observance,
unless the state can accomplish its purpose without imposing such burden.[38]

In Aglipay vs. Ruiz,[39] this Court had occasion to state that the government should not be
precluded from pursuing valid objectives secular in character even if the incidental result would
be favorable to a religion or sect.  It has likewise been held that the statute, in order to withstand
the strictures of constitutional prohibition, must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion.[40] Assessed by these criteria, Republic Act
No. 3350 cannot be said to violate the constitutional inhibition of the "no-establishment" (or
religion) clause of the Constitution.

The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or
religious or holy and eternal.  It was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be refused
work, or be dismissed from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union security agreements.  To
help its citizens to find gainful employment whereby they can make a living to support
themselves and their families is a valid objective of the state.  In fact, the state is enjoined, in the
1935 Constitution, to afford protection to labor, and regulate the relations between labor and
capital and industry.[41] More so now in the 1973 Constitution where it is mandated that "the
State shall afford protection to labor, promote full employment and equality in employment,
ensure equal work opportunities regardless of sex, race or creed and regulate the relation
between workers and employers."[42]

The primary effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor organization, is the
protection of said employees against the aggregate force of the collective bargaining agreement,
and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a
certain extent economic insecurity due to unemployment, which is a serious menace to the
health, morals, and welfare of the people of the State, the Act also promotes the well-being of
society.  It is our view that the exemption from the effects of closed shop agreement does not
directly advance, or diminish, the interests of any particular religion.  Although 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.  The
"establishment clause" (of religion) does not ban regulation on conduct whose reason or effect
merely happens to coincide or harmonize with the tenets of some or all religions.[43] The free
exercise clause of the Constitution has been interpreted to require that religious exercise be
preferentially aided.[44]

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit
of the constitutional provision.  It acted merely to relieve the exercise of religion, by certain
persons, of a burden that is imposed by union security agreements.  It was Congress itself that
imposed that burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly,
Congress, if it so deems advisable, could take away the same burden.  It is certain that not every
conscience can be accommodated by all the laws of the land; but when general law conflict with
scruples of conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes.[45] In the instant case, We see no such compelling state interest to withhold the
exemption.

Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects,
it leaves no right to, and is silent as to the protection of, labor organizations.  The purpose of
Republic Act No. 3350 was not to grant rights to labor unions.  The rights of labor unions are
amply provided for in Republic Act No. 875 and the new Labor Code.  As to the lamented
silence of the Act regarding the rights and protection of labor unions, suffice it to say, first, that
the validity of a statute is determined by its provisions, not by its silence;[46] and, second, the
fact that the law may work hardship does not render it unconstitutional.[47]

It would not be amiss to state, regarding this matter, that to compel persons to join and remain
members of a union to keep their jobs in violation of their religious scruples, would hurt, rather
than help, labor unions.  Congress has seen it fit to exempt religious objectors lest their
resistance spread to other workers, for religious objections have contagious potentialities more
than political and philosophic objections.

Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a
labor union – assuming that such unity and loyalty can be attained through coercion – is not a
goal that is constitutionally obtainable at the expense of religious liberty.[48] A desirable end
cannot be promoted by prohibited means.

4.            Appellant's fourth contention, that Republic Act. No. 3350 violates the constitutional
prohibition against requiring a religious test for the exercise of a civil right or a political right, is
not well taken.  The Act does not require as a qualification, or condition, for joining any lawful
association membership in any particular religion or in any religious sect; neither does the Act
require affiliation with a religious sect that prohibits its members from joining a labor union as a
condition or qualification for withdrawing from a labor union.  ­Joining or withdrawing from a
labor union requires a positive act.  Republic Act No. 3350 only exempts members with such
religious affiliation from the coverage of closed shop agreements.  So, under this Act, a
religious objector is not required to do a positive act – to exercise the right to join or to resign
from the union.  He is exempted ipso jure without need of any positive act on his part.  A
conscientious religious objector need not perform a positive act or exercise the right of
resigning from the labor union – he is exempted from the coverage of any closed shop
agreement that a labor union may have entered into.  How then can there be a religious test
required for the exercise of a right when no right need be exercised?

