G.R. No.

205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6 Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
 Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain. 11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays. 19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
 A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction. 22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38 However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

 5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46 No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55 Definitely, the subject matter in this case is different
from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts. 77

This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon. 87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." 103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112 Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.
 II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period. 127

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or
 (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional. 131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays. 135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought." 142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification." 145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board. 157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’" 181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189 It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage." 196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue," 200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:

....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216 This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to people the robust, uninhibited,
and wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage.221 (Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech. 225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague. 229 (Citations
omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner. 245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard. 247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases. 252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property. 260 This is consistent
with the fundamental right against deprivation of property without due process of law. 261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control. 276

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought." 278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties. 283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection. 285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917]) 318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.
 V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship. 323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature. 327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.
G.R. No. 164785 April 29, 2009

ELISEO F. SORIANO, Petitioner,

vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television
Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L.
LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, Respondents.

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

G.R. No. 165636 April 29, 2009

ELISEO F. SORIANO Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE,
JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO
IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication
Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M.
SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB Respondents.

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks
to nullify and set aside an order and a decision of the Movie and Television Review and
Classification Board (MTRCB) in connection with certain utterances he made in his television show,
Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan,
aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol
pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged
by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo
(INC),2 against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval,
who felt directly alluded to in petitioner’s remark, was then a minister of INC and a regular host of the
TV program Ang Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on
August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of
Ang Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16,
2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance
with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3,
Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII
of the MTRCB Rules of Procedure.5 The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse
themselves from hearing the case.6 Two days after, however, petitioner sought to withdraw7 his
motion for reconsideration, followed by the filing with this Court of a petition for certiorari and
prohibition,8 docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as
follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent
Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months
suspension from his program, "Ang Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.

SO ORDERED.9

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed
as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]

DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x
IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR

THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.10

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT
OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION
AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION
OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES
FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered
moot by the equally assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him and the
relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize
the MTRCB to issue preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the
Constitution or by statute.12 They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law.13 And in determining whether an agency has certain
powers, the inquiry should be from the law itself. But once ascertained as existing, the authority
given should be liberally construed.14
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of
the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this
authority stems naturally from, and is necessary for the exercise of, its power of regulation and
supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions, powers and
duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production,
x x x exhibition and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the board applying
contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its
people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime
such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above,
which empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for the x x x
exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the
BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or
broadcast by television."

Surely, the power to issue preventive suspension forms part of the MTRCB’s express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied
from such mandate. Any other construal would render its power to regulate, supervise, or discipline
illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary
step in an administrative investigation.15 And the power to discipline and impose penalties, if granted,
carries with it the power to investigate administrative complaints and, during such investigation, to
preventively suspend the person subject of the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under
PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR
provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case, and in
order to prevent or stop further violations or for the interest and welfare of the public, the Chairman
of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension
of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x
provided that the temporary/preventive order thus issued shall have a life of not more than twenty
(20) days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not
work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the
MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate
the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions
for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioner’s
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of
the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its
authority under the law. Far from it. The preventive suspension was actually done in furtherance of
the law, imposed pursuant, to repeat, to the MTRCB’s duty of regulating or supervising television
programs, pending a determination of whether or not there has actually been a violation. In the final
analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed,
albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the
MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to
functions within the literal confines of the law, would give the agency little leeway to operate, stifling
and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room
for flexibility in its operation. Sec. 3(k), we reiterate, provides, "To exercise such powers and
functions as may be necessary or incidental to the attainment of the purposes and objectives of this
Act x x x." Indeed, the power to impose preventive suspension is one of the implied powers of
MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are
implicit in the wordings or conferred by necessary or fair implication of the enabling act.17 As we held
in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined,
every particular power necessary for the exercise of one or the performance of the other is also
conferred by necessary implication.18 Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCB’s
authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered
ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner’s argument on the nullity of the preventive suspension order on the
ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in
response to a written notice, appeared before that Board for a hearing on private respondents’
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing,19 proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of
the IRR of PD 1986, preventive suspension shall issue "[a]ny time during the pendency of the case."
In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly
violated PD 198620 and of administrative complaints that had been filed against him for such
violation.21

At any event, that preventive suspension can validly be meted out even without a hearing. 22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he was unable to answer the criticisms coming from
the INC ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all persons
subject to legislation should be treated alike, under like circumstances and conditions both in the
privileges conferred and liabilities imposed."23 It guards against undue favor and individual privilege
as well as hostile discrimination.24 Surely, petitioner cannot, under the premises, place himself in the
same shoes as the INC ministers, who, for one, are not facing administrative complaints before the
MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language
similar to that which he used in his own, necessitating the MTRCB’s disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains temporarily gagged
and is unable to answer his critics, this does not become a deprivation of the equal protection
guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang
Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious
speech, adding that words like "putang babae" were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come within the pale
of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any particular
religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his
statements in a televised bible exposition program does not automatically accord them the character
of a religious discourse. Plain and simple insults directed at another person cannot be elevated to
the status of religious speech. Even petitioner’s attempts to place his words in context show that he
was moved by anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang
Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious
speech. We cannot accept that petitioner made his statements in defense of his reputation and
religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a
rival religious group. They simply illustrate that petitioner had descended to the level of name-calling
and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted
violation and the arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review
under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for
three months on the main ground that the decision violates, apart from his religious freedom, his
freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for
reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts
and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come
within the broad protection of the free speech and expression clause.25 Each method though,
because of its dissimilar presence in the lives of people and accessibility to children, tends to
present its own problems in the area of free speech protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of protection.26 Just as settled is the rule that restrictions,
be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation
of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for
sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means
official government restrictions on the press or other forms of expression in advance of actual
publication or dissemination.27 The freedom of expression, as with the other freedoms encased in the
Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public
interests, some forms of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially private
concern.28 In the oft-quoted expression of Justice Holmes, the constitutional guarantee "obviously
was not intended to give immunity for every possible use of language."29 From Lucas v. Royo comes
this line: "[T]he freedom to express one’s sentiments and belief does not grant one the license to
vilify in public the honor and integrity of another. Any sentiments must be expressed within the
proper forum and with proper regard for the rights of others."30

Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and
narrowly limited classes of speech that are harmful, the prevention and punishment of which has
never been thought to raise any Constitutional problems." In net effect, some forms of speech are
not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed
without running afoul of the freedom of speech clause. 32 A speech would fall under the unprotected
type if the utterances involved are "no essential part of any exposition of ideas, and are of such slight
social value as a step of truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality."33 Being of little or no value, there is, in dealing with or
regulating them, no imperative call for the application of the clear and present danger rule or the
balancing-of-interest test, they being essentially modes of weighing competing values, 34 or, with like
effect, determining which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-
value expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or "fighting words", i.e., those which by their very utterance inflict injury or
tend to incite an immediate breach of peace and expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the
average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the
Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of
facts has the unbridled discretion in determining what is "patently offensive." x x x What remains
clear is that obscenity is an issue proper for judicial determination and should be treated on a case
to case basis and on the judge’s sound discretion.35

Following the contextual lessons of the cited case of Miller v. California, 36 a patently offensive
utterance would come within the pale of the term obscenity should it appeal to the prurient interest of
an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that
to an average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x x.
Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang
itaas, o di ba!" may not constitute obscene but merely indecent utterances. They can be viewed as
figures of speech or merely a play on words. In the context they were used, they may not appeal to
the prurient interests of an adult. The problem with the challenged statements is that they were
uttered in a TV program that is rated "G" or for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children
could hardly be expected to have the same discernment. Without parental guidance, the unbridled
use of such language as that of petitioner in a television broadcast could corrupt impressionable
young minds. The term "putang babae" means "a female prostitute," a term wholly inappropriate for
children, who could look it up in a dictionary and just get the literal meaning, missing the context
within which it was used. Petitioner further used the terms, "ang gumagana lang doon yung ibaba,"
making reference to the female sexual organ and how a female prostitute uses it in her trade, then
stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in
context. They may be inquisitive as to why Sandoval is different from a female prostitute and the
reasons for the dissimilarity. And upon learning the meanings of the words used, young minds,
without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene,
if they take these words literally and use them in their own speech or form their own ideas on the
matter. In this particular case, where children had the opportunity to hear petitioner’s words, when
speaking of the average person in the test for obscenity, we are speaking of the average child, not
the average adult. The average child may not have the adult’s grasp of figures of speech, and may
lack the understanding that language may be colorful, and words may convey more than the literal
meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function
as such. In this sense, we find petitioner’s utterances obscene and not entitled to protection under
the umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the
Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said
statements were made in a medium easily accessible to children. With respect to the young minds,
said utterances are to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case
is veritably one of first impression, it being the first time that indecent speech communicated via
television and the applicable norm for its regulation are, in this jurisdiction, made the focal
point. Federal Communications Commission (FCC) v. Pacifica Foundation,37 a 1978 American
landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is
a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient
appeal component coming under the category of protected speech depending on the context within
which it was made, irresistibly suggesting that, within a particular context, such indecent speech may
validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered "filthy" words40 earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared
the language used as "patently offensive" and "indecent" under a prohibiting law, though not
necessarily obscene. FCC added, however, that its declaratory order was issued in a "special factual
context," referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the
audience. Acting on the question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to
wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US
Court, however, hastened to add that the monologue would be protected speech in other contexts,
albeit it did not expound and identify a compelling state interest in putting FCC’s content-based
regulatory action under scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected
speech that is content-based and that which is content-neutral. A content-based restraint is aimed at
the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the
time, place, and manner of the expression under well-defined standards tailored to serve a
compelling state interest, without restraint on the message of the expression. Courts subject content-
based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak,42 easily "reaches every home where there is a set [and
where] [c]hildren will likely be among the avid viewers of the programs therein shown"; second, the
broadcast was aired at the time of the day when there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his speech on a "G" or "for general patronage" rated
program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is
"[s]uitable for all ages," meaning that the "material for television x x x in the judgment of the BOARD,
does not contain anything unsuitable for children and minors, and may be viewed without adult
guidance or supervision." The words petitioner used were, by any civilized norm, clearly not suitable
for children. Where a language is categorized as indecent, as in petitioner’s utterances on a general-
patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography,43 false or misleading
advertisement,44 advocacy of imminent lawless action, and expression endangering national
security. But this list is not, as some members of the Court would submit, exclusive or carved in
stone. Without going into specifics, it may be stated without fear of contradiction that US decisional
law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize
exceptions to the rule against censorship in the past, this particular case constitutes yet another
exception, another instance of unprotected speech, created by the necessity of protecting the
welfare of our children. As unprotected speech, petitioner’s utterances can be subjected to restraint
or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that
his utterances must present a clear and present danger of bringing about a substantive evil the State
has a right and duty to prevent and such danger must be grave and imminent. 45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most permissive of
speech tests, would not avail him any relief, for the application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that
the printed or spoken words may not be subject to prior restraint or subsequent punishment unless
its expression creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit.46 Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in the context
of prosecutions for rebellion and other crimes involving the overthrow of government. 47 It was
originally designed to determine the latitude which should be given to speech that espouses anti-
government action, or to have serious and substantial deleterious consequences on the security and
public order of the community.48 The clear and present danger rule has been applied to this
jurisdiction.49 As a standard of limitation on free speech and press, however, the clear and present
danger test is not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a court to
release a defendant from liability the moment the doctrine is invoked, absent proof of imminent
catastrophic disaster.50 As we observed in Eastern Broadcasting Corporation, the clear and present
danger test "does not lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums."51

To be sure, the clear and present danger doctrine is not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and
even other evils which do not clearly undermine national security. Since not all evils can be
measured in terms of "proximity and degree" the Court, however, in several cases—Ayer
Productions v. Capulong52 and Gonzales v. COMELEC,53 applied the balancing of interests test.
Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate
Opinion that "where the legislation under constitutional attack interferes with the freedom of speech
and assembly in a more generalized way and where the effect of the speech and assembly in terms
of the probability of realization of a specific danger is not susceptible even of impressionistic
calculation,"54 then the "balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the
two conflicting interests demands the greater protection under the particular circumstances
presented. x x x We must, therefore, undertake the "delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and
individual interests competing for ascendancy in legislation which restricts expression, the court in
Douds laid the basis for what has been called the "balancing-of-interests" test which has found
application in more recent decisions of the U.S. Supreme Court. Briefly stated, the "balancing" test
requires a court to take conscious and detailed consideration of the interplay of interests observable
in a given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting
the individual’s freedom, and the social importance and value of the freedom so restricted, "are to be
judged in the concrete, not on the basis of abstractions," a wide range of factors are necessarily
relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and
importance of the specific aspect of the particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the
persons affected are few; (c) the value and importance of the public interest sought to be secured by
the legislation––the reference here is to the nature and gravity of the evil which Congress seeks to
prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and
necessary for the protection of such public interest; and (e) whether the necessary safeguarding of
the public interest involved may be achieved by some other measure less restrictive of the protected
freedom.55

This balancing of interest test, to borrow from Professor Kauper,56 rests on the theory that it is the
court’s function in a case before it when it finds public interests served by legislation, on the one
hand, and the free expression clause affected by it, on the other, to balance one against the other
and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the
public interest served by restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on
the basis that constitutional freedoms are not absolute, not even those stated in the free speech and
expression clause, and that they may be abridged to some extent to serve appropriate and important
interests.57 To the mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to
protect and promote the development and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of
his claim to free speech, the Court rules that the government’s interest to protect and promote the
interests and welfare of the children adequately buttresses the reasonable curtailment and valid
restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom
of speech or expression, for without the enjoyment of such right, a free, stable, effective, and
progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is
the right of the youth to their moral, spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987
Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to
provide protection to the youth against illegal or improper activities which may prejudice their general
well-being. The Article on youth, approved on second reading by the Constitutional Commission,
explained that the State shall "extend social protection to minors against all forms of neglect, cruelty,
exploitation, immorality, and practices which may foster racial, religious or other forms of
discrimination."58

Indisputably, the State has a compelling interest in extending social protection to minors against all
forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory mechanisms, protect their children’s minds from
exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact
enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of
nation-building.59 In the same way, the State is mandated to support parents in the rearing of the
youth for civic efficiency and the development of moral character.60

Petitioner’s offensive and obscene language uttered in a television broadcast, without doubt, was
easily accessible to the children. His statements could have exposed children to a language that is
unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect
and care for them, as parens patriae,61 constitute a substantial and compelling government interest
in regulating petitioner’s utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who,
because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive
language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s
written message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacifica’s
broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive
expression may be withheld from the young without restricting the expression at its source.
Bookstores and motion picture theaters, for example, may be prohibited from making indecent
material available to children. We held in Ginsberg v. New York that the government’s interest in the
"well-being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children may obtain
access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify
special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the
welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls
for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely will be among the avid
viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome
Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.62

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in
the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast
grounded on the following considerations: (1) the use of television with its unique accessibility to
children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3)
the "G" rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock
of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not
involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify
any sanction. x x x The [FFC’s] decision rested entirely on a nuisance rationale under which context
is all important. The concept requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be merely a
right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ We simply hold that
when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not
depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes
necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that
the State has the inherent prerogative, nay duty, to regulate and prevent should such action served
and further compelling state interests. One who utters indecent, insulting, or offensive words on
television when unsuspecting children are in the audience is, in the graphic language of FCC, a "pig
in the parlor." Public interest would be served if the "pig" is reasonably restrained or even removed
from the "parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language in Ang
Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was
passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which
requires prior permit or license before showing a motion picture or broadcasting a TV program. The
Board can classify movies and television programs and can cancel permits for exhibition of films or
television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and television
shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking
through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner’s postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our courts. As far back as 1921,
we upheld this setup in Sotto vs. Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be regulated in
order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please,
regardless of its character."63

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and television
programs or parts of either are fit for public consumption. It decides what movies are "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people," and what "tend to incite subversion, insurrection, rebellion or sedition," or
"tend to undermine the faith and confidence of the people in their government and/or duly constituted
authorities," etc. Moreover, its decisions are executory unless stopped by a court.64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of review
and prior approval of MTRCB extends to all television programs and is valid despite the freedom of
speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB
since they are required to get a permit before they air their television programs. Consequently, their
right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice
Dante O. Tinga, government regulations through the MTRCB became "a necessary evil" with the
government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry
as competing broadcasters will interfere or co-opt each other’s signals. In this scheme, station
owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of
speech in radio and television programs and impliedly agreed that said right may be subject to prior
restraint—denial of permit or subsequent punishment, like suspension or cancellation of permit,
among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to
continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB
for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on the evening of August
10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986
and the remedies that may be availed of by the aggrieved private party under the provisions on libel
or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in
profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked,
the sanction imposed is not per se for petitioner’s exercise of his freedom of speech via television,
but for the indecent contents of his utterances in a "G" rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom
of speech to regulation under PD 1986 and its IRR as television station owners, program producers,
and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the
suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It
is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit
or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time "G" rated TV program;
it does not bar future speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While not on all
fours, the Court, in MTRCB,66 sustained the power of the MTRCB to penalize a broadcast company
for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD
1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority
were it to regulate and even restrain the prime-time television broadcast of indecent or obscene
speech in a "G" rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, "the freedom of television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media." The MTRCB, as a regulatory agency, must have
the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be
limited to mere fines. Television broadcasts should be subject to some form of regulation,
considering the ease with which they can be accessed, and violations of the regulations must be met
with appropriate and proportional disciplinary action. The suspension of a violating television
program would be a sufficient punishment and serve as a deterrent for those responsible. The
prevention of the broadcast of petitioner’s television program is justified, and does not constitute
prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and
craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained why petitioner’s undue reliance on the religious
freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his
program. The Court sees no need to address anew the repetitive arguments on religious freedom.
As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no
way a religious speech. Parenthetically, petitioner’s attempt to characterize his speech as a
legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing
evidently as an afterthought that this was his method of refuting the alleged distortion of his
statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television
program, the word simply came out as profane language, without any warning or guidance for
undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal protection of the
law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There
is no need to further delve into the fact that petitioner was afforded due process when he attended
the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly
discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986
does not provide for the range of imposable penalties that may be applied with respect to violations
of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the
following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
delegate its legislative power to the two other branches of the government, subject to the exception
that local governments may over local affairs participate in its exercise. What cannot be delegated is
the authority under the Constitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it leaves the hands of the legislature.
To determine whether or not there is an undue delegation of legislative power, the inquiry must be
directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its
functions when it describes what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way in which the legislative process
can go forward. A distinction has rightfully been made between delegation of power to make laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be done,
and delegation of authority or discretion as to its execution to be exercised under and in pursuance
of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as
denying the legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines promulgate supplemental rules and
regulations.67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s protestation
about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a
range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the
IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree,
went beyond the terms of the law.

Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first assumption
being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose,
penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct
conferment of power and functions, is charged with supervising and regulating, granting, denying, or
canceling permits for the exhibition and/or television broadcast of all motion pictures, television
programs, and publicity materials to the end that no such objectionable pictures, programs, and
materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec.
3(k) of the decree authorizing the MTRCB "to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]." As earlier
explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a
meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as
may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v.
National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred. x x x [W]hen
the statute does not specify the particular method to be followed or used by a government agency in
the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable
method to carry out its function.68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take
effective punitive action for violation of the law sought to be enforced. And would it not be logical too
to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power "[to] promulgate such rules and regulations as are necessary or
proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x
x." And Chapter XIII, Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the

immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles
pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations
governing motion pictures, television programs, and related promotional materials shall be penalized
with suspension or cancellation of permits and/or licenses issued by the Board and/or with the
imposition of fines and other administrative penalty/penalties. The Board recognizes the existing
Table of Administrative Penalties attached without prejudice to the power of the Board to amend it
when the need arises. In the meantime the existing revised Table of Administrative Penalties shall
be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ
such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to
be applied to determine whether there have been statutory breaches. The MTRCB may evaluate
motion pictures, television programs, and publicity materials "applying contemporary Filipino cultural
values as standard," and, from there, determine whether these audio and video materials "are
objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x" and
apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details
in the enforcement of a particular statute.69 The grant of the rule-making power to administrative
agencies is a relaxation of the principle of separation of powers and is an exception to the non-
delegation of legislative powers.70 Administrative regulations or "subordinate legislation" calculated to
promote the public interest are necessary because of "the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of
administering the law."71 Allowing the MTRCB some reasonable elbow-room in its operations and, in
the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an
appropriate issuance, administrative penalties with due regard for the severity of the offense and
attending mitigating or aggravating circumstances, as the case may be, would be consistent with its
mandate to effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD
1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly
the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January
1, 1999 is the Board empowered to suspend the program host or even to prevent certain people
from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such
television programs or cancel permits for exhibition, but it may not suspend television personalities,
for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation
beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the
letter and spirit of PD 1986 will be considered to be within the decree’s penal or disciplinary
operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged
with violating the statute and for whom the penalty is sought. Thus, the MTRCB’s decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued
pursuant to said decision must be modified. The suspension should cover only the television
program on which petitioner appeared and uttered the offensive and obscene language, which
sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioner’s flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute
freedoms. To say "any act that restrains speech should be greeted with furrowed brows" is not to say
that any act that restrains or regulates speech or expression is per se invalid. This only recognizes
the importance of freedoms of speech and expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is
hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of
THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the
instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.
G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

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

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

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

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
 The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

 (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;
 (c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
 (d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:
 (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test." 10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
 a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
 tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a public park that is the
Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a specific public place – is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or
 modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, -- even more so than on the other
departments – rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x
x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public
place where and the time when it will take
place. If it were a private place, only the
consent of the owner or the one entitled to its
legal possession is required. Such application
should be filed well ahead in time to enable the
public official concerned to appraise whether
there may be valid objections to the grant of
the permit or to its grant but at another public
place. It is an indispensable condition to such
refusal or modification that the clear and
present danger test be the standard for the
decision reached. If he is of the view that there
is such an imminent and grave danger of a
substantive evil, the applicants must be heard
on the matter. Thereafter, his decision,
whether favorable or adverse, must be
transmitted to them at the earliest opportunity.
Thus if so minded, they can have recourse to
the proper judicial authority.
Sec. 4. Permit when required and when not
required.-- A written permit shall be required
for any person or persons to organize and hold
a public assembly in a public place. However,
no permit shall be required if the public
assembly shall be done or made in a freedom
park duly established by law or ordinance or in
private property, in which case only the
consent of the owner or the one entitled to its
legal possession is required, or in the campus
of a government-owned and operated
educational institution which shall be subject to
the rules and regulations of said educational
institution. Political meetings or rallies held
during any election campaign period as
provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing
and shall include the names of the
leaders or organizers; the purpose of
such public assembly; the date, time
and duration thereof, and place or
streets to be used for the intended
activity; and the probable number of
persons participating, the transport and
 the public address systems to be used.

(b) The application shall incorporate

the duty and responsibility of applicant
under Section 8 hereof.

(c) The application shall be filed with

the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least
five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application,

which must be duly acknowledged in
writing, the office of the city or
municipal mayor shall cause the same
to immediately be posted at a
conspicuous place in the city or
municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or

any official acting in his behalf to issue
or grant a permit unless there is clear
and convincing evidence that the
public assembly will create a clear and
present danger to public order, public
safety, public convenience, public
morals or public health.

(b) The mayor or any official acting in

his behalf shall act on the application
within two (2) working days from the
date the application was filed, failing
which, the permit shall be deemed
granted. Should for any reason the
mayor or any official acting in his
behalf refuse to accept the application
for a permit, said application shall be
posted by the applicant on the
premises of the office of the mayor and
shall be deemed to have been filed.

(c) If the mayor is of the view that there

is imminent and grave danger of a
substantive evil warranting the denial
or modification of the permit, he shall
immediately inform the applicant who
 must be heard on the matter.

(d) The action on the permit shall be in

writing and served on the applica[nt]
within twenty-four hours.

(e) If the mayor or any official acting in

his behalf denies the application or
modifies the terms thereof in his
permit, the applicant may contest the
decision in an appropriate court of law.

(f) In case suit is brought before the

Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the
Intermediate Appellate Court, its
decisions may be appealed to the
appropriate court within forty-eight (48)
hours after receipt of the same. No
appeal bond and record on appeal
shall be required. A decision granting
such permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this

section shall be decided within twenty-
four (24) hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the executive
judge for disposition or, in his absence,
to the next in rank.

(h) In all cases, any decision may be

appealed to the Supreme Court.

(i) Telegraphic appeals to be followed

by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common

interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.
 xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
1avvphil.net

agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;
 (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightened scrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.
G.R. No. 119673 July 26, 1996

IGLESIA NI CRISTO, (INC.), petitioner,

vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND
TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p

This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent
Board of Review for Moving Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled
"Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The
program presents and propagates petitioner's religious beliefs, doctrines and practices often times in
comparative studies with other religions.

Sometime in the months of September, October and November 1992 petitioner submitted to the
respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program
Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing
on the ground that they "offend and constitute an attack against other religions which is expressly
prohibited by law."

Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992,
it appealed to the Office of the President the classification of its TV Series No. 128. It succeeded in
its appeal for on December 18, 1992, the Office of the President reversed the decision of the
respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-
14280, with the RTC, NCR Quezon City.1 Petitioner alleged that the respondent Board acted without
jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV
program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their
Answer, respondent Board invoked its power under PD No. 1986 in relation to Article 201 of the
Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary
injunction. The parties orally argued and then marked their documentary evidence. Petitioner
submitted the following as its exhibits, viz.:

(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September
9, 1992 action on petitioner's Series No. 115 as follows:2

REMARKS:

There are some inconsistencies in the particular program as it is very surprising for
this program to show series of Catholic ceremonies and also some religious sects
and using it in their discussion about the bible. There are remarks which are direct
criticism which affect other religions.

Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its
September 11, 1992 subsequent action on petitioner's Series No. 115 as follows: 3

REMARKS:

This program is criticizing different religions, based on their own interpretation of the
Bible.

We suggest that the program should delve on explaining their own faith and beliefs
and avoid attacks on other faith.

(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9,
1992 action on petitioner's Series No. 119, as follows:4

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20,
1992 action on petitioner's Series No. 121 as follows:5

REMARKS:

I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that they are right and
the rest are wrong, which they clearly present in this episode.

(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November
20, 1992 action on petitioner's Series No. 128 as follows:6

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic and Protestant's
beliefs.

We suggest a second review.

(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.7

(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation.8

(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary
Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the decision
 of the respondent Board which x-rated the showing of petitioner's Series No. 129.
The letter reads in part:

xxx xxx xxx

The television episode in question is protected by the constitutional

guarantee of free speech and expression under Article III, section 4 of
the 1987 Constitution.

We have viewed a tape of the television episode in question, as well

as studied the passages found by MTRCB to be objectionable and
we find no indication that the episode poses any clear and present
danger sufficient to limit the said constitutional guarantee.

(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board
x-rating petitioner's Series No. 128.

On its part, respondent Board submitted the following exhibits, viz.:

(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December
18, 1992 allowing the showing of Series No. 128 under parental guidance.

(2) Exhibit "2," which is Exhibit "G" of petitioner.

(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to
the Christian Era Broadcasting Service which reads in part:

xxx xxx xxx

In the matter of your television show "Ang Iglesia ni Cristo" Series No.
119, please be informed that the Board was constrained to deny your
show a permit to exhibit. The material involved constitute an attack
against another religion which is expressly prohibited by law. Please
be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioner's bond o P10,000.00.

The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.9 The pre-trial
briefs show that the parties' evidence is basically the evidence they submitted in the hearing of the
issue of preliminary injunction. The trial of the case was set and reset several times as the parties
tried to reach an amicable accord. Their efforts failed and the records show that after submission of
memoranda, the trial court rendered a Judgment, 10 on December 15, 1993, the dispositive portion of
which reads:

xxx xxx xxx

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review

for Moving Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of "Ang Iglesia ni Cristo" program.
 Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing "Ang Iglesia ni Cristo" program.

SO ORDERED.

Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The respondent Board opposed the
motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It
ordered:13

xxx xxx xxx

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Court's Order dated December 15, 1993, directing petitioner to refrain from offending
and attacking other existing religions in showing "Ang Iglesia ni Cristo" program is
hereby deleted and set aside. Respondents are further prohibited from requiring
petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program
"Ang Iglesia ni Cristo."

Respondent Board appealed to the Court of Appeals after its motion for reconsideration was
denied. 14

On March 5, 1995, the respondent Court of Appeals15 reversed the trial court. It ruled that: (1) the
respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and
(2) the respondent Board did not act with grave abuse of discretion when it denied permit for the
exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials
constitute an attack against another religion. It also found the series "indecent, contrary to law and
contrary to good customs.

In this petition for review on certiorari under Rule 45, petitioner raises the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND
EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT

HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG
IGLESIA NI CRISTO" PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT
DANGER.

III
 WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR
RELIGIOUS PROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to
review petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the airing of petitioner's religious program,
series Nos. 115, 119 and 121, for the reason that they constitute an attack against other religions
and that they are indecent, contrary to law and good customs.

The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section
3 pertinently provides:

Sec. 3 Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution for television broadcast or for general viewing, imported or
produced in the Philippines and in the latter case, whether they be for local viewing
or for export.

c) To approve, delete objectionable portion from and/or prohibit the importation,

exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast of the motion pictures, television programs and publicity materials, subject
of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or

sedition against the State, or otherwise threaten the economic and/or
political stability of the State;

ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

 iv) Those which serve no other purpose but to satisfy the market for
violence or pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-

judicial tribunal, or pertain to matters which are subjudice in nature
(emphasis ours).

The law gives the Board the power to screen, review and examine all "television programs."
By the clear terms of the law, the Board has the power to "approve, delete . . . and/or prohibit
the . . . exhibition and/or television broadcast of . . . television programs . . ." The law also
directs the Board to apply "contemporary Filipino cultural values as standard" to determine
those which are objectionable for being "immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime."

Petitioner contends that the term "television program" should not include religious programs like its
program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article
III of the Constitution which guarantees that "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."

We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this preferred status well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good." 16 We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the belief
is confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the

hereafter. He may indulge his own theories about life and death; worship any god he
chooses, or none at all; embrace or reject any religion; acknowledge the divinity of
God or of any being that appeals to his reverence; recognize or deny the immortality
of his soul -- in fact, cherish any religious conviction as he and he alone sees fit.
However absurd his beliefs may be to others, even if they be hostile and heretical to
the majority, he has full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do so. Religion, after all,
 is a matter of faith. "Men may believe what they cannot prove." Every one has a right
to his beliefs and he may not be called to account because he cannot prove what he
believes.

(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great
as this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is
error to think that the mere invocation of religious freedom will stalemate the State
and render it impotent in protecting the general welfare. The inherent police power
can be exercised to prevent religious practices inimical to society. And this is true
even if such practices are pursued out of sincere religious conviction and not merely
for the purpose of evading the reasonable requirements or prohibitions of the law.

Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom

terminated disabilities, it did not create new privileges. It gave religious liberty, not
civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma.

Accordingly, while one has lull freedom to believe in Satan, he may not offer the
object of his piety a human sacrifice, as this would be murder. Those who literally
interpret the Biblical command to "go forth and multiply" are nevertheless not allowed
to contract plural marriages in violation of the laws against bigamy. A person cannot
refuse to pay taxes on the ground that it would be against his religious tenets to
recognize any authority except that of God alone. An atheist cannot express in his
disbelief in act of derision that wound the feelings of the faithful. The police power
can validly asserted against the Indian practice of the suttee, born of deep religious
conviction, that calls on the widow to immolate herself at the funeral pile of her
husband.

We thus reject petitioner's postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind
but history counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our country is still not safe
from the recurrence of this stultifying strife considering our warring religious beliefs and the
fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to settle the
near century old strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of
weird religious cults espousing violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to subject any
act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave
its rational exercise to the irrationality of man. For when religion divides and its exercise destroys,
the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed
the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The
records show that the respondent Board disallowed the program series for "attacking" other
religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for ". . . criticizing different religions, based on their own
interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-
rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible
that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . .
for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey can not tell,
dictate any other religion that they are right and the rest are wrong
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . .
outrages Catholic and Protestant's beliefs." On second review, it was x-rated because of its
"unbalanced interpretations of some parts of the bible."18 In sum, the respondent Board x-rated
petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's controversial
biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate
court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech,
including religious speech. Hence, any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows.19 It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck
down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking"
either religions, especially the Catholic church. An examination of the evidence, especially Exhibits
"A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are mere criticisms of some of the
deeply held dogmas and tenets of other religions. The videotapes were not viewed by the
respondent court as they were not presented as evidence. Yet they were considered by the
respondent court as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of
speech and interferes with its right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, so viz.: 20

xxx xxx xxx

In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts
to exaggeration, to vilification of men who have been, or are prominent in church or
state or even to false statements. But the people of this nation have ordained in the
light of history that inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of
the citizens of democracy.