We have said that it was within the police power of the State to enact Republic Act No. 3350,
and that its purpose was legal and in consonance with the Constitution.  It is never an illegal
evasion of a constitutional provision or prohibition to accomplish a desired result, which is
lawful in itself, by discovering or following a legal way to do it.[49]

5.            Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory
legislation, inasmuch as it grants to the members of certain religious sects undue advantages
over other workers, thus violating Section 1 of Article III of the 1935 Constitution which
forbids the denial to any person of the equal protection of the laws.[50]

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state.  It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute.  Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances surrounding
them.  It guarantees equality, not identity of rights.  The Constitution does not require that things
which are different in fact be treated in law as though they were the same.  The equal protection
clause does not forbid discrimination as to things that are different.[51] It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory within
which it is to operate.

The equal protection of the laws clause of the Constitution allows classification.  Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars.  A law is not
invalid because of simple inequality.[52] The very idea of classification is that of inequality, so
that it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality.[53] All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real
differences; that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class.[54] This
Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.[55]

In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion.[56] It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation.[57] Neither is it necessary that the classification be made with mathematical nicety.[58]
Hence legislative classification may in many cases properly rest on narrow distinctions,[59] for
the equal protection guaranty does not preclude the legislature from recognizing degrees of evil
or harm, and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned requirements.  The Act
classifies employees and workers, as to the effect and coverage of union shop security
agreements, into those who by reason of their religious beliefs and convictions cannot sign up
with a labor union, and those whose religion does not prohibit membership in labor unions.  The
classification rests on real or substantial, not merely imaginary or whimsical, distinctions. 
There is such real distinction in the beliefs, feelings and sentiments of employees.  Employees
do not believe in the same religious faith and different religions differ in their dogmas and
canons.  Religious beliefs, manifestations and practices, though they are found in all places, and
in all times, take so many varied forms as to be almost beyond imagination.  There are many
views that comprise the broad spectrum of religious beliefs among the people.  There are
diverse manners in which beliefs, equally paramount in the lives of their possessors, may be
articulated.  Today the country is far more heterogenous in religion than before, differences in
religion do exist, and these differences are important and should not be ignored.

Even from the psychological point of view, the classification is based on real and important
differences.  Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for
they carry with them practical consequences and are the motives of certain rules of human
conduct and the justification of certain acts.[60] Religious sentiment makes a man view things
and events in their relation to his God.  It gives to human life its distinctive character, its tone,
its happiness, or unhappiness, its enjoyment or irksomeness.  Usually, a strong and passionate
desire is involved in a religious belief.  To certain persons, no single factor of their experience is
more important to them than their religion or their not having any religion.  Because of
differences in religious belief and sentiments, a very poor person may consider himself better
than the rich, and the man who even lacks the necessities of life may be more cheerful than the
one who has all possible luxuries.  Due to their religious belief people, like the martyrs, became
resigned to the inevitable and accepted cheerfully, even the most painful and excruciating
pains.  Because of differences in religious beliefs, the world has witnessed turmoil, civil strife,
persecution, hatred, bloodshed and war, generated to a large extent by members of sects who
were intolerant, of other religious beliefs.  The classification, introduced by Republic Act No.
3350, therefore, rests on substantial distinctions.

The classification introduced by said Act is also germane to its purpose.  The purpose of the law
is precisely to avoid those who cannot, because of their religious belief, join labor unions, from
being deprived of their right to work and from being dismissed from their work because of
union shop security agreements.

Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the
time of its enactment.  The law does not provide that it is to be effective for a certain period of
time only.  It is intended to apply for all times as long as the conditions to which the law is
applicable exist.  As long as there are closed shop agreements between an employer and a labor
union, and there are employees who are prohibited by their religion from affiliating with labor
unions, their exemption from the coverage of said agreements continues.

Finally, the Act applies equally to all members of said religious sects; this is evident from its
provision.

The fact that the law grants a privilege to members of said religious sects cannot by itself render
the Act unconstitutional, for as We have adverted to, the Act only restores to them their freedom
of association which closed shop agreements have taken away, and puts them in the same plane
as the other workers who are not prohibited by their religion from joining labor unions.  The
circumstance, that the other employees, because they are differently situated, are not granted the
same privilege, does not render the law unconstitutional, for every classification allowed by the
Constitution by its nature involves inequality.