The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it
against an attack by another religion. Religious dogmas and beliefs are often at war and to
 preserve peace among their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious
differences, the State enjoys no banquet of options. Neutrality alone is its fixed and
immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia
ni Cristo simply because it attacks other religions, even if said religion happens to be the
most numerous church in our country. In a State where there ought to be no difference
between the appearance and the reality of freedom of religion, the remedy against bad
theology is better theology. The bedrock of freedom of religion is freedom of thought and it is
best served by encouraging the marketplace of dueling ideas. When the luxury of time
permits, the marketplace of ideas demands that speech should be met by more speech for it
is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.

Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating
the religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is
not among the grounds to justify an order prohibiting the broadcast of petitioner's television program.
The ground "attack against another religion" was merely added by the respondent Board in its
Rules. 21 This rule is void for it runs smack against the hoary doctrine that administrative rules and
regulations cannot expand the letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize" attack against any religion" as a ground
allegedly ". . . because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures,
television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of the
Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion." We
respectfully disagree for it is plain that the word "attack" is not synonymous with the word "offend."
Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to justify prior
censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included
"attack against any religion" as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view.

Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the
Senate, Neptali Gonzales explained:

xxx xxx xxx

However, the question whether the BRMPT (now MTRCB) may preview and censor
the subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision
of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: "immoral, indecent, contrary to law and/or good customs, injurious
to the prestige of the Republic of the Philippines or its people or with dangerous
tendency to encourage the commission of violence, or of a wrong" as determined by
the Board, "applying contemporary Filipino cultural values as standard." As stated,
the intention of the Board to subject the INC's television program to "previewing and
censorship is prompted by the fact that its religious program makes mention of
beliefs and practices of other religion." On the face of the law itself, there can
conceivably be no basis for censorship of said program by the Board as much as the
alleged reason cited by the Board does not appear to he within the contemplation of
the standards of censorship set by law. (Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and
present danger rule. In American Bible Society v. City of Manila, 22 this Court held: "The constitutional
guaranty of free exercise and enjoyment of religious profession and worship carries with it the right
to disseminate religious information. Any restraint of such right can be justified like other restraints
on freedom of expression on the ground that there is a clear and present danger of any substantive
evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, 23 we
further ruled that ". . . it is only where it is 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."

The records show that the decision of the respondent Board, affirmed by the respondent appellate
court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is no showing whatsoever of
the type of harm the tapes will bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears
but only by the showing of a substantive and imminent evil which has taken the life of a reality
already on ground.

It is suggested that we re-examine the application of clear and present danger rule to the case at
bar. In the United States, it is true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US,24 as follows: ". . .
the question in every case is whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent." Admittedly, the test was originally designed to determine the
latitude which should be given to speech that espouses anti-government action. Bannered by
Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when its
umbrella was used to protect speech other than subversive speech.25 Thus, for instance, the test was
applied to annul a total ban on labor picketing. 26 The use of the test took a downswing in the 1950's
when the US Supreme Court decided Dennis v. United States involving communist conspiracy. 27 In
Dennis, the components of the test were altered as the High Court adopted Judge Learned Hand's
formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger." The
imminence requirement of the test was thus diminished and to that extent, the protection of the rule
was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg v.
Ohio,28 when the High Court restored in the test the imminence requirement, and even added an
intent requirement which according to a noted commentator ensured that only speech directed at
inciting lawlessness could be punished.29 Presently in the United States, the clear and present
danger test is not applied to protect low value speeches such as obscene speech, commercial
speech and defamation. Be that as it may, the test is still applied to four types of speech: speech
that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial. 30 Hence, even following the drift of
American jurisprudence, there is reason to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb tenribly.

It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar
because the issue involves the content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal
connection between the speech and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their
speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its
sulphur will bring about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to
whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries
of protected speech or expression is a judicial function which cannot be arrogated by an
administrative body such as a Board of Censors." He submits that a "system of prior restraint
may only be validly administered by judges and not left to administrative agencies. "The same
submission is made by Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its
seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual
Enterprise v. Day 31 By 1965, the US Supreme Court in Freedman v. Maryland32 was ready to hold
that "the teaching of cases is that, because only a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression only a procedure requiring a judicial
determination suffices to impose a valid final restraint." 33

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV programs
and enforce its decision subject to review by our courts. As far back as 1921, we upheld this set-up
in Sotto vs. Ruiz, 34 viz.:

The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons posses no absolute right to put into the
mail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and other publications from the mails,
in the exercise of executive power, is extremely delicate in nature and can only be
justified where the statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object should be not to
interfere with the freedom of the press or with any other fundamental right of the
people. This is the more true with reference to articles supposedly libelous than to
other particulars of the law, since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action
of the Director of Posts must be subject to revision by the courts in case he had
abused his discretion or exceeded his authority. (Ex parte Jackson [1878], 96 U.S.,
727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing
Co. vs. Murray [1916]. 23 - Fed., 773)

As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is
in favor of the correctness of his action. The rule is (and we go only to those cases
coming from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the Director
of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne
[1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs.
Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909,
announcing a somewhat different doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether or
not courts alone are competent to decide whether speech is constitutionally protected. 35 The
 issue involves highly arguable policy considerations and can be better addressed by our
legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is
affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No
costs.

SO ORDERED.
G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

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

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.
x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

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

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

x-----------------------x
G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

 q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
 xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures. 13 But the
Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator. 20 As
such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They
express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is
that the element of "engaging in a business" is necessary to constitute the illegal cybersex. 24 The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam. 25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography. 29 The Court
weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

 xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and

(cc) The commercial electronic communication does not purposely include

misleading information in any part of the message in order to induce the recipients to
read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even where the offended parties happened
to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion
of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a

sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.
 (b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single
word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or
interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking
sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal
profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s
privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of
copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link
to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions
of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a person’s reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally
protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level
of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While
this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.74 With the exception of the crimes
of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand
pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good. 82 To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek
to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." 96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test mandates adequate
1avvphi1

guidelines or limitations in the law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time;

and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

 g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for
six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section

4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:
 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.

SO ORDERED.
 SECOND DIVISION

[G.R. NOS. 158786 & 158789 : October 19, 2007]

TOYOTA MOTOR PHILS. CORP. WORKERS ASSOCIATION (TMPCWA), ED

CUBELO, EDWIN ALARANA, ALEX ALEJO, ERWIN ALFONSO, MELVIN APOSTOL,
DANIEL AROLLADO, DOMINADOR ARRIOLA, LESTER ATUN, ROLANDO
BALUYOT, RODERICK BAYANI, ABEL BERCES, BENNY BERING, MELCHOR
BLANCO, JERRY BOLOCON, ELMER BULAN, NELSON CABAHUG, JESSIE
CABATAY, MARCELO CABEZAS, ROQUE CANDELARIO, JR., LORENZO
CARAQUEO, DENNIS CARINGAL, GIENELL CASABA, CHRISTOPHER CATAPUSAN,
RICO CATRAL, JULIUS COMETA, JAY ANTONIO CORAL, REYNALDO CUEVAS,
BENIGNO DAVID, JR., JOEY DE GUZMAN, LEONARDO DE LEON, ROGELIO DELOS
SANTOS, JOSELITO DE OCAMPO, FRANK MANUEL DIA, ANTONIO DIMAYUGA,
ARMANDO ERCILLO, DELMAR ESPADILLA, DENNIS ESPELOA, JASON
FAJILAGUTAN, JOHN FAJURA, MELENCIO FRANCO, DEXTER FULGAR, EDUARDO
GADO, ERWIN GALANG, ROBIN GARCES, ARIEL GARCIA, RONALD GASPI,
ANGELO GAVARRA, REYNALDO GOJAR, EDGAR HILANGA, EUGENE JAY
HONDRADA, ALEJANDRO IMPERIAL, FERDINAND JAEN, JOEY JAVILLONAR,
BASILIO LAQUI, ALBERTO LOMBOY, JUDE JONOBELL LOZADA, JOHNNY
LUCIDO, ROMMEL MACALINDONG, NIXON MADRAZO, ROGELIO MAGISTRADO,
JR., PHILIP JOHN MAGNAYE, ALLAN JOHN MALABANAN, ROLANDO MALALUAN,
JR., PAULINO MALEON, MANUEL MANALO, JR., JONAMAR MANAOG, JOVITO
MANECLANG, BAYANI MANGUIL, JR., CARLITO MARASIGAN, ROMMEL
MARIANO, BOBIT MENDOZA, ERICSON MONTERO, MARLAW MONTERO, EDWIN
NICANOR, RODERICK NIERVES, LOLITO NUNEZ, FELIMON ORTIZ, EDWIN
PECAYO, ERWIN PENA, JOWALD PENAMANTE, JORGE POLUTAN, EDDIE RAMOS,
ROLANDO REYES, PHILIP ROXAS, DAVID SALLAN, JR., BERNARDO SALVADOR,
BALDWIN SAN PABLO, JEFFREY SANGALANG, BERNABE SAQUILABON, ALEX
SIERRA, ROMUALDO SIMBORIO, EDWIN TABLIZO, PETRONIO TACLAN, JR.,
RODEL TOLENTINO, ROMMEL TOLENTINO, GRANT ROBERT TORAL, FEDERICO
TORRES, JR., EMANNUEL TULIO, NESTOR UMITEN, JR., APOLLO VIOLETA, SR.,
DOMINADOR ZAMORA, JR., ROMMEL ARCETA, ANTONIO BORSIGUE, EMILIO
COMPLETO, RANDY CONSIGNADO, BASILIO DELA CRUZ, ALEXANDER ESTEVA,
NIKKO FRANCO, RODEL GAMIT, ROBERTO GONZALES, PHILIP JALEA, JOEY
LLANERA, GERONIMO LOPEZ, RUEL MANEGO, EDWIN MANZANILLA, KENNETH
NATIVIDAD, LARRY ORMILLA, CORNELIO PLATON, PAUL ARTHUR SALES,
ALEJANDRO SAMPANG, LAURO SULIT, ROLANDO TOMAS, JOSE ROMMEL
TRAZONA, MICHAEL TEDDY YANGYON, MAXIMINO CRUZ, VIRGILIO
COLANDOG, ROMMEL DIGMA, JOSELITO HUGO, and RICKY
CHAVEZ, Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION, (NLRC-
2ND DIVISION), HON. COMMISSIONERS: VICTORINO CALAYCAY, ANGELITA
GACUTAN, and RAUL AQUINO, TOYOTA MOTOR PHILIPPINES CORPORATION,
TAKESHI FUKUDA, and DAVID GO, Respondents,

[G.R. NOS. 158798-99]

TOYOTA MOTOR PHILIPPINES CORPORATION, Petitioner, v. TOYOTA MOTOR

PHILIPPINES CORP. WORKERS ASSOCIATION (TMPCWA), Respondent.
 DECISION

VELASCO, JR., J.:

The Case

In the instant petition under Rule 45 subject of G.R. NOS. 158786 and 158789, Toyota
Motor Philippines Corporation Workers Association (Union) and its dismissed officers
and members seek to set aside the February 27, 2003 Decision1 of the Court of Appeals
(CA) in CA-G.R. SP Nos. 67100 and 67561, which affirmed the August 9, 2001
Decision2 and September 14, 2001 Resolution3 of the National Labor Relations
Commission (NLRC), declaring illegal the strikes staged by the Union and upholding the
dismissal of the 227 Union officers and members.

On the other hand, in the related cases docketed as G.R. NOS. 158798-99, Toyota
Motor Philippines Corporation (Toyota) prays for the recall of the award of severance
compensation to the 227 dismissed employees, which was granted under the June 20,
2003 CA Resolution4 in CA-G.R. SP Nos. 67100 and 67561.

In view of the fact that the parties are petitioner/s and respondent/s and vice-versa in
the four (4) interrelated cases, they will be referred to as simply the Union and Toyota
hereafter.

The Facts

The Union is a legitimate labor organization duly registered with the Department of
Labor and Employment (DOLE) and is the sole and exclusive bargaining agent of all
Toyota rank and file employees.5

Toyota, on the other hand, is a domestic corporation engaged in the assembly and sale
of vehicles and parts.6 It is a Board of Investments (BOI) participant in the Car
Development Program and the Commercial Vehicle Development Program. It is likewise
a BOI-preferred non-pioneer export trader of automotive parts and is under the
"Special Economic Zone Act of 1995." It is one of the largest motor vehicle
manufacturers in the country employing around 1,400 workers for its plants in Bicutan
and Sta. Rosa, Laguna. It is claimed that its assets amount to PhP 5.525 billion, with
net sales of PhP 14.646 billion and provisions for income tax of PhP 120.9 million.

On February 14, 1999, the Union filed a petition for certification election among the
Toyota rank and file employees with the National Conciliation and Mediation Board
(NCMB), which was docketed as Case No. NCR-OD-M-9902-001. Med-Arbiter Ma.
Zosima C. Lameyra denied the petition, but, on appeal, the DOLE Secretary granted the
Union's prayer, and, through the June 25, 1999 Order, directed the immediate holding
of the certification election.7

After Toyota's plea for reconsideration was denied, the certification election was
conducted. Med-Arbiter Lameyra's May 12, 2000 Order certified the Union as the sole
and exclusive bargaining agent of all the Toyota rank and file employees. Toyota
challenged said Order via an appeal to the DOLE Secretary.8
In the meantime, the Union submitted its Collective Bargaining Agreement (CBA)
proposals to Toyota, but the latter refused to negotiate in view of its pending appeal.
Consequently, the Union filed a notice of strike on January 16, 2001 with the NCMB,
docketed as NCMB-NCR-NS-01-011-01, based on Toyota's refusal to bargain. On
February 5, 2001, the NCMB-NCR converted the notice of strike into a preventive
mediation case on the ground that the issue of whether or not the Union is the
exclusive bargaining agent of all Toyota rank and file employees was still unresolved by
the DOLE Secretary.

In connection with Toyota's appeal, Toyota and the Union were required to attend a
hearing on February 21, 2001 before the Bureau of Labor Relations (BLR) in relation to
the exclusion of the votes of alleged supervisory employees from the votes cast during
the certification election. The February 21, 2001 hearing was cancelled and reset to
February 22, 2001. On February 21, 2001, 135 Union officers and members failed to
render the required overtime work, and instead marched to and staged a picket in front
of the BLR office in Intramuros, Manila.9 The Union, in a letter of the same date, also
requested that its members be allowed to be absent on February 22, 2001 to attend the
hearing and instead work on their next scheduled rest day. This request however was
denied by Toyota.

Despite denial of the Union's request, more than 200 employees staged mass actions
on February 22 and 23, 2001 in front of the BLR and the DOLE offices, to protest the
partisan and anti-union stance of Toyota. Due to the deliberate absence of a
considerable number of employees on February 22 to 23, 2001, Toyota experienced
acute lack of manpower in its manufacturing and production lines, and was unable to
meet its production goals resulting in huge losses of PhP 53,849,991.

Soon thereafter, on February 27, 2001, Toyota sent individual letters to some 360
employees requiring them to explain within 24 hours why they should not be dismissed
for their obstinate defiance of the company's directive to render overtime work on
February 21, 2001, for their failure to report for work on February 22 and 23, 2001,
and for their participation in the concerted actions which severely disrupted and
paralyzed the plant's operations.10 These letters specifically cited Section D, paragraph
6 of the Company's Code of Conduct, to wit:

Inciting or participating in riots, disorders, alleged strikes, or concerted actions

detrimental to [Toyota's] interest.

1st offense - dismissal.11

Meanwhile, a February 27, 2001 Manifesto was circulated by the Union which urged its
members to participate in a strike/picket and to abandon their posts, the pertinent
portion of which reads, as follows:

YANIG sa kanyang komportableng upuan ang management ng TOYOTA. And dating

takot, kimi, at mahiyaing manggagawa ay walang takot na nagmartsa at nagprotesta
laban sa desperadong pagtatangkang baguhin ang desisyon ng DOLE na pabor sa
UNYON. Sa tatlong araw na protesta, mahigit sa tatlong daang manggagawa ang
lumahok.
 xxx

HANDA na tayong lumabas anumang oras kung patuloy na ipagkakait ng

management ang CBA. Oo maari tayong masaktan sa welga. Oo, maari tayong
magutom sa piketlayn. Subalit may pagkakaiba ba ito sa unti-unting pagpatay sa
atin sa loob ng 12 taong makabaling likod ng pagtatrabaho? Ilang taon na lang ay
magkakabutas na ang ating mga baga sa mga alipato at usok ng welding. Ilang taon na
lang ay marupok na ang ating mga buto sa kabubuhat. Kung dumating na ang
panahong ito at wala pa tayong CBA, paano na? Hahayaan ba nating ang kumpanya
lang ang makinabang sa yamang likha ng higit sa isang dekadang pagpapagal natin?

HUWAG BIBITIW SA NASIMULANG TAGUMPAY!

PAIGTINGIN ANG PAKIKIBAKA PARA SA ISANG MAKATARUNGANG CBA!

HIGIT PANG PATATAGIN ANG PAGKAKAISA NG MGA MANGGAGAWA SA

TOYOTA!12 (Emphasis supplied.)

On the next day, the Union filed with the NCMB another notice of strike docketed as
NCMB-NCR-NS-02-061-01 for union busting amounting to unfair labor practice.

On March 1, 2001, the Union nonetheless submitted an explanation in compliance with

the February 27, 2001 notices sent by Toyota to the erring employees. The Union
members explained that their refusal to work on their scheduled work time for two
consecutive days was simply an exercise of their constitutional right to peaceably
assemble and to petition the government for redress of grievances. It further argued
that the demonstrations staged by the employees on February 22 and 23, 2001 could
not be classified as an illegal strike or picket, and that Toyota had already condoned the
alleged acts when it accepted back the subject employees.13

Consequently, on March 2 and 5, 2001, Toyota issued two (2) memoranda to the
concerned employees to clarify whether or not they are adopting the March 1, 2001
Union's explanation as their own. The employees were also required to attend an
investigative interview,14 but they refused to do so.

On March 16, 2001, Toyota terminated the employment of 227 employees15 for
participation in concerted actions in violation of its Code of Conduct and for misconduct
under Article 282 of the Labor Code. The notice of termination reads:

After a careful evaluation of the evidence on hand, and a thorough assessment of your
explanation, TMP has concluded that there are overwhelming reasons to terminate your
services based on Article 282 of the Labor Code and TMP's Code of Conduct.

Your repeated absences without permission on February 22 to 23, 2001 to participate in

a concerted action against TMP constitute abandonment of work and/or very serious
misconduct under Article 282 of the Labor Code.

The degree of your offense is aggravated by the following circumstances:

1. You expressed to management that you will adopt the union's letter dated March 1,
2001, as your own explanation to the charges contained in the Due Process Form dated
February 27, 2001. It is evident from such explanation that you did not come to work
because you deliberately participated together with other Team Members in a plan to
engage in concerted actions detrimental to TMP's interest. As a result of your
participation in the widespread abandonment of work by Team Members from February
22 to 23, 2001, TMP suffered substantial damage.

It is significant that the absences you incurred in order to attend the clarificatory
hearing conducted by the Bureau of Labor Relations were unnecessary because the
union was amply represented in the said hearings by its counsel and certain members
who sought and were granted leave for the purpose. Your reason for being absent is,
therefore, not acceptable; andcralawlibrary

2. Your participation in the organized work boycott by Team Members on February 22

and 23 led to work disruptions that prevented the Company from meeting its
production targets, resulting [in] foregone sales of more than eighty (80) vehicles,
mostly new-model Revos, valued at more than Fifty Million Pesos (50,000,000.00).

The foregoing is also a violation of TMP's Code of Conduct (Section D, Paragraph 6) to

wit:

"Inciting or participating in riots, disorders, illegal strikes or concerted actions

detrimental to TMP's interest."

Based on the above, TMP Management is left with no other recourse but to terminate
your employment effective upon your receipt thereof.

[Sgd.]
JOSE MARIA ALIGADA

Deputy Division Manager16

In reaction to the dismissal of its union members and officers, the Union went on strike
on March 17, 2001. Subsequently, from March 28, 2001 to April 12, 2001, the Union
intensified its strike by barricading the gates of Toyota's Bicutan and Sta. Rosa plants.
The strikers prevented workers who reported for work from entering the plants. In his
Affidavit, Mr. Eduardo Nicolas III, Security Department Head, stated that:

3. On March 17, 2001, members of the Toyota Motor Philippines Corporation Workers
Association (TMPCWA), in response to the dismissal of some two hundred twenty seven
(227) leaders and members of TMPCWA and without observing the requirements
mandated by the Labor Code, refused to report for work and picketed TMPC premises
from 8:00 a.m. to 5:00 p.m. The strikers badmouthed people coming in and hurled
invectives such as "bakeru" at Japanese officers of the company. The strikers likewise
pounded the officers' vehicle as they tried to enter the premises of the company.

4. On March 28, 2001, the strikers intensified their picketing and barricaded the gates
of TMPC's Bicutan and Sta. Rosa plants, thus, blocking the free ingress/egress to and
from the premises. Shuttle buses and cars containing TMPC employees, suppliers,
dealers, customers and other people having business with the company, were
prevented by the strikers from entering the plants.

5. As a standard operating procedure, I instructed my men to take photographs and

video footages of those who participated in the strike. Seen on video footages taken on
various dates actively participating in the strike were union officers Emilio C. Completo,
Alexander Esteva, Joey Javellonar and Lorenzo Caraqueo.

6. Based on the pictures, among those identified to have participated in the March 28,
2001 strike were Grant Robert Toral, John Posadas, Alex Sierra, Allan John Malabanan,
Abel Bersos, Ernesto Bonavente, Ariel Garcia, Pablito Adaya, Feliciano Mercado, Charlie
Oliveria, Philip Roxas, June Lamberte, Manjolito Puno, Baldwin San Pablo, Joseph
Naguit, Federico Torres, Larry Gerola, Roderick Bayani, Allan Oclarino, Reynaldo
Cuevas, Jorge Polutan, Arman Ercillo, Jimmy Hembra, Albert Mariquit, Ramil Gecale,
Jimmy Palisoc, Normandy Castalone, Joey Llanera, Greg Castro, Felicisimo Escrimadora,
Rodolfo Bay, Ramon Clemente, Dante Baclino, Allan Palomares, Arturo Murillo and
Robert Gonzales. Attached hereto as Annexes "1" to "18" are the pictures taken on
March 28, 2001 at the Bicutan and Sta. Rosa plants.

7. From March 29 to 31, 2001, the strikers continued to barricade the entrances to
TMPC's two (2) plants. Once again, the strikers hurled nasty remarks and prevented
employees aboard shuttle buses from entering the plants. Among the strikers were
Christopher Saldivar, Basilio Laqui, Sabas Bernabise, Federico Torres, Freddie Olit, Josel
Agosto, Arthur Parilla, Richard Calalang, Ariel Garcia, Edgar Hilaga, Charlie Oliveria,
Ferdinand Jaen, Wilfredo Tagle, Alejandro Imperial, Manjolito Puno, Delmar Espadilla,
Domingo Javier, Apollo Violeta and Elvis Tabinao.17

On March 29, 2001, Toyota filed a petition for injunction with a prayer for the issuance
of a temporary restraining order (TRO) with the NLRC, which was docketed as NLRC
NCR Case No. INJ-0001054-01. It sought free ingress to and egress from its Bicutan
and Sta. Rosa manufacturing plants. Acting on said petition, the NLRC, on April 5,
2001, issued a TRO against the Union, ordering its leaders and members as well as its
sympathizers to remove their barricades and all forms of obstruction to ensure free
ingress to and egress from the company's premises. In addition, the NLRC rejected the
Union's motion to dismiss based on lack of jurisdiction.18

Meanwhile, Toyota filed a petition to declare the strike illegal with the NLRC arbitration
branch, which was docketed as NLRC NCR (South) Case No. 30-04-01775-01, and
prayed that the erring Union officers, directors, and members be dismissed.19

On April 10, 2001, the DOLE Secretary assumed jurisdiction over the labor dispute and
issued an Order20 certifying the labor dispute to the NLRC. In said Order, the DOLE
Secretary directed all striking workers to return to work at their regular shifts by April
16, 2001. On the other hand, it ordered Toyota to accept the returning employees
under the same terms and conditions obtaining prior to the strike or at its option, put
them under payroll reinstatement. The parties were also enjoined from committing acts
that may worsen the situation. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The Union ended the strike on April 12, 2001. The union members and officers tried to
return to work on April 16, 2001 but were told that Toyota opted for payroll-
reinstatement authorized by the Order of the DOLE Secretary.

In the meantime, the Union filed a motion for reconsideration of the DOLE Secretary's
April 10, 2001 certification Order, which, however, was denied by the DOLE Secretary
in her May 25, 2001 Resolution. Consequently, a petition for certiorari was filed before
the CA, which was docketed as CA-G.R. SP No. 64998.

In the intervening time, the NLRC, in compliance with the April 10, 2001 Order of the
DOLE Secretary, docketed the case as Certified Case No. 000203-01.

Meanwhile, on May 23, 2001, at around 12:00 nn., despite the issuance of the DOLE
Secretary's certification Order, several payroll-reinstated members of the Union staged
a protest rally in front of Toyota's Bicutan Plant bearing placards and streamers in
defiance of the April 10, 2001 Order.

Then, on May 28, 2001, around forty-four (44) Union members staged another protest
action in front of the Bicutan Plant. At the same time, some twenty-nine (29) payroll-
reinstated employees picketed in front of the Santa Rosa Plant's main entrance, and
were later joined by other Union members.

On June 5, 2001, notwithstanding the certification Order, the Union filed another notice
of strike, which was docketed as NCMB-NCR-NS-06-150-01. On June 18, 2001, the
DOLE Secretary directed the second notice of strike to be subsumed in the April 10,
2001 certification Order.

In the meantime, the NLRC, in Certified Case No. 000203-01, ordered both parties to
submit their respective position papers on June 8, 2001. The union, however, requested
for abeyance of the proceedings considering that there is a pending petition
for certiorari with the CA assailing the validity of the DOLE Secretary's Assumption of
Jurisdiction Order.

Thereafter, on June 19, 2001, the NLRC issued an Order, reiterating its previous order
for both parties to submit their respective position papers on or before June 2, 2001.
The same Order also denied the Union's verbal motion to defer hearing on the certified
cases.

On June 27, 2001, the Union filed a Motion for Reconsideration of the NLRC's June 19,
2001 Order, praying for the deferment of the submission of position papers until its
petition for certiorari is resolved by the CA.

On June 29, 2001, only Toyota submitted its position paper. On July 11, 2001, the
NLRC again ordered the Union to submit its position paper by July 19, 2001, with a
warning that upon failure for it to do so, the case shall be considered submitted for
decision.

Meanwhile, on July 17, 2001, the CA dismissed the Union's petition for certiorari in CA-
G.R. SP No. 64998, assailing the DOLE Secretary's April 10, 2001 Order.
Notwithstanding repeated orders to file its position paper, the Union still failed to
submit its position paper on July 19, 2001. Consequently, the NLRC issued an Order
directing the Union to submit its position paper on the scheduled August 3, 2001
hearing; otherwise, the case shall be deemed submitted for resolution based on the
evidence on record.

During the August 3, 2001 hearing, the Union, despite several accommodations, still
failed to submit its position paper. Later that day, the Union claimed it filed its position
paper by registered mail.

Subsequently, the NLRC, in its August 9, 2001 Decision, declared the strikes staged by
the Union on February 21 to 23, 2001 and May 23 and 28, 2001 as illegal. The decretal
portion reads:

WHEREFORE, premises considered, it is hereby ordered:

(1) Declaring the strikes staged by the Union to be illegal.

(2) Declared [sic] that the dismissal of the 227 who participated in the illegal strike on
February 21-23, 2001 is legal.

(3) However, the Company is ordered to pay the 227 Union members, who participated
in the illegal strike severance compensation in an amount equivalent to one month
salary for every year of service, as an alternative relief to continued employment.

(4) Declared [sic] that the following Union officers and directors to have forfeited their
employment status for having led the illegal strikes on February 21-23, 2001 and May
23 and 28, 2001: Ed Cubelo, Maximino Cruz, Jr., Ricky Chavez, Joselito Hugo, Virgilio
Colandog, Rommel Digma, Federico Torres, Emilio Completo, Alexander Esteva, Joey
Javellonar, Lorenzo Caraqueo, Roderick Nieres, Antonio Borsigue, Bayani Manguil, Jr.,
and Mayo Mata.21

SO ORDERED.22

The NLRC considered the mass actions staged on February 21 to 23, 2001 illegal as the
Union failed to comply with the procedural requirements of a valid strike under Art. 263
of the Labor Code.

After the DOLE Secretary assumed jurisdiction over the Toyota dispute on April 10,
2001, the Union again staged strikes on May 23 and 28, 2001. The NLRC found the
strikes illegal as they violated Art. 264 of the Labor Code which proscribes any strike or
lockout after jurisdiction is assumed over the dispute by the President or the DOLE
Secretary.

The NLRC held that both parties must have maintained the status quo after the DOLE
Secretary issued the assumption/certification Order, and ruled that the Union did not
respect the DOLE Secretary's directive.
Accordingly, both Toyota and the Union filed Motions for Reconsideration, which the
NLRC denied in its September 14, 2001 Resolution.23 Consequently, both parties
questioned the August 9, 2001 Decision24 and September 14, 2001 Resolution of the
NLRC in separate petitions for certiorari filed with the CA, which were docketed as CA-
G.R. SP Nos. 67100 and 67561, respectively. The CA then consolidated the petitions.

In its February 27, 2003 Decision,25 the CA ruled that the Union's petition is defective in
form for its failure to append a proper verification and certificate of non-forum
shopping, given that, out of the 227 petitioners, only 159 signed the verification and
certificate of non-forum shopping. Despite the flaw, the CA proceeded to resolve the
petitions on the merits and affirmed the assailed NLRC Decision and Resolution with a
modification, however, of deleting the award of severance compensation to the
dismissed Union members.

In justifying the recall of the severance compensation, the CA

considered the participation in illegal strikes as serious misconduct. It defined serious

misconduct as a transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and
not mere error in judgment. It cited Panay Electric Company, Inc. v. NLRC,26 where we
revoked the grant of separation benefits to employees who lawfully participated in an
illegal strike based on Art. 264 of the Labor Code, which states that "any union officer
who knowingly participates in an illegal strike and any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be declared
to have lost his employment status."27

However, in its June 20, 2003 Resolution,28 the CA modified its February 27, 2003
Decision by reinstating severance compensation to the dismissed employees based on
social justice.

The Issues

Petitioner Union now comes to this Court and raises the following issues for our
consideration:

I. Whether the mere participation of ordinary employees in an illegal strike is enough

reason to warrant their dismissal.

II. Whether the Union officers and members' act of holding the protest rallies in front of
the BLR office and the Office of the Secretary of Labor and Employment on February 22
and 23, 2001 should be held as illegal strikes. In relation hereto, whether the protests
committed on May 23 and 28, 2001, should be held as illegal strikes. Lastly, whether
the Union violated the Assumption of Jurisdiction Order issued by the Secretary of
Labor and Employment.

III. Whether the dismissal of 227 Union officers and members constitutes unfair labor
practice.
IV. Whether the CA erred in affirming the Decision of the NLRC which excluded the
Union's Position Paper which the Union filed by mail. In the same vein, whether the
Union's right to due process was violated when the NLRC excluded their Position Paper.

V. Whether the CA erred in dismissing the Union's Petition for Certiorari.

Toyota, on the other hand, presents this sole issue for our determination:

I. Whether the Court of Appeals erred in issuing its Resolution dated June 20, 2003,
partially modifying its Decision dated February 27, 2003, and awarding severance
compensation to the dismissed Union members.

In sum, two main issues are brought to the fore:

(1) Whether the mass actions committed by the Union on different occasions are illegal
strikes; and

(2) Whether separation pay should be awarded to the Union members who participated
in the illegal strikes.

The Court's Ruling

The Union contends that the NLRC violated its right to due process when it disregarded
its position paper in deciding Toyota's petition to declare the strike illegal.

We rule otherwise.

It is entirely the Union's fault that its position paper was not considered by the NLRC.
Records readily reveal that the NLRC was even too generous in affording due process to
the Union. It issued no less than three (3) orders for the parties to submit its position
papers, which the Union ignored until the last minute. No sufficient justification was
offered why the Union belatedly filed its position paper. In Datu Eduardo Ampo v. The
Hon. Court of Appeals, it was explained that a party cannot complain of deprivation of
due process if he was afforded an opportunity to participate in the proceedings but
failed to do so. If he does not avail himself of the chance to be heard, then it is deemed
waived or forfeited without violating the constitutional guarantee.29 Thus, there was no
violation of the Union's right to due process on the part of the NLRC.