The mere fact that the legislative classification may result in actual inequality is not violative of
the right to equal protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered invalid.  A classification
otherwise reasonable does not offend the constitution simply because in practice it results in
some inequality.[61] Anent this matter, it has been said that whenever it is apparent from the
scope of the law that its object is for the benefit of the public and the means by which the
benefit is to be obtained are of public character, the law will be upheld even though incidental
advantage may occur to individuals beyond those enjoyed by the general public.[62]

6.            Appellant's further contention that Republic Act No. 3350 violates the constitutional
provision on social justice is also baseless.  Social justice is intended to promote the welfare of
all the people.[63] Republic Act No. 3350 promotes that welfare insofar as it looks after the
welfare of those who, because of their religious belief, cannot join labor union; the Act prevents
their being deprived of work and of the means of livelihood.  In determining whether any
particular measure is for public advantage, it is not necessary that the entire state be directly
benefited – it is sufficient that a portion of the state be benefited thereby.

Social justice also means the adoption by the Government of measures calculated to insure
economic stability of all component elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the members of the community.[64]
Republic Act No. 3350 insures economic stability to the members of a religious sect, like the
Iglesia ni Cristo, who are also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union having a closed shop agreement
with the employer.  The Act also advances the proper economic and social equilibrium between
labor unions and employees who cannot join labor unions, for it exempts the latter from the
compelling necessity of joining labor unions that have closed shop agreements, and equalizes, in
so far as opportunity to work is concerned, those whose religion prohibits membership in labor
unions with those whose religion does not prohibit said membership.  Social justice does not
imply social equality, because social inequality will always exist as long as social relations
depend on personal or subjective proclivities.  Social justice does not require legal equality
because legal equality, being a relative term, is necessarily premised on differentiations based
on personal or natural conditions. [65] Social justice guarantees equality of opportunity,[66] and
this is precisely what Republic Act No. 3350 proposes to accomplish – it gives laborers,
irrespective of their religious scruples, equal opportunity for work.

7.       As its last ground, appellant contends that the amendment introduced by Republic. Act
No. 3350 is not called for – in other words, the Act is not proper, necessary or desirable.  Anent
this matter, it has been held that a statute which is not necessary is not, for that reason,
unconstitutional; that in determining the constitutional validity of legislation, the courts are
unconcerned with issues as to the necessity for the enactment of the, legislation in question.[67]
Courts do inquire into the wisdom of laws.[68] Moreover, legislatures, being chosen by the
people, are presumed to understand and correctly appreciate the needs of the people, and it may
change the laws accordingly.[69] The fear is entertained by appellant that unless the Act is
declared unconstitutional, employers will prefer employing members of religious sects that
prohibit their members from joining labor unions, and thus be a fatal blow to unionism.  We do
not agree.  The threat to unionism will depend on the number of employees who are members of
the religious sects that control the demands of the labor market.  But there is really no occasion
now to go further and anticipate problems We cannot judge with the material now before Us.  At
any rate, the validity of a statute is to be determined from its general purpose and its efficacy to
accomplish the end desired, not from its effects on a particular case.[70] The essential basis for
the exercise of power, and not a mere incidental result arising from its exertion, is the criterion
by which the validity of a statute is to be measured.[71]

II.       We now pass on the second assignment of error, in support of which the Union argued
that the decision of the trial court ordering the Union to pay P500 for attorney's fees directly
contravenes Section 24 of Republic Act No. 875, for the instant action involves an industrial
dispute wherein the Union was a party, and said Union merely acted in the exercise of its rights
under the union shop provision of its existing collective bargaining contract with the Company;
that said order also contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was
never actually dismissed by the defendant Company and did not therefore suffer any damage at
all.[72]

In refuting appellant Union's arguments, Appellee claimed that in the instant case there was
really no industrial dispute involved in the attempt to compel Appellee to maintain its
membership in the union under pain of dismissal, and that the Union, by its act, inflicted
intentional harm on Appellee; that since Appellee was compelled to institute an action to protect
his right to work, appellant could legally be ordered to pay attorney's fees under Articles 1704
and 2208 of the Civil Code.[73]

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant
provides that:

"No suit, action or other proceeding shall be maintainable in any court against a
labor organization or any officer or member thereof for any act done by or on behalf
of such organization in furtherance of an industrial dispute to which it is a party, on
the ground only that such act induces some other person to break a contract of
employment or that it is in restraint of trade or interferes with the trade, business or
employment of some other person or with the right of some other person to dispose
of his capital or labor." (Italics supplied)

That there was a labor dispute in the instant case cannot be disputed, for appellant sought the
discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of
Republic Act No. 875 a question involving tenure of employment is included in the term "labor
dispute".[74] The discharge or the act of seeking it is the labor dispute itself.  It being the labor
dispute itself, that very same act of the Union in asking the employer to dismiss Appellee cannot
be "an act done x x x in furtherance of an industrial dispute".  The mere fact that appellant is a
labor union does not necessarily mean that all its acts are in furtherance of an industrial dispute.
[75]Appellant Union, therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. 
This case is not intertwined with any unfair labor practice case existing at the time when
Appellee filed his complaint before the lower court.

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield.  The
article provides that attorney's fees and expenses of litigation may be awarded "when the
defendant's act or omission has compelled the plaintiff x x x to incur expenses to protect his
interest"; and "in any other case where the court seems it just and equitable that attorney's fees
and expenses of litigation should be recovered".  In the instant case, it cannot be gainsaid that
appellant Union's act in demanding Appellee's dismissal caused Appellee to incur expenses to
prevent his being dismissed from his job.  Costs according to Section 1, Rule 142, of the Rules
of Court, shall be allowed as a matter of course to the prevailing party.

WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the
Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with
costs against appellant Union. 

IT IS SO ORDERED.

Makalintal, C.J., Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Munoz Palma, and
Aquino, JJ., concur.
Fernando, J., see separate concurring opinion.
Fernandez, J., took no part because he was co-author, when he was Senator, of Republic Act
No. 3350.

[1] Record on Appeal, pages 2-7.

[2] Record on Appeal, pages 14-17.

[3] Record on Appeal, pages 27-35.

[4] Quoted from Brief for Appellant, page 3.

[5] Quoted from Brief for Appellant, page 2.

[6] Brief for Appellant, pages 2-3.

[7] Brief for Appellant, pages 3-5.

[8] Brief for Appellant, pages 5-6.

[9] Brief for Appellant, page 6.

[10] Brief for Appellant, pages 7-8.

[11] Brief for Appellant, pages 8-9.

[12] Appellant cites in support thereof Otten vs. Baltimore & Or. et al., 205 F 2d 58, and Wicks
vs. Southern Pacific Co., D.C. Cal., 121 F. Supp. 454; Jenson vs. Union Pacific R. Co., et al.,
121 F. Supp. 454.

[13] Brief for Appellant, pages 9-11.

[14] Brief for Plaintiff-Appellee, pages 6-8.

[15] Brief for Plaintiff-Appellee, pages 8-11.

[16] Brief for Plaintiff-Appellee, pages 11-28.

[17] Brief for Plaintiff-Appellee, pages 28-32.

[18] Brief for Plaintiff-Appellee, pages 32-36.

[19] Danner vs. Hass, 194 N.W. 2d 534, 539; Spurbeck vs. Statton, 106 N.W. 2d, 660, 663.

[20]
Pagkakaisa Samahang Manggagawa ng San Miguel Brewery vs. Enriquez, et al., 108 Phil.,
1010, 1019.

[21]
Abo, et al. vs. PHILAME (KG) Employees & Workers Union, et al., L-19912, January 30,
1965, 13 SCRA 120, 123, quoting Rothenberg, Labor Relations.

[22] Black's Constitutional Law, 2nd ed., page 607.

[23] Home Building & Loan Association vs. Blaisdell, 290 U.S. 398, 78 L Ed 413, 425.