On a procedural aspect, the Union faults the CA for treating its petition as an unsigned
pleading and posits that the verification signed by 159 out of the 227 petitioners has
already substantially complied with and satisfied the requirements under Secs. 4 and 5
of Rule 7 of the Rules of Court.

The Union's proposition is partly correct.

Sec. 4 of Rule 7 of the Rules of Court states:

Sec. 4. Verification. Except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains a verification based on "information

and belief" or upon "knowledge, information and belief," or lacks a proper verification,
shall be treated as an unsigned pleading.

The verification requirement is significant, as it is intended to secure an assurance that

the allegations in the pleading are true and correct and not the product of the
imagination or a matter of speculation.30 This requirement is simply a condition
affecting the form of pleadings, and noncompliance with the requirement does not
necessarily render it fatally defective. Indeed, verification is only a formal and not a
jurisdictional requirement.31

In this case, the problem is not the absence but the adequacy of the Union's
verification, since only 159 out of the 227 petitioners executed the verification.
Undeniably, the petition meets the requirement on the verification with respect to the
159 petitioners who executed the verification, attesting that they have sufficient
knowledge of the truth and correctness of the allegations of the petition. However, their
signatures cannot be considered as verification of the petition by the other 68 named
petitioners unless the latter gave written authorization to the 159 petitioners to sign the
verification on their behalf. Thus, in Loquias v. Office of the Ombudsman, we ruled that
the petition satisfies the formal requirements only with regard to the petitioner who
signed the petition but not his co-petitioner who did not sign nor authorize the other
petitioner to sign it on his behalf.32 The proper ruling in this situation is to consider the
petition as compliant with the formal requirements with respect to the parties who
signed it and, therefore, can be given due course only with regard to them. The other
petitioners who did not sign the verification and certificate against forum shopping
cannot be recognized as petitioners have no legal standing before the Court. The
petition should be dismissed outright with respect to the non-conforming petitioners.

In the case at bench, however, the CA, in the exercise of sound discretion, did not
strictly apply the ruling in Loquias and instead proceeded to decide the case on the
merits.

The alleged protest rallies in front of the offices of BLR and DOLE Secretary
and at the Toyota plants constituted illegal strikes

When is a strike illegal? cra lawlibrary

Noted authority on labor law, Ludwig Teller, lists six (6) categories of an illegal strike,
viz:

(1) [when it] is contrary to a specific prohibition of law, such as strike by employees
performing governmental functions; or

(2) [when it] violates a specific requirement of law[, such as Article 263 of the Labor
Code on the requisites of a valid strike]; or
(3) [when it] is declared for an unlawful purpose, such as inducing the employer to
commit an unfair labor practice against non-union employees; or

(4) [when it] employs unlawful means in the pursuit of its objective, such as a
widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of
the Labor Code]; or

(5) [when it] is declared in violation of an existing injunction[, such as injunction,

prohibition, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the
Labor Code]; or

(6) [when it] is contrary to an existing agreement, such as a no-strike clause or

conclusive arbitration clause.33

Petitioner Union contends that the protests or rallies conducted on February 21 and 23,
2001 are not within the ambit of strikes as defined in the Labor Code, since they were
legitimate exercises of their right to peaceably assemble and petition the government
for redress of grievances. Mainly relying on the doctrine laid down in the case
of Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc.,34 it argues that the protest was not directed at Toyota but towards the
Government (DOLE and BLR). It explains that the protest is not a strike as
contemplated in the Labor Code. The Union points out that in Philippine Blooming Mills
Employees Organization, the mass action staged in Malacañang to petition the Chief
Executive against the abusive behavior of some police officers was a proper exercise of
the employees' right to speak out and to peaceably gather and ask government for
redress of their grievances.

The Union's position fails to convince us.

While the facts in Philippine Blooming Mills Employees Organization are similar in some
respects to that of the present case, the Union fails to realize one major difference:
there was no labor dispute in Philippine Blooming Mills Employees Organization. In the
present case, there was an on-going labor dispute arising from Toyota's refusal to
recognize and negotiate with the Union, which was the subject of the notice of strike
filed by the Union on January 16, 2001. Thus, the Union's reliance on Phililippine
Blooming Mills Employees Organization is misplaced, as it cannot be considered a
precedent to the case at bar.

A strike means any temporary stoppage of work by the concerted action of employees
as a result of an industrial or labor dispute. A labor dispute, in turn, includes any
controversy or matter concerning terms or conditions of employment or the association
or representation of persons in negotiating, fixing, maintaining, changing, or arranging
the terms and conditions of employment, regardless of whether the disputants stand in
the proximate relation of the employer and the employee.35

In Bangalisan v. Court of Appeals, it was explained that "[t]he fact that the
conventional term 'strike' was not used by the striking employees to describe their
common course of action is inconsequential, since the substance of the situation and
not its appearance, will be deemed controlling."36 The term "strike" has been elucidated
to encompass not only concerted work stoppages, but also slowdowns, mass leaves,
sit-downs, attempts to damage, destroy, or sabotage plant equipment and facilities,
and similar activities.37

Applying pertinent legal provisions and jurisprudence, we rule that the protest actions
undertaken by the Union officials and members on February 21 to 23, 2001 are not
valid and proper exercises of their right to assemble and ask government for redress of
their complaints, but are illegal strikes in breach of the Labor Code. The Union's
position is weakened by the lack of permit from the City of Manila to hold "rallies."
Shrouded as demonstrations, they were in reality temporary stoppages of work
perpetrated through the concerted action of the employees who deliberately failed to
report for work on the convenient excuse that they will hold a rally at the BLR and
DOLE offices in Intramuros, Manila, on February 21 to 23, 2001. The purported reason
for these protest actions was to safeguard their rights against any abuse which the
med-arbiter may commit against their cause. However, the Union failed to advance
convincing proof that the med-arbiter was biased against them. The acts of the med-
arbiter in the performance of his duties are presumed regular. Sans ample evidence to
the contrary, the Union was unable to justify the February 2001 mass actions. What
comes to the fore is that the decision not to work for two days was designed and
calculated to cripple the manufacturing arm of Toyota. It becomes obvious that the real
and ultimate goal of the Union is to coerce Toyota to finally acknowledge the Union as
the sole bargaining agent of the company. This is not a legal and valid exercise of the
right of assembly and to demand redress of grievance.

We sustain the CA's affirmance of the NLRC's finding that the protest rallies staged on
February 21 to 23, 2001 were actually illegal strikes. The illegality of the Union's mass
actions was succinctly elaborated by the labor tribunal, thus:

We have stated in our questioned decision that such mass actions staged before the
Bureau of Labor Relations on February 21-23, 2001 by the union officers and members
fall squarely within the definition of a strike (Article 212 (o), Labor Code). These
concerted actions resulted in the temporary stoppage of work causing the latter
substantial losses. Thus, without the requirements for a valid strike having been
complied with, we were constrained to consider the strike staged on such dates as
illegal and all employees who participated in the concerted actions to have consequently
lost their employment status.

If we are going to stamp a color of legality on the two (2) [day -] walk out/strike of
respondents without filing a notice of strike, in effect we are giving license to all the
unions in the country to paralyze the operations of their companies/employers every
time they wish to hold a demonstration in front of any government agency. While we
recognize the right of every person or a group to peaceably assemble and petition the
government for redress of grievances, the exercise of such right is governed by existing
laws, rules and regulations.

Although the respondent union admittedly made earnest representations with the
company to hold a mass protest before the BLR, together with their officers and
members, the denial of the request by the management should have been heeded and
ended their insistence to hold the planned mass demonstration. Verily, the violation of
the company rule cannot be dismissed as mere absences of two days as being
suggested by the union [are but] concerted actions detrimental to Petitioner Toyota's
interest.38 (Emphasis supplied.)

It is obvious that the February 21 to 23, 2001 concerted actions were undertaken
without satisfying the prerequisites for a valid strike under Art. 263 of the Labor Code.
The Union failed to comply with the following requirements: (1) a notice of strike filed
with the DOLE 30 days before the intended date of strike, or 15 days in case of unfair
labor practice;39 (2) strike vote approved by a majority of the total union membership
in the bargaining unit concerned obtained by secret ballot in a meeting called for that
purpose; and (3) notice given to the DOLE of the results of the voting at least seven
days before the intended strike. These requirements are mandatory and the failure of a
union to comply with them renders the strike illegal.40 The evident intention of the law
in requiring the strike notice and the strike-vote report is to reasonably regulate the
right to strike, which is essential to the attainment of legitimate policy objectives
embodied in the law.41 As they failed to conform to the law, the strikes on February 21,
22, and 23, 2001 were illegal.

Moreover, the aforementioned February 2001 strikes are in blatant violation of Sec. D,
par. 6 of Toyota's Code of Conduct which prohibits "inciting or participating in riots,
disorders, alleged strikes or concerted actions detrimental to [Toyota's] interest." The
penalty for the offense is dismissal. The Union and its members are bound by the
company rules, and the February 2001 mass actions and deliberate refusal to render
regular and overtime work on said days violated these rules. In sum, the February 2001
strikes and walk-outs were illegal as these were in violation of specific requirements of
the Labor Code and a company rule against illegal strikes or concerted actions.

With respect to the strikes committed from March 17 to April 12, 2001, those were
initially legal as the legal requirements were met. However, on March 28 to April 12,
2001, the Union barricaded the gates of the Bicutan and Sta. Rosa plants and blocked
the free ingress to and egress from the company premises. Toyota employees,
customers, and other people having business with the company were intimidated and
were refused entry to the plants. As earlier explained, these strikes were illegal because
unlawful means were employed. The acts of the Union officers and members are in
palpable violation of Art. 264(e), which proscribes acts of violence, coercion, or
intimidation, or which obstruct the free ingress to and egress from the company
premises. Undeniably, the strikes from March 28 to April 12, 2001 were illegal.

Petitioner Union also posits that strikes were not committed on May 23 and 28, 2001.
The Union asserts that the rallies held on May 23 and 28, 2001 could not be considered
strikes, as the participants were the dismissed employees who were on payroll
reinstatement. It concludes that there was no work stoppage.

This contention has no basis.

It is clear that once the DOLE Secretary assumes jurisdiction over the labor dispute and
certifies the case for compulsory arbitration with the NLRC, the parties have to revert to
the status quo ante (the state of things as it was before). The intended normalcy of
operations is apparent from the fallo of the April 10, 2001 Order of then DOLE
Secretary Patricia A. Sto. Tomas, which reads:
WHEREFORE, PREMISES CONSIDERED, this Office hereby CERTIFIES the labor dispute
at Toyota Motors Philippines Corporation to the [NLRC] pursuant to Article 263 (g) of
the Labor Code, as amended. This Certification covers the current labor cases filed in
relation with the Toyota strike, particularly, the Petition for Injunction filed with the
National Labor Relations Commission entitled Toyota Motor Philippines Corporation v.
Toyota Motor Philippines Corporation Workers Association (TMPCWA), Ed Cubelo, et al.,
NLRC Injunction Case No. 3401054-01; Toyota Motor Philippines Corporation v. Toyota
Motor Philippines Corporation Workers Association, et al., NLRC NCR Case No. 3004-
01775-01, and such other labor cases that the parties may file relating to the strike and
its effects while this Certification is in effect.

As provided under Article 2634(g) of the Labor Code, all striking workers are directed to
return to work at their regular shifts by April 16, 2001; the Company is in turn directed
to accept them back to work under the same terms and conditions obtaining prior to
the work stoppage, subject to the option of the company to merely reinstate a worker
or workers in the payroll in light of the negative emotions that the strike has generated
and the need to prevent the further deterioration of the relationship between the
company and its workers.

Further, the parties are hereby ordered to cease and desist from committing any act
that might lead to the worsening of an already deteriorated situation.42 (Emphasis
supplied.)

It is explicit from this directive that the Union and its members shall refrain from
engaging in any activity that might exacerbate the tense labor situation in Toyota,
which certainly includes concerted actions.

This was not heeded by the Union and the individual respondents who staged illegal
concerted actions on May 23 and 28, 2001 in contravention of the Order of the DOLE
Secretary that no acts should be undertaken by them to aggravate the "already
deteriorated situation."

While it may be conceded that there was no work disruption in the two Toyota plants,
the fact still remains that the Union and its members picketed and performed concerted
actions in front of the Company premises. This is a patent violation of the assumption
of jurisdiction and certification Order of the DOLE Secretary, which ordered the parties
"to cease and desist from committing any act that might lead to the worsening of an
already deteriorated situation." While there are no work stoppages, the pickets and
concerted actions outside the plants have a demoralizing and even chilling effect on the
workers inside the plants and can be considered as veiled threats of possible trouble to
the workers when they go out of the company premises after work and of impending
disruption of operations to company officials and even to customers in the days to
come. The pictures presented by Toyota undoubtedly show that the company officials
and employees are being intimidated and threatened by the strikers. In short, the
Union, by its mass actions, has inflamed an already volatile situation, which was
explicitly proscribed by the DOLE Secretary's Order. We do not find any compelling
reason to reverse the NLRC findings that the pickets on May 23 and 28, 2001 were
unlawful strikes.
From the foregoing discussion, we rule that the February 21 to 23, 2001 concerted
actions, the March 17 to April 12, 2001 strikes, and the May 23 and 28, 2001 mass
actions were illegal strikes.

Union officers are liable for unlawful strikes or illegal acts during a strike

Art. 264 (a) of the Labor Code provides:

ART. 264. PROHIBITED ACTIVITIES

(a) x x x

Any worker whose employment has been terminated as a consequence of an unlawful

lockout shall be entitled to reinstatement with full backwages. Any union officer who
knowingly participates in an illegal strike and any worker or union officer who knowingly
participates in the commission of illegal acts during a strike may be declared to have
lost his employment status: Provided, That mere participation of a worker in a lawful
strike shall not constitute sufficient ground for termination of his employment, even if a
replacement had been hired by the employer during such lawful strike.

Art. 264(a) sanctions the dismissal of a union officer who knowingly participates in an
illegal strike or who knowingly participates in the commission of illegal acts during a
lawful strike.

It is clear that the responsibility of union officials is greater than that of the members.
They are tasked with the duty to lead and guide the membership in decision making on
union activities in accordance with the law, government rules and regulations, and
established labor practices. The leaders are expected to recommend actions that are
arrived at with circumspection and contemplation, and always keep paramount the best
interests of the members and union within the bounds of law. If the implementation of
an illegal strike is recommended, then they would mislead and deceive the membership
and the supreme penalty of dismissal is appropriate. On the other hand, if the strike is
legal at the beginning and the officials commit illegal acts during the duration of the
strike, then they cannot evade personal and individual liability for said acts.

The Union officials were in clear breach of Art. 264(a) when they knowingly participated
in the illegal strikes held from February 21 to 23, 2001, from March 17 to April 12,
2001, and on May 23 and 28, 2001. We uphold the findings of fact of the NLRC on the
involvement of said union officials in the unlawful concerted actions as affirmed by the
CA, thus:

As regards to the Union officers and directors, there is overwhelming justification to

declare their termination from service. Having instigated the Union members to stage
and carry out all illegal strikes from February 21-23, 2001, and May 23 and 28, 2001,
the following Union officers are hereby terminated for cause pursuant to Article 264(a)
of the Labor Code: Ed Cubelo, Maximino Cruz, Jr., Ricky Chavez, Joselito Hugo, Virgilio
Colandog, Rommel Digma, Federico Torres, Emilio Completo, Alexander Esteva, Joey
Javellonar, Lorenzo Caraqueo, Roderick Nieres, Antonio Borsigue, Bayani Manguil, Jr.,
and Mayo Mata.43
The rule is well entrenched in this jurisdiction that factual findings of the labor tribunal,
when affirmed by the appellate court, are generally accorded great respect, even
finality.44

Likewise, we are not duty-bound to delve into the accuracy of the factual findings of the
NLRC in the absence of clear showing that these were arbitrary and bereft of any
rational basis.45 In the case at bench, the Union failed to convince us that the NLRC
findings that the Union officials instigated, led, and knowingly participated in the series
of illegal strikes are not reinforced by substantial evidence. Verily, said findings have to
be maintained and upheld. We reiterate, as a reminder to labor leaders, the rule that
"[u]nion officers are duty bound to guide their members to respect the
law."46 Contrarily, if the "officers urge the members to violate the law and defy the duly
constituted authorities, their dismissal from the service is a just penalty or sanction for
their unlawful acts."47

Member's liability depends on participation in illegal acts

Art. 264(a) of the Labor Code provides that a member is liable when he knowingly
participates in an illegal act "during a strike." While the provision is silent on whether
the strike is legal or illegal, we find that the same is irrelevant. As long as the members
commit illegal acts, in a legal or illegal strike, then they can be terminated. 48 However,
when union members merely participate in an illegal strike without committing any
illegal act, are they liable?
cra lawlibrary

This was squarely answered in Gold City Integrated Port Service, Inc. v. NLRC,49 where
it was held that an ordinary striking worker cannot be terminated for mere participation
in an illegal strike. This was an affirmation of the rulings in Bacus v. Ople 50 and
Progressive Workers Union v. Aguas,51 where it was held that though the strike is
illegal, the ordinary member who merely participates in the strike should not be meted
loss of employment on the considerations of compassion and good faith and in view of
the security of tenure provisions under the Constitution. In Esso Philippines, Inc. v.
Malayang Manggagawa sa Esso (MME), it was explained that a member is not
responsible for the union's illegal strike even if he voted for the holding of a strike
which became illegal.52

Noted labor law expert, Professor Cesario A. Azucena, Jr., traced the history relating to
the liability of a union member in an illegal strike, starting with the "rule of vicarious
liability," thus:

Under [the rule of vicarious liability], mere membership in a labor union serves as basis
of liability for acts of individuals, or for a labor activity, done on behalf of the union. The
union member is made liable on the theory that all the members are engaged in a
general conspiracy, and the unlawful acts of the particular members are viewed as
necessary incidents of the conspiracy. It has been said that in the absence of statute
providing otherwise, the rule of vicarious liability applies.

Even the Industrial Peace Act, however, which was in effect from 1953 to 1974, did not
adopt the vicarious liability concept. It expressly provided that:
No officer or member of any association or organization, and no association or
organization participating or interested in a labor dispute shall be held responsible or
liable for the unlawful acts of individual officers, members, or agents, except upon proof
of actual participation in, or actual authorization of, such acts or of ratifying of such acts
after actual knowledge thereof.

Replacing the Industrial Peace Act, the Labor Code has not adopted the vicarious
liability rule.53

Thus, the rule on vicarious liability of a union member was abandoned and it is only
when a striking worker "knowingly participates in the commission of illegal acts during a
strike" that he will be penalized with dismissal.

Now, what are considered "illegal acts" under Art. 264(a)? cra lawlibrary

No precise meaning was given to the phrase "illegal acts." It may encompass a number
of acts that violate existing labor or criminal laws, such as the following:

(1) Violation of Art. 264(e) of the Labor Code which provides that "[n]o person engaged
in picketing shall commit any act of violence, coercion or intimidation or obstruct the
free ingress to or egress from the employer's premises for lawful purposes, or obstruct
public thoroughfares";

(2) Commission of crimes and other unlawful acts in carrying out the strike;54 and

(3) Violation of any order, prohibition, or injunction issued by the DOLE Secretary or
NLRC in connection with the assumption of jurisdiction/certification Order under Art.
263(g) of the Labor Code.

As earlier explained, this enumeration is not exclusive and it may cover other breaches
of existing laws.

In the cases at bench, the individual respondents participated in several mass actions,
viz:

(1) The rallies held at the DOLE and BLR offices on February 21, 22, and 23, 2001;

(2) The strikes held on March 17 to April 12, 2001; and

(3) The rallies and picketing on May 23 and 28, 2001 in front of the Toyota Bicutan and
Sta. Rosa plants.

Did they commit illegal acts during the illegal strikes on February 21 to 23, 2001, from
March 17 to April 12, 2001, and on May 23 and 28, 2001? cra lawlibrary

The answer is in the affirmative.

As we have ruled that the strikes by the Union on the three different occasions were
illegal, we now proceed to determine the individual liabilities of the affected union
members for acts committed during these forbidden concerted actions.

Our ruling in Association of Independent Unions in the Philippines v. NLRC lays down
the rule on the liability of the union members:

Decisive on the matter is the pertinent provisions of Article 264 (a) of the Labor Code
that: "[x x x] any worker [x x x] who knowingly participates in the commission of illegal
acts during a strike may be declared to have lost his employment status. [x x x]" It can
be gleaned unerringly from the aforecited provision of law in point, however, that an
ordinary striking employee can not be terminated for mere participation in an illegal
strike. There must be proof that he committed illegal acts during the strike and
the striker who participated in the commission of illegal act[s] must be
identified. But proof beyond reasonable doubt is not required. Substantial
evidence available under the circumstances, which may justify the imposition
of the penalty of dismissal, may suffice.

In the landmark case of Ang Tibay v. CIR, the court ruled "Not only must there be some
evidence to support a finding or conclusion, but the evidence must be
'substantial.' Substantial evidence is more than a mere scintilla. It means such
relevant evidence that a reasonable mind might accept as sufficient to support
a conclusion."55 (Emphasis supplied.)

Thus, it is necessary for the company to adduce proof on the participation of the
striking employee in the commission of illegal acts during the strikes.

After a scrutiny of the records, we find that the 227 employees indeed joined the
February 21, 22, and 23, 2001 rallies and refused to render overtime work or report for
work. These rallies, as we earlier ruled, are in reality illegal strikes, as the procedural
requirements for strikes under Art. 263 were not complied with. Worse, said strikes
were in violation of the company rule prohibiting acts "in citing or participating in riots,
disorders, alleged strikes or concerted action detrimental to Toyota's interest."

With respect to the February 21, 22, and 23, 2001 concerted actions, Toyota submitted
the list of employees who did not render overtime work on February 21, 2001 and who
did not report for work on February 22 and 23, 2001 as shown by Annex "I" of Toyota's
Position Paper in NLRC Certified Case No. 000203-01 entitled In Re: Labor Dispute at
Toyota Motor Philippines Corp. The employees who participated in the illegal concerted
actions were as follows:

1. Aclan, Eugenio; 2. Agosto, Joel; 3. Agot, Rodelio; 4. Alarana, Edwin; 5. Alejo, Alex;
6. Alfonso, Erwin; 7. Apolinario, Dennis; 8. Apostol, Melvin; 9. Arceta, Romel; 10.
Arellano, Ruel; 11. Ariate, Abraham; 12. Arollado, Daniel; 13. Arriola, Dominador; 14.
Atun, Lester; 15. Bala, Rizalino; 16. Baluyut, Rolando; 17. Banzuela, Tirso Jr.; 18.
Bayani, Roderick; 19. Benabise, Sabas Jr.; 20. Berces, Abel; 21. Bering, Benny; 22.
Birondo, Alberto; 23. Blanco, Melchor; 24. Bolanos, Dexter; 25. Bolocon, Jerry; 26.
Borebor, Rurel; 27. Borromeo, Jubert; 28. Borsigue, Antonio; 29. Bulan, Elmer; 30.
Busano, Freddie; 31. Bustillo, Ernesto Jr.; 32. Caalim, Alexander; 33. Cabahug, Nelson;
34. Cabatay, Jessie; 35. Cabezas, Marcelo; 36. Calalang, Richard; 37. Candelario,
Roque Jr.; 38. Capate, Leo Nelson; 39. Carandang, Resty; 40. Caraqueo, Lorenzo; 41.
Caringal, Dennis; 42. Casaba, Gienell; 43. Catapusan, Christopher; 44. Catral, Rico; 45.
Cecilio, Felipe; 46. Cinense, Joey; 47. Cometa, Julius; 48. Completo, Emilio; 49.
Consignado, Randy; 50. Coral, Jay Antonio; 51. Correa, Claudio Jr.; 52. Cuevas,
Reynaldo; 53. Dacalcap, Albert; 54. Dakay, Ryan; 55. Dalanon, Herbert; 56. Dalisay,
Rene; 57. David, Benigno Jr.; 58. De Guzman, Joey; 59. Dela Cruz, Basilio; 60. Dela
Cruz, Ferdinand; 61. Dela Torre, Heremo; 62. De Leon, Leonardo; 63. Delos Santos,
Rogelio; 64. De Ocampo, Joselito; 65. De Silva, Leodegario; 66. Del Mundo, Alex; 67.
Del Rio, Rey; 68. Dela Ysla, Alex; 69. Dia, Frank Manuel; 70. Dimayuga, Antonio; 71.
Dingcong, Jessiah; 72. Dumalag, Jasper; 73. Duyag, Aldrin; 74. Ercillo, Armando; 75.
Espadilla, Delmar; 76. Espejo, Lionel; 77. Espeloa, Dennis; 78. Esteva, Alexander; 79.
Estole, Francisco; 80. Fajardo, George; 81. Fajilagutan, Jason; 82. Fajura, John; 83.
Franco, Melencio; 84. Franco, Nikko; 85. Fulgar, Dexter; 86. Fulo, Dante; 87. Gado,
Eduardo; 88. Galang, Erwin; 89. Gamit, Rodel; 90. Garces, Robin; 91. Garcia, Ariel; 92.
Gaspi, Ronald; 93. Gavarra, Angelo; 94. Gerola, Genaro Jr.; 95. Gerola, Larry; 96.
Gohilde, Michael; 97. Gojar, Regino; 98. Gojar, Reynaldo; 99. Gonzales, Roberto; 100.
Gutierrez, Bernabe; 101. Hilaga, Edgar; 102. Hilanga, Melchor; 103. Hondrada, Eugene
Jay; 104. Imperial, Alejandro; 105. Jaen, Ferdinand; 106. Jalea, Philip; 107. Javillonar,
Joey; 108. Julve, Frederick; 109. Lalisan, Victorio; 110. Landicho, Danny; 111. Laqui,
Basilio; 112. Lavide, Edgar; 113. Lazaro, Orlando; 114. Legaspi, Noel; 115. Lising,
Reynaldo Jr.; 116. Llanera, Joey; 117. Lomboy, Alberto; 118. Lopez, Geronimo; 119.
Lozada, Jude Jonobell; 120. Lucido, Johny; 121. Macalindong, Rommel; 122. Madrazo,
Nixon; 123. Magbalita, Valentin; 124. Magistrado, Rogelio Jr.; 125. Magnaye, Philip
John; 126. Malabanan, Allan John; 127. Malabrigo, Angelito; 128. Malaluan, Rolando
Jr.; 129. Malate, Leoncio Jr.; 130. Maleon, Paulino; 131. Manaig, Roger; 132.
Manalang, Joseph Patrick; 133. Manalo, Manuel Jr.; 134. Manaog, Jonamar; 135.
Manaog, Melchor; 136. Mandolado, Melvin; 137. Maneclang, Jovito; 138. Manego, Ruel;
139. Manguil, Bayani Jr.; 140. Manigbas, June; 141. Manjares, Alfred; 142. Manzanilla,
Edwin; 143. Marasigan, Carlito; 144. Marcial, Nilo; 145. Mariano, Rommel; 146. Mata,
Mayo; 147. Mendoza, Bobit; 148. Mendoza, Roberto; 149. Milan, Joseph; 150. Miranda,
Eduardo; 151. Miranda, Luis; 152. Montero, Ericson; 153. Montero, Marlaw; 154.
Montes, Ruel; 155. Morales, Dennis; 156. Natividad, Kenneth; 157. Nava, Ronaldo;
158. Nevalga, Alexander; 159. Nicanor, Edwin; 160. Nierves, Roderick; 161. Nunez,
Alex; 162. Nunez, Lolito; 163. Obe, Victor; 164. Oclarino, Alfonso; 165. Ojenal, Leo;
166. Olit, Freddie; 167. Oliver, Rex; 168. Oliveria, Charlie; 169. Operana, Danny; 170.
Oriana, Allan; 171. Ormilla, Larry; 172. Ortiz, Felimon; 173. Paniterce, Alvin; 174.
Parallag, Gerald; 175. Pecayo, Edwin; 176. Pena, Erwin; 177. Penamante, Jowald; 178.
Piamonte, Melvin; 179. Piamonte, Rogelio; 180. Platon, Cornelio; 181. Polutan, Jorge;
182. Posada, John; 183. Puno, Manjolito; 184. Ramos, Eddie; 185. Reyes, Rolando;
186. Roxas, Philip; 187. Sales, Paul Arthur; 188. Sallan, David Jr.; 189. Salvador,
Bernardo; 190. Sampang, Alejandro; 191. San Pablo, Baldwin; 192. Sangalang, Jeffrey;
193. Santiago, Eric; 194. Santos, Raymond; 195. Sapin, Al Jose; 196. Saquilabon,
Bernabe; 197. Serrano, Ariel; 198. Sierra, Alex; 199. Simborio, Romualdo; 200. Sulit,
Lauro; 201. Tabirao, Elvisanto; 202. Tablizo, Edwin; 203. Taclan, Petronio; 204. Tagala,
Rommel; 205. Tagle, Wilfredo Jr.; 206. Tecson Alexander; 207. Templo, Christopher;
208. Tenorio, Roderick; 209. Tolentino, Rodel; 210. Tolentino, Rommel; 211. Tolentino,
Romulo Jr.; 212. Tomas, Rolando; 213. Topaz, Arturo Sr.; 214. Toral, Grant Robert;
215. Torres, Dennis; 216. Torres, Federico; 217. Trazona, Jose Rommel; 218. Tulio,
Emmanuel; 219. Umiten, Nestor Jr.; 220. Vargas, Joseph; 221. Vergara, Allan; 222.
Vergara, Esdwin; 223. Violeta, Apollo Sr.; 224. Vistal, Alex; 225. Yangyon, Michael
Teddy; 226. Zaldevar, Christopher; and 227. Zamora, Dominador Jr.

Toyota's Position Paper containing the list of striking workers was attested to as true
and correct under oath by Mr. Jose Ma. Aligada, First Vice President of the Group
Administration Division of Toyota. Mr. Emerito Dumaraos, Assistant Department
Manager of the Production Department of Toyota, likewise submitted a June 29, 2001
Affidavit56 confirming the low attendance of employees on February 21, 22, and 23,
2001, which resulted from the intentional absences of the aforelisted striking workers.
The Union, on the other hand, did not refute Toyota's categorical assertions on the
participation of said workers in the mass actions and their deliberate refusal to perform
their assigned work on February 21, 22, and 23, 2001. More importantly, it did not
deny the fact of absence of the employees on those days from the Toyota
manufacturing plants and their deliberate refusal to render work. Their admission that
they participated in the February 21 to 23, 2001 mass actions necessarily means they
were absent from their work on those days.

Anent the March 28 to April 12, 2001 strikes, evidence is ample to show commission of
illegal acts like acts of coercion or intimidation and obstructing free ingress to or egress
from the company premises. Mr. Eduardo Nicolas III, Toyota's Security Chief, attested
in his affidavit that the strikers "badmouthed people coming in and shouted invectives
such as bakeru at Japanese officers of the company." The strikers even pounded the
vehicles of Toyota officials. More importantly, they prevented the ingress of Toyota
employees, customers, suppliers, and other persons who wanted to transact business
with the company. These were patent violations of Art. 264(e) of the Labor Code, and
may even constitute crimes under the Revised Penal Code such as threats or coercion
among others.

On March 28, 2001, the following have committed illegal actsblocking the ingress to or
egress from the two (2) Toyota plants and preventing the ingress of Toyota employees
on board the company shuttle at the Bicutan and Sta. Rosa Plants, viz:

1. Grant Robert Toral; 2. John Posadas; 3. Alex Sierra; 4. Allan John Malabanan; 5.
Abel Berces; 6. Ariel Garcia; 7. Charlie Oliveria; 8. Manjolito Puno; 9. Baldwin San
Pablo; 10. Federico Torres; 11. Larry Gerola; 12. Roderick Bayani; 13. Allan Oclarino;
14. Reynaldo Cuevas; 15. George Polutan; 16. Arman Ercillo; 17. Joey Llanera; and 18.
Roberto Gonzales

Photographs were submitted by Toyota marked as Annexes "1" through "18" of its
Position Paper, vividly showing the participation of the aforelisted employees in illegal
acts.57

To further aggravate the situation, a number of union members committed illegal acts
(blocking the ingress to and egress from the plant) during the strike staged on March
29, 2001 at the Toyota plant in Bicutan, to wit:

1. Basilio Laqui; 2. Sabas Benabise; 3. Federico Torres; 4. Freddie Olit; and 5. Joel
Agosto
Pictures marked as Annexes "21" to "22" of Toyota's Position Paper reveal the illegal
acts committed by the aforelisted workers.58

On the next day, March 30, 2001, several employees again committed illegal acts
(blocking ingress to and egress from the plant) during the strike at the Bicutan plant, to
wit:

1. Ariel Garcia; 2. Edgar Hilaga; 3. Charlie Oliveria; 4. Ferdinand Jaen; 5. Wilfredo

Tagle; 6. Alejandro Imperial; 7. Manjolito Puno; 8. Delmar Espadilla; 9. Apollo Violeta;
and 10. Elvis Tabirao

Pictures marked as Annexes "25" to "26" and "28" of Toyota's Position Paper show the
participation of these workers in unlawful acts.59

On April 5, 2001, seven (7) Toyota employees were identified to have committed illegal
acts (blocking ingress to and egress from the plant) during the strike held at the
Bicutan plant, to wit:

1. Raymund Santos; 2. Elvis Tabirao; 3. Joseph Vargas; 4. Bernardo Salvador; 5.

Antonio Dimayuga; 6. Rurel Borebor; and 7. Alberto Lomboy

The participations of the strikers in illegal acts are manifest in the pictures marked as
Annexes "32" and "33" of Toyota's Position Paper.60

On April 6, 2001, only Rogelio Piamonte was identified to have committed illegal acts
(blocking ingress to and egress from the Toyota plant) during the strike at the Toyota
Santa Rosa plant.61 Then, on April 9, 2001, Alvin Paniterce, Dennis Apolinario, and
Eduardo Miranda62 were identified to have committed illegal acts (blocking ingress to
and egress from the Toyota plant) during the strike at the Toyota Santa Rosa plant and
were validly dismissed by Toyota.