[24] Re People (Title & Mort. Guar. Co.) 264 N.Y. 69, 190 N.E., 153, 96 ALR 297, ­304.

[25] Stephenson vs. Binford, 287 U.S. 251, 176, 77 L. ed. 288, 301, 53 S. Ct. 181, 87 A.L.R. 721.

[26] 16 Am. Jur. 2d, pages 584-585.

[27] Art. 1700, Civil Code of the Philippines.

[28]Ilusorio, et al. vs. Court of Agrarian Relations, et al., L-20344, May 16, 1966, 17 SCRA 25,
29; Ongsiako vs. Gamboa, et al., 86 Phil., 50, 54-55.
[29]Asia Bed Factory vs. National Bed and Kapok Industries Workers' Union, 100 Phil., 837,
840.

[30] Re People (Title & Mort. Guar. Co.), 264 N.Y. 69, 190 N.E. 153, 96 ALR 297, 304.

[31] "Individual Rights in Industrial Self-Government – A 'State Action' Analysis",

Northwestern University Law Review, Vol. 63. No. 1, March-April, 1968, page 4.

[32]
Congressional Record of the House, Vol. IV, Part II, April 11 to May 18, 1961, pages 3300-
3301.

[33] Jonesvs. Opelika, 316 U.S. 584, 86 L. ed. 1691, 62 S. Ct. 717; Follet vs. McCormick, 321
U.S. 158, 88 L. ed 938, 63 S. Ct. 717.

[34] Schneider vs. Irgington, 308 U.S. 147, 161, 84 L. ed. 155, 164, 60 S. Ct. 146.

[35] U.S. vs. Ballard, 322 U.S. 78, 88 L. ed, 1148, 1153.

[36]William A. Carroll, "The Constitution, the Supreme Court, and Religion", The American
Political Science Review, LXI; 657-674, page 663, Sept. 1967.

[37] Sherbert vs. Verner, 374 U.S. 398, 10 L. ed. 2d 965, 83 S. Ct. 1790.

[38] Braunfeldvs. Brown, 366 US 599, 6 Led. 2d. 563, 81 S. Ct. 1144; McGowan vs. Maryland,
366 U.S. 420, 444-5 and 449.

[39] 64 Phil. 201, 209-210.

[40] Board of Education vs. Allen, 392 CS 236, 20 L. ed. 2d, 1060, 88 S. Ct. 1923.

[41] Art. XIV, Section 6, 1935 Constitution of the Philippines.

[42] Article II, Section 9, 1973 Constitution.

[43] McGowan vs. Maryland, 366 U.S. 420, 422, 6 L. ed. 2d 393, 408, 81 S. Ct. 1101.

[44]Alan Schwartz, "No Imposition of Religion:  The Establishment Clause Value", Yale Law
Journal, 1968 Vol. 77, page 692.

[45] Sherbert vs. Verner, 374 U.S. 398, 10 L. ed. 2d 965, 970, 83 S. Ct. 1790.

[46] People ex rel. Ryan vs. Sempek, 147 N.E. 2d 295, 298.
[47]Diamond Auto Sales Inc. vs. Erbe, 105 N.W. 2d 650, 652; Spurbeck vs. Statton, 106 N.W.
2d 660, 663; Danner vs. Hass, 134 N.W. 2d 534, 539.

[48] Cf. Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.

[49] Book vs. State Office Bldg. Commission, 149 N.E. 2d 273, 278.

[50] Now Section 1, Article IV, 1973 Constitution.

[51] 16 Am. Jur. 2d page 850.

[52] International Harvester Co. vs. Missouri, 234 U.S. 199, 58 L. ed. 1276, 1282.

[53] Atchison, T.S.F.R. Co. vs. Missouri, 234 U.S. 199, 58 L. ed. 1276, 1282.

[54] People vs. Vera, 65 Phil. 56, 126.

[55] People vs. Carlos, 78 Phil. 535, 542, citing 16 C.J.S. 997.

[56] 16 Am. Jur. 2d, page 862.

[57] Continental Baking Co. vs. Woodring, 286 U.S. 352, 76 L. ed. 1155, 1182.