Lastly, the strikers, though on payroll reinstatement, staged protest rallies on May 23,
2001 and May 28, 2001 in front of the Bicutan and Sta. Rosa plants. These workers'
acts in joining and participating in the May 23 and 28, 2001 rallies or pickets were
patent violations of the April 10, 2001 assumption of jurisdiction/certification Order
issued by the DOLE Secretary, which proscribed the commission of acts that might lead
to the "worsening of an already deteriorated situation." Art. 263(g) is clear that strikers
who violate the assumption/certification Order may suffer dismissal from work. This
was the situation in the May 23 and 28, 2001 pickets and concerted actions, with the
following employees who committed illegal acts:

A. Strikers who joined the illegal pickets on May 23, 2001 were (1) Dennis Apolinario;
(2) Abel Berces; (3) Benny Bering; (4) Dexter Bolaños; (5) Freddie Busano; (6) Ernesto
Bustillo, Jr.; (7) Randy Consignado; (8) Herbert Dalanon; (9) Leodegario De Silva; (10)
Alexander Esteva; (11) Jason Fajilagutan; (12) Nikko Franco; (13) Genaro Gerola, Jr.;
(14) Michael Gohilde; (15) Rogelio Magistrado; (16) Rolando Malaluan, Jr.; (17) Leoncio
Malate, Jr.; (18) Edwin Manzanilla; (19) Nila Marcial; (20) Roderick Nierves; (21) Larry
Ormilla; (22) Filemon Ortiz; (23) Cornelio Platon; (24) Alejandro Sampang; (25) Eric
Santiago; (26) Romualdo Simborio; (27) Lauro Sulit; and (28) Rommel Tagala.
Pictures show the illegal acts (participation in pickets/strikes despite the issuance of a
return-to-work order) committed by the aforelisted strikers.63

b. Strikers who participated in the May 28, 2001 were (1) Joel Agosto; (2) Alex Alejo;
(3) Erwin Alfonso; (4) Dennis Apolinario; (5) Melvin Apostol; (6) Rommel Arceta; (7)
Lester Atun; (8) Abel Berces; (9) Benny Bering; (10) Dexter Bolanos; (11) Marcelo
Cabezas; (12) Nelson Leo Capate; (13) Lorenzo Caraqueo; (14) Christopher Catapusan;
(15) Ricky Chavez; (16) Virgilio Colandog; (17) Claudio Correa; (18) Ed Cubelo; (19)
Reynaldo Cuevas; (20) Rene Dalisay; (21) Benigno David, Jr.; (22) Alex Del Mundo;
(23) Basilio Dela Cruz; (24) Roel Digma; (25) Aldrin Duyag; (26) Armando Ercillo; (27)
Delmar Espadilla; (28) Alexander Esteva; (29) Nikko Franco; (30) Dexter Fulgar; (31)
Dante Fulo; (32) Eduardo Gado; (33) Michael Gohilde; (34) Eugene Jay Hondrada II;
(35) Joey Javillonar; (36) Basilio Laqui; (37) Alberto Lomboy; (38) Geronimo Lopez;
(39) Rommel Macalindog; (40) Nixon Madrazo; (41) Valentin Magbalita; (42) Allan Jon
Malabanan; (43) Jonamar Manaog; (44) Bayani Manguil; (45) June Manigbas; (46)
Alfred Manjares; (47) Edwin Manzanilla; (48) Mayo Mata; (49) Leo Ojenal; (50) Allan
Oriana; (51) Rogelio Piamonte; (52) George Polutan; (53) Eric Santiago; (54) Bernabe
Saquilabon; (55) Alex Sierra; (56) Romualdo Simborio; (57) Lauro Sulit; (58) Elvisanto
Tabirao; (59) Edwin Tablizo; (60) Emmanuel Tulio; (61) Nestor Umiten; (62) Joseph
Vargas; (63) Edwin Vergara; and (64) Michael Teddy Yangyon.

Toyota presented photographs which show said employees conducting mass pickets and
concerted actions.64

Anent the grant of severance compensation to legally dismissed union members, Toyota
assails the turn-around by the CA in granting separation pay in its June 20, 2003
Resolution after initially denying it in its February 27, 2003 Decision. The company
asseverates that based on the CA finding that the illegal acts of said union members
constitute gross misconduct, not to mention the huge losses it suffered, then the grant
of separation pay was not proper.

The general rule is that when just causes for terminating the services of an employee
under Art. 282 of the Labor Code exist, the employee is not entitled to separation pay.
The apparent reason behind the forfeiture of the right to termination pay is that
lawbreakers should not benefit from their illegal acts. The dismissed employee,
however, is entitled to "whatever rights, benefits and privileges [s/he] may have under
the applicable individual or collective bargaining agreement with the employer or
voluntary employer policy or practice"65 or under the Labor Code and other existing
laws. This means that the employee, despite the dismissal for a valid cause, retains the
right to receive from the employer benefits provided by law, like accrued service
incentive leaves. With respect to benefits granted by the CBA provisions and voluntary
management policy or practice, the entitlement of the dismissed employees to the
benefits depends on the stipulations of the CBA or the company rules and policies.

As in any rule, there are exceptions. One exception where separation pay is given even
though an employee is validly dismissed is when the court finds justification in applying
the principle of social justice well entrenched in the 1987 Constitution. In Phil. Long
Distance Telephone Co. (PLDT) v. NLRC, the Court elucidated why social justice can
validate the grant of separation pay, thus:
The reason is that our Constitution is replete with positive commands for the promotion
of social justice, and particularly the protection of the rights of the workers. The
enhancement of their welfare is one of the primary concerns of the present charter. In
fact, instead of confining itself to the general commitment to the cause of labor in
Article II on the Declaration of Principles of State Policies, the new Constitution contains
a separate article devoted to the promotion of social justice and human rights with a
separate sub-topic for labor. Article XIII expressly recognizes the vital role of labor,
hand in hand with management, in the advancement of the national economy and the
welfare of the people in general. The categorical mandates in the Constitution for the
improvement of the lot of the workers are more than sufficient basis to justify the
award of separation pay in proper cases even if the dismissal be for cause.66

In the same case, the Court laid down the rule that severance compensation shall be
allowed only when the cause of the dismissal is other than serious misconduct or that
which reflects adversely on the employee's moral character. The Court succinctly
discussed the propriety of the grant of separation pay in this wise:

We hold that henceforth separation pay shall be allowed as a measure of social justice
only in those instances where the employee is validly dismissed for causes other than
serious misconduct or those reflecting on his moral character. Where the reason for the
valid dismissal is, for example, habitual intoxication or an offense involving moral
turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not
be required to give the dismissed employee separation pay, or financial assistance, or
whatever other name it is called, on the ground of social justice.

A contrary rule would, as the petitioner correctly argues, have the effect, of rewarding
rather than punishing the erring employee for his offense. And we do not agree that the
punishment is his dismissal only and that the separation pay has nothing to do with the
wrong he has committed. Of course it has. Indeed, if the employee who steals from the
company is granted separation pay even as he is validly dismissed, it is not unlikely
that he will commit a similar offense in his next employment because he thinks he can
expect a like leniency if he is again found out. This kind of misplaced compassion is not
going to do labor in general any good as it will encourage the infiltration of its ranks by
those who do not deserve the protection and concern of the Constitution.

The policy of social justice is not intended to countenance wrongdoing simply because it
is committed by the underprivileged. At best it may mitigate the penalty but it certainly
will not condone the offense. Compassion for the poor is an imperative of every
humane society but only when the recipient is not a rascal claiming an undeserved
privilege. Social justice cannot be permitted to be refuge of scoundrels any more than
can equity be an impediment to the punishment of the guilty. Those who invoke social
justice may do so only if their hands are clean and their motives blameless and not
simply because they happen to be poor. This great policy of our Constitution is not
meant for the protection of those who have proved they are not worthy of it, like the
workers who have tainted the cause of labor with the blemishes of their own
character.67

Explicit in PLDT are two exceptions when the NLRC or the courts should not grant
separation pay based on social justice'serious misconduct (which is the first ground for
dismissal under Art. 282) or acts that reflect on the moral character of the employee.
What is unclear is whether the ruling likewise precludes the grant of separation pay
when the employee is validly terminated from work on grounds laid down in Art. 282 of
the Labor Code other than serious misconduct.

A recall of recent cases decided bearing on the issue reveals that when the termination
is legally justified on any of the grounds under Art. 282, separation pay was not
allowed. In Ha Yuan Restaurant v. NLRC,68 we deleted the award of separation pay to
an employee who, while unprovoked, hit her co-worker's face, causing injuries, which
then resulted in a series of fights and scuffles between them. We viewed her act as
serious misconduct which did not warrant the award of separation pay. In House of
Sara Lee v. Rey,69 this Court deleted the award of separation pay to a branch
supervisor who regularly, without authorization, extended the payment deadlines of the
company's sales agents. Since the cause for the supervisor's dismissal involved her
integrity (which can be considered as breach of trust), she was not worthy of
compassion as to deserve separation pay based on her length of service. In Gustilo v.
Wyeth Phils., Inc.,70 this Court found no exceptional circumstance to warrant the grant
of financial assistance to an employee who repeatedly violated the company's
disciplinary rules and regulations and whose employment was thus terminated for gross
and habitual neglect of his duties. In the doctrinal case of San Miguel v. Lao,71 this
Court reversed and set aside the ruling of the CA granting retirement benefits or
separation pay to an employee who was dismissed for willful breach of trust and
confidence by causing the delivery of raw materials, which are needed for its glass
production plant, to its competitor. While a review of the case reports does not reveal a
case involving a termination by reason of the commission of a crime against the
employer or his/her family which dealt with the issue of separation pay, it would be
adding insult to injury if the employer would still be compelled to shell out money to the
offender after the harm done.

In all of the foregoing situations, the Court declined to grant termination pay because
the causes for dismissal recognized under Art. 282 of the Labor Code were serious or
grave in nature and attended by willful or wrongful intent or they reflected adversely on
the moral character of the employees. We therefore find that in addition to serious
misconduct, in dismissals based on other grounds under Art. 282 like willful
disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and
commission of a crime against the employer or his family, separation pay should not be
conceded to the dismissed employee.

In analogous causes for termination like inefficiency, drug use, and others, the NLRC or
the courts may opt to grant separation pay anchored on social justice in consideration
of the length of service of the employee, the amount involved, whether the act is the
first offense, the performance of the employee and the like, using the guideposts
enunciated in PLDT on the propriety of the award of separation pay.

In the case at bench, are the 227 striking employees entitled to separation pay? cra lawlibrary

In the instant case, the CA concluded that the illegal strikes committed by the Union
members constituted serious misconduct.72

The CA ratiocinated in this manner:

Neither can social justice justify the award to them of severance compensation or any
other form of financial assistance. x x x

xxx

Considering that the dismissal of the employees was due to their participation in the
illegal strikes as well as violation of the Code of Conduct of the company, the same
constitutes serious misconduct. A serious misconduct is a transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not mere error in judgment. In fact, in Panay
Electric Company, Inc. v. NLRC, the Supreme Court nullified the grant of separation
benefits to employees who unlawfully participated in an illegal strike in light of Article
264, Title VIII, Book V of the Labor Code, that, "any union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly
participates in the commission of illegal acts during a strike may be declared to have
lost his employment status."

The constitutional guarantee on social justice is not intended only for the poor but for
the rich as well. It is a policy of fairness to both labor and management. 73 (Emphasis
supplied.)

In disposing of the Union's plea for reconsideration of its February 27, 2003 Decision,
the CA however performed a volte-face by reinstating the award of separation pay.

The CA's grant of separation pay is an erroneous departure from our ruling in Phil. Long
Distance Telephone Co. v. NLRC that serious misconduct forecloses the award of
separation pay. Secondly, the advertence to the alleged honest belief on the part of the
227 employees that Toyota committed a breach of the duty to bargain collectively and
an abuse of valid exercise of management prerogative has not been substantiated by
the evidence extant on record. There can be no good faith in intentionally incurring
absences in a collective fashion from work on February 22 and 23, 2001 just to attend
the DOLE hearings. The Union's strategy was plainly to cripple the operations and bring
Toyota to its knees by inflicting substantial financial damage to the latter to compel
union recognition. The Union officials and members are supposed to know through
common sense that huge losses would befall the company by the abandonment of their
regular work. It was not disputed that Toyota lost more than PhP 50 million because of
the willful desertion of company operations in February 2001 by the dismissed union
members. In addition, further damage was experienced by Toyota when the Union
again resorted to illegal strikes from March 28 to April 12, 2001, when the gates of
Toyota were blocked and barricaded, and the company officials, employees, and
customers were intimidated and harassed. Moreover, they were fully aware of the
company rule on prohibition against concerted action inimical to the interests of the
company and hence, their resort to mass actions on several occasions in clear violation
of the company regulation cannot be excused nor justified. Lastly, they blatantly
violated the assumption/certification Order of the DOLE Secretary, exhibiting their lack
of obeisance to the rule of law. These acts indeed constituted serious misconduct.

A painstaking review of case law renders obtuse the Union's claim for separation pay.
In a slew of cases, this Court refrained from awarding separation pay or financial
assistance to union officers and members who were separated from service due to their
participation in or commission of illegal acts during strikes. In the recent case of Pilipino
Telephone Corporation v. Pilipino Telephone Employees Association (PILTEA),74 this
Court upheld the dismissal of union officers who participated and openly defied the
return-to-work order issued by the DOLE Secretary. No separation pay or financial
assistance was granted. In Sukhothai Cuisine and Restaurant v. Court of Appeals,75 this
Court declared that the union officers who participated in and the union members who
committed illegal acts during the illegal strike have lost their employment status. In this
case, the strike was held illegal because it violated agreements providing for
arbitration. Again, there was no award of separation pay nor financial assistance.
In Philippine Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees
Union,76 the strike was declared illegal because the means employed was illegal. We
upheld the validity of dismissing union members who committed illegal acts during the
strike, but again, without awarding separation pay or financial assistance to the erring
employees. In Samahang Manggagawa sa Sulpicio Lines, Inc. v. Sulpicio Lines,77 this
Court upheld the dismissal of union officers who participated in an illegal strike sans
any award of separation pay. Earlier, in Grand Boulevard Hotel v. Genuine Labor
Organization of Workers in Hotel, Restaurant and Allied Industries,78 we affirmed the
dismissal of the Union's officers who participated in an illegal strike without awarding
separation pay, despite the NLRC's declaration urging the company to give financial
assistance to the dismissed employees.79 In Interphil Laboratories Union-FFW, et al. v.
Interphil Laboratories, Inc.,80 this Court affirmed the dismissal of the union officers who
led the concerted action in refusing to render overtime work and causing "work
slowdowns." However, no separation pay or financial assistance was allowed. In CCBPI
Postmix Workers Union v. NLRC,81 this Court affirmed the dismissal of union officers
who participated in the strike and the union members who committed illegal acts while
on strike, without awarding them separation pay or financial assistance. In 1996,
in Allied Banking Corporation v. NLRC,82 this Court affirmed the dismissal of Union
officers and members, who staged a strike despite the DOLE Secretary's issuance of a
return to work order but did not award separation pay. In the earlier but more relevant
case of Chua v. NLRC,83 this Court deleted the NLRC's award of separation benefits to
an employee who participated in an unlawful and violent strike, which strike resulted in
multiple deaths and extensive property damage. In Chua, we viewed the infractions
committed by the union officers and members as a serious misconduct which resulted
in the deletion of the award of separation pay in conformance to the ruling in PLDT.
Based on existing jurisprudence, the award of separation pay to the Union officials and
members in the instant petitions cannot be sustained.