[58] Great Atlantic & Pacific Tea Co. vs. Grosjean, 301 U.S. 412, 81 L. ed. 1193, 1200.

[59] German Alliance Ins. Co. vs. Lewis, 233 U.S. 389, 58 L. ed., 1011, 1024.

[60] Charles Dubray Introductory Philosophy, 1923, page 132.

[61] Great Atlantic & Pacific Tea Co. vs. Grosjean, 301 U.S. 412, 81 L. ed. 1193, 1200.

[62] State vs. Stinson Canning Co., 211 A. 2d 553, 555.

[63] Calalang vs. Williams, 70 Phil. 726, 734.

[64] Ibid.

[65]
Speech delivered by Jose P. Laurel before the Constitutional Convention on November 19,
1934, in Malcolm and Laurel, Philippine Constitutional Law, page 334.

[66] Guido vs. Rural Progress Administration, 84 Phil. 847, 852.

[67] 16 Am. Jur. 2d. page 378.

[68]
Province of Pangasinan vs. Hon. Secretary of Public Works, et al., L-27861, October 31,
1969, 30 SCRA 134.

[69] Arizona Copper Co. vs. Hammer, 250 U.S. 400, 63 L. ed. 1058, 1066.

[70]
Sanitation Dist. vs. Campbell, 249 SW 2d 767, 770; City of Rochester vs. Gutberlett, 211
NW 105 NE 548, 550.

[71] Hammond Packing Co. vs. Arkansas, 212 U.S. 322, 53 L. ed. 530, 545.

[72] Brief for Appellant, pages 12-14.

[73] Brief for Plaintiff-Appellee, pages 48-49.

[74] Seno vs. Mendoza, L-20565, Nov. 29, 1967, 21 SCRA 1124, 1129.

[75]
Abo vs. PHILAME (kg) Employees and Workers Union, L-19912, January 30, 1965, 13
SCRA 120, 124.

CONCURRING OPINION

FERNANDO, J.:

The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the
constitutional infirmities imputed to it was demonstrated in a manner well-nigh conclusive in
the learned, scholarly, and comprehensive opinion so typical of the efforts of the ponente,
Justice Zaldivar.  Like the rest of my brethren, I concur fully.  Considering moreover, the
detailed attention paid to each and every objection raised as to its validity and the clarity and
persuasiveness with which it was shown to be devoid of support in authoritative doctrines, it
would appear that the last word has been written or this particular subject.  Nonetheless, I deem
it proper to submit this brief expression of my views on the transcendent character of religious
freedom[1] and its primacy even as against the claims of protection to labor,[2] also one of the
fundamental principles of the Constitution.

1.       Religious freedom is identified with the liberty every individual possesses to worship or
not a Supreme Being, and if a devotee of any sect, to act in accordance with its creed.  Thus is
constitutionally safeguarded, according to Justice Laurel, that "profession of faith to an active
power that binds and elevates man to his Creator * * *."[3] The choice of what a man wishes to
believe in is his and his alone.  That is a domain left untouched, where intrusion is not allowed,
a citadel to which the law is denied entry, whatever be his thoughts or hopes.  In that sphere,
what he wills reigns supreme.  The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation.  No matter.  There is no requirement as
to its conformity to what has found acceptance.  It suffices that for him such a concept holds
undisputed sway.  That is a recognition of man's freedom.  That for him is one of the ways of
self-realization.  It would be to disregard the dignity that attaches to every human being to
deprive him of such an attribute.  The "fixed star on our constitutional constellation," to borrow
the felicitous phrase of Justice Jackson, is that no official, not excluding the highest, has it in his
power to prescribe what shall be orthodox in matters of conscience – or to mundane affairs, for
that matter.

Gerona vs. Secretary of Education[4] speaks similarly.  In the language of its ponente, Justice
Montemayor:  "The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought.  So is the freedom of belief, including religious belief, limitless and
without bounds.  One may believe in most anything, however strange, bizarre and unreasonable
the same may appear to others, even heretical when weighed in the scales of orthodoxy or
doctrinal standards."[5] There was this qualification though:  "But between the freedom of belief
and the exercise of said belief, there is quite a stretch of road to travel.  If the exercise of said
religious belief clashes with the established institutions of society and with the law, then the
former must yield and give way to the latter.  The Government steps in and either restrains said
exercise or even prosecutes the one exercising it."[6] It was on that basis that the daily
compulsory flag ceremony in accordance with a statute[7] was found free from the constitutional
objection on the part of a religious sect, the Jehovah's Witnesses, whose members alleged that
their participation would be offensive to their religious beliefs.  In a case not dissimilar, West
Virginia State Board of Education vs. Barnette,[8] the American Supreme Court reached a
contrary conclusion.  Justice Jackson's eloquent opinion is, for this writer, highly persuasive. 
Thus:  "The case is made difficult not because the principles of its decision are obscure but
because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution
with no fear that freedom to he intellectually and spiritually diverse or even contrary will
disintegrate the social organization.  To believe that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual
individualism and the rich cultural diversities that we owe to exceptional minds only at the price
of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the
State as those we deal with here, the price is not too great.  But freedom to differ is not limited
to things that do not matter much.  That would be a mere shadow of freedom.  The test of its
substance is the right to differ as to things that touch the heart of the existing order."[9]

There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious
freedom in the forum of conscience even as against the command of the State itself:  "Much has
been said of the paramount duty to the state, a duty to be cognized, it is urged, even though it
conflicts with convictions of duty to God.  Undoubtedly that duty to the state exists within the
domain of power, for government may enforce obedience to laws regardless of scruples.  When
one's belief collides with the power of the state, the latter is supreme within its sphere and
submission or punishment follows.  But, in the forum of conscience, duty to a moral power
higher than the state has always been maintained.  The reservation of that supreme obligation, as
a matter of principle, would unquestionably be made by many of our conscientious and law-
abiding citizens.  The essence of religion is belief in a relation to God involving duties superior
to those arising from any human relation."[10] The American Chief Justice spoke in dissent, it is
true, but with him in agreement were three of the foremost jurists who ever sat in that Tribunal,
Justices Holmes, Brandeis, and Stone.

2.       As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is
wholehearted and entire.  With such a cardinal postulate as the basis of our polity, it has a
message that cannot be misread.  Thus is intoned with a reverberating clang, to paraphrase
Cardozo, a fundamental principle that drowns all weaker sounds.  The labored effort to cast
doubt on the validity of the statutory provision in question is far from persuasive.  It is attended
by futility.  It is not for this Court, as I conceive of the judicial function, to restrict the scope of a
preferred freedom.

3.       There is, however, the question of whether such an exception possesses an implication
that lessens the effectiveness of state efforts to protect labor, likewise as noted, constitutionally
obtained.  Such a view, on the surface, may not be lacking in plausibility, but upon closer
analysis, it cannot stands scrutiny.  Thought must be given to the freedom of association,
likewise an aspect of intellectual liberty.  For the late Professor Howe, a constitutionalist and in
his lifetime the biographer of the great Holmes, it even partakes of the political theory of
pluralistic sovereignty.  So great is the respect for the autonomy accorded voluntary societies.
[11] Such a right implies at the very least that one can determine for himself whether or not he
should join or refrain from joining a labor organization, an institutional device for promoting the
welfare of the working man.  A closed shop, on the other hand, is inherently coercive.  That is
why, as is unmistakably reflected in our decisions, the latest of which is Guijarno vs. Court of
Industrial Relations,[12] it is far from being a favorite of the law.  For a statutory provision then
to further curtail its operation, is precisely to follow the dictates of sound public policy.

The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of
constitutional tradition.  That, for me, is the channel to follow.

[1] Article IV, Section 8 of the Constitution provides:  "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." There is thus a reiteration of such freedom as found in Article III, Section 1, par. 7 of
the 1935 Constitution.

[2]Article II, Section 9 of the Constitution provides:  "The State shall afford protection to labor,
promote full employment and equality in employment, ensure equal work opportunities
regardless of sex, race, or creed, and regulate the relations between workers and employers. 
The State shall assure the rights of workers to self-organization, collective bargaining, security
of tenure, and just and humane conditions of work.  The State may provide for compulsory