One last point to consider it is high time that employer and employee cease to view
each other as adversaries and instead recognize that theirs is a symbiotic relationship,
wherein they must rely on each other to ensure the success of the business. When they
consider only their own self-interests, and when they act only with their own benefit in
mind, both parties suffer from short-sightedness, failing to realize that they both have a
stake in the business. The employer wants the business to succeed, considering the
investment that has been made. The employee in turn, also wants the business to
succeed, as continued employment means a living, and the chance to better one's lot in
life. It is clear then that they both have the same goal, even if the benefit that results
may be greater for one party than the other. If this becomes a source of conflict, there
are various, more amicable means of settling disputes and of balancing interests that
do not add fuel to the fire, and instead open avenues for understanding and
cooperation between the employer and the employee. Even though strikes and lockouts
have been recognized as effective bargaining tools, it is an antiquated notion that they
are truly beneficial, as they only provide short-term solutions by forcing concessions
from one party; but staging such strikes would damage the working relationship
between employers and employees, thus endangering the business that they both want
to succeed. The more progressive and truly effective means of dispute resolution lies in
mediation, conciliation, and arbitration, which do not increase tension but instead
provide relief from them. In the end, an atmosphere of trust and understanding has
much more to offer a business relationship than the traditional enmity that has long
divided the employer and the employee.

WHEREFORE, the petitions in G.R. NOS. 158786 and 158789 are DENIED while those in
G.R. NOS. 158798-99 are GRANTED.

The June 20, 2003 CA Resolution in CA-G.R. SP Nos. 67100 and 67561 restoring the
grant of severance compensation is ANNULLED and SET ASIDE.

The February 27, 2003 CA Decision in CA-G.R. SP Nos. 67100 and 67561, which
affirmed the August 9, 2001 Decision of the NLRC but deleted the grant of severance
compensation, is REINSTATED and AFFIRMED.

No costs.

SO ORDERED.
A.C. 1928 December 19, 1980

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLION (IBP
Administrative Case No. MDD-1), petitioner,

FERNANDO, C.J.:

The full and plenary discretion in the exercise of its competence to reinstate a disbarred member of
the bar admits of no doubt. All the relevant factors bearing on the specific case, public interest, the
integrity of the profession and the welfare of the recreant who had purged himself of his guilt are
given their due weight. Respondent Marcial A. Edillon was disbarred on August 3, 1978, 1 the vote
being unanimous with the late.

Chief Justice Castro ponente. From June 5, 1979, he had repeatedly pleaded that he be reinstated.
The minute resolution dated October 23, 1980, granted such prayer. It was there made clear that it
"is without prejudice to issuing an extended opinion." 2

Before doing so, a recital of the background facts that led to the disbarment of respondent may not
be amiss. As set forth in the resolution penned by the late Chief Justice Castro: "On November 29.
1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors, unanimously adopted
Resolution No. 75-65 in Administrative case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for 'stubborn refusal to pay his membership dues' to the IBP
since the latter's constitution notwithstanding due notice. On January 21, 1976, the IBP, through its
then President Liliano B. Neri, submitted the said resolution to the Court for consideration and
approval,. Pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP, which. reads: ...
Should the delinquency further continue until the following June 29, the Board shall promptly inquire
into the cause or causes of the continued delinquency and take whatever action it shall deem
appropriate, including a recommendation to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the action taken should be submit by registered
mail to the member and to the Secretary of the Chapter concerned.' On January 27, 1976, the Court
required the respondent to comment on the resolution and letter adverted to above he submitted his
comment on February 23, 1976, reiterating his refusal to pay the membership fees due from him. On
March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to
Edillon's comment: On March 24, 1976, they submitted a joint reply. Thereafter, the case was set for
hearing on June 3, 1976. After the hearing, the parties were required to submit memoranda in
amplification of their oral arguments. The matter was thenceforth submitted for resolution." 3

Reference was then made to the authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from the Roll of Attorneys as found in
Rules of Court: 'Effect of non-payment of dues. — Subject to the provisions of Section 12 of this
Rule, default in the payment of annual dues for six months shall warrant suspension of membership
in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of
the name of the delinquent member from the Roll of Attorneys. 4

The submission of respondent Edillion as summarized in the aforesaid resolution "is that the above
provisions constitute an invasion of his constitutional rights in the sense that he is being compelled,
as a pre-condition to maintaining his status as a lawyer in good standing, to be a member of the IBP
and to pay the corresponding dues, and that as a consequence of this compelled financial support of
the said organization to which he is admittedly personally antagonistic, he is being deprived of the
rights to liberty and property guaranteed to him by the Constitution. Hence, the respondent
concludes, the above provisions of the Court Rule and of the IBP By-Laws are void and of no legal
force and effect. 5 It was pointed out in the resolution that such issues was raised on a previous case
before the Court, entitled 'Administrative Case No. 526, In the Matter of the Petition for the
Integration of the Bar of the Philippines, Roman Ozaeta, et al., Petitioners.' The Court exhaustively
considered all these matters in that case in its Resolution ordaining the integration of the Bar of the
Philippines, promulgated on January 9, 1973. 6 The unanimous conclusion reached by the Court was
that the integration of the Philippine Bar raises no constitutional question and is therefore legally
unobjectionable, "and, within the context of contemporary conditions in the Philippine, has become
an imperative means to raise the standards of the legal profession, improve the administration of
justice, and enable the Bar to discharge its public responsibility fully and effectively." 7

As mentioned at the outset, the vote was unanimous. From the time the decision was rendered,
there were various pleadings filed by respondent for reinstatement starting with a motion for
reconsideration dated August 19, 1978. Characterized as it was by persistence in his adamantine
refusal to admit the full competence of the Court on the matter, it was not unexpected that it would
be denied. So it turned out. 8 It was the consensus that he continued to be oblivious to certain balic
juridical concepts, the appreciation of which does not even require great depth of intellect. Since
respondent could not be said to be that deficient in legal knowledge and since his pleadings in other
cases coming before this Tribunal were quite literate, even if rather generously sprinkled with
invective for which he had been duly taken to task, there was the impression that his recalcitrance
arose from and sheer obstinacy. Necessary, the extreme penalty of disbarment visited on him was
more than justified.

Since then, however, there were other communications to this Court where a different attitude on his
part was discernible. 9 The tone of defiance was gone and circumstances of a mitigating character
invoked — the state of his health and his advanced age. He likewise spoke of the welfare of former
clients who still rely on him for counsel, their confidence apparently undiminished. For he had in his
career been a valiant, if at times unreasonable, defender of the causes entrusted to him.

This Court, in the light of the above, felt that reinstatement could be ordered and so it did in the
resolution of October 23, 1980. It made certain that there was full acceptance on his part of the
competence of this Tribunal in the exercise of its plenary power to regulate the legal profession and
can integrate the bar and that the dues were duly paid. Moreover, the fact that more than two years
had elapsed during which he war. barred from exercising his profession was likewise taken into
account. It may likewise be said that as in the case of the inherent power to punish for contempt and
paraphrasing the dictum of Justice Malcolm in Villavicencio v. Lukban, 10 the power to discipline,
especially if amounting to disbarment, should be exercised on the preservative and not on the
vindictive principle. 11

One last word. It has been pertinently observed that there is no irretrievable finality as far as
admission to the bar is concerned. So it is likewise as to loss of membership. What must ever be
borne in mind is that membership in the bar, to follow Cardozo, is a privilege burdened with
conditions. Failure to abide by any of them entails the loss of such privilege if the gravity thereof
warrant such drastic move. Thereafter a sufficient time having elapsed and after actuations
evidencing that there was due contrition on the part of the transgressor, he may once again be
considered for the restoration of such a privilege. Hence, our resolution of October 23, 1980.

The Court restores to membership to the bar Marcial A. Edillon.

 EN BANC

A.M. No. 1928 August 3, 1978

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP
Administrative Case No. MDD-1)

RESOLUTION

CASTRO, C.J.:

The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines.

On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors
unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal
of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership
dues" to the IBP since the latter's constitution notwithstanding due notice.

On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said
resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III
of the By-Laws of the IBP, which reads:

.... Should the delinquency further continue until the following June 29, the Board
shall promptly inquire into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned.

On January 27, 1976, the Court required the respondent to comment on the resolution and letter
adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay
the membership fees due from him.

On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to
Edillon's comment: on March 24, 1976, they submitted a joint reply.

Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were
required to submit memoranda in amplification of their oral arguments. The matter was thenceforth
submitted for resolution.

At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety
and necessity of the integration of the Bar of the Philippines are in essence conceded. The
respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as
the Court Rule) 1 — in accordance with which the Bar of the Philippines was integrated — and to the
provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited).

The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in
Section 10 of the Court Rule, which reads:

SEC. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of

this Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys.

The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the
Court Rule:

SECTION 1. Organization. — There is hereby organized an official national body to

be known as the 'Integrated Bar of the Philippines,' composed of all persons whose
names now appear or may hereafter be included in the Roll of Attorneys of the
Supreme Court.

The obligation to pay membership dues is couched in the following words of the Court Rule:

SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. ...

The core of the respondent's arguments is that the above provisions constitute an invasion of his
constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his
status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues,
and that as a consequence of this compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the rights to liberty and property
guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of
the Court Rule and of the IBP By-Laws are void and of no legal force and effect.

The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of
Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but
is rather of an "administrative nature pertaining to an administrative body."

The case at bar is not the first one that has reached the Court relating to constitutional issues that
inevitably and inextricably come up to the surface whenever attempts are made to regulate the
practice of law, define the conditions of such practice, or revoke the license granted for the exercise
of the legal profession.

The matters here complained of are the very same issues raised in a previous case before the
Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the
Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all
these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was

... fully convinced, after a thoroughgoing conscientious study of all the arguments
adduced in Adm. Case No. 526 and the authoritative materials and the mass of
factual data contained in the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine Bar is 'perfectly constitutional and
legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.

An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished
from bar associations organized by individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an
official national body of which all lawyers are required to be members. They are, therefore, subject to
all the rules prescribed for the governance of the Bar, including the requirement of payment of a
reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which constitutes sufficient
reason for investigation by the Bar and, upon proper cause appearing, a recommendation for
discipline or disbarment of the offending member. 2

The integration of the Philippine Bar was obviously dictated by overriding considerations of public
interest and public welfare to such an extent as more than constitutionally and legally justifies the
restrictions that integration imposes upon the personal interests and personal convenience of
individual lawyers. 3

Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have
been uniformly and universally sustained as a valid exercise of the police power over an important
profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation, and takes part in one of the most
important functions of the State — the administration of justice — as an officer of the court. 4 The
practice of law being clothed with public interest, the holder of this privilege must submit to a degree
of control for the common good, to the extent of the interest he has created. As the U. S. Supreme
Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the
equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).

When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to
"adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall
see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of justice, and enable the Bar
to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the
Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973,
and the President of the Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the demands of pressing public
necessity.

The State, in order to promote the general welfare, may interfere with and regulate personal liberty,
property and occupations. Persons and property may be subjected to restraints and burdens in order
to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To
this fundamental principle of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted
power of the State to restrain some individuals from all freedom, and all individuals from some
freedom.
But the most compelling argument sustaining the constitutionality and validity of Bar integration in
the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5
(5) of Article X of the 1973 Constitution of the Philippines, which reads:

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts,
and the admission to the practice of law and the integration of the Bar ...,

and Section 1 of Republic Act No. 6397, which reads:

SECTION 1. Within two years from the approval of this Act, the Supreme Court may
adopt rules of Court to effect the integration of the Philippine Bar under such
conditions as it shall see fit in order to raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public
responsibility more effectively.

Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No.
6397), and looking solely to the language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and
the admission to the practice of law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases regarding the admission to and
supervision of the practice of law.

Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his
exercise of the said profession, which affect the society at large, were (and are) subject to the power
of the body politic to require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with some of his liberties. If
he did not wish to submit himself to such reasonable interference and regulation, he should not have
clothed the public with an interest in his concerns.

On this score alone, the case for the respondent must already fall.

The issues being of constitutional dimension, however, we now concisely deal with them seriatim.

1. The first objection posed by the respondent is that the Court is without power to compel him to
become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is
unconstitutional for it impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative
of his constitutional freedom to associate. 6

Integration does not make a lawyer a member of any group of which he is not already a member. He
became a member of the Bar when he passed the Bar examinations. 7 All that integration actually
does is to provide an official national organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program — the lawyers.9

Assuming that the questioned provision does in a sense compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10

2. The second issue posed by the respondent is that the provision of the Court Rule requiring
payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court,
under its constitutional power and duty to promulgate rules concerning the admission to the practice
of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) —
which power the respondent acknowledges — from requiring members of a privileged class, such as
lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession
to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the penalty provisions would amount to a
deprivation of property without due process and hence infringes on one of his constitutional rights.
Whether the practice of law is a property right, in the sense of its being one that entitles the holder of
a license to practice a profession, we do not here pause to consider at length, as it clear that under
the police power of the State, and under the necessary powers granted to the Court to perpetuate its
existence, the respondent's right to practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure
is recognize, then a penalty designed to enforce its payment, which penalty may be avoided
altogether by payment, is not void as unreasonable or arbitrary. 12

But we must here emphasize that the practice of law is not a property right but a mere
privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance
with the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a
lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension,
disbarment and reinstatement of lawyers and their regulation and supervision have been and are
indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding
such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar
Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court — appropriate, indeed necessary, to the proper
administration of justice ... the argument that this is an arbitrary power which the court is arrogating
to itself or accepting from the legislative likewise misconceives the nature of the duty. It has
limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a
brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an
honorable profession and to protect the public from overreaching and fraud. The very burden of the
duty is itself a guaranty that the power will not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to
the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the
practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in
the Court.

We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the
Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent
Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from
the Roll of Attorneys of the Court.

Fernando, Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma, Aquino, Concepcion, Jr., Santos,
Fernandez and Guerrero, JJ., concur.
G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,

vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:

The fundamental right of the people to information on matters of public concern is invoked in this
special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service
Commission. The respondent had earlier denied Legaspi's request for information on the civil service
eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These
government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to
acquire the information, petitioner prays for the issuance of the extraordinary writ of mandamus to
compel the respondent Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R.
No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973
Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official
Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior
to the recognition of the right in said Constitution the statutory right to information provided for in the
Land Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in
another mandamus proceeding, this time to demand access to the records of the Register of Deeds
for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80
Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the Bill
of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. 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.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec.
7 of the 1987 Constitution with the addition of the phrase, "as well as to government research data
used as basis for policy development." The new provision reads:

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
stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right
to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be
provided for by the Legislature are reasonable conditions and limitations upon the access to be
afforded which must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it
cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right
and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption
of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such
as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any
clear legal right to be informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in
securing this particular information. He further argues that there is no ministerial duty on the part of
the Commission to furnish the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved
by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said
party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil.
1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that
he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this
suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in
the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague
reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on
the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon
the right of the people to information on matters of public concern, which, by its very nature, is a
public right. It has been held that:

* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being sufficient to show
that he is a citizen and as such interested in the execution of the laws * * * (Tanada
et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion
of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is
a citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that
even those who have no direct or tangible interest in any real estate transaction are part of the
"public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall
be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:
 * * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces
every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of
inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p.
387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the
alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing
to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on the
part of those who govern, to respect and protect that right. That is the very essence of the Bill of
Rights in a constitutional regime. Only governments operating under fundamental rules defining the
limits of their power so as to shield individual rights against its arbitrary exercise can properly claim
to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations
imposed upon it by the Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records,
documents, papers and in addition, government research data used as basis for policy development,
subject to such limitations as may be provided by law. The guarantee has been further enhanced in
the New Constitution with the adoption of a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:

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.
11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared
as an imperative duty of the government officials concerned to publish all important legislative acts
and resolutions of a public nature as well as all executive orders and proclamations of general
applicability. We granted mandamus in said case, and in the process, We found occasion to
expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be

informed on matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v. Tuvera, supra, at 39).
(Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the examination of
public records, specifically, the records in the Office of the Register of Deeds, is emphasized
in Subido vs. Ozaeta, supra:

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. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose
sight of the reasonable regulations which may be imposed by said agencies in custody of public
records on the manner in which the right to information may be exercised by the public. In
the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in
which persons desiring to do so, may inspect, examine or copy records relating to registered lands.
However, the regulations which the Register of Deeds may promulgate are confined to:

* * * prescribing 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 books and documents and other employees may be prevented, that
the right of other persons entitled to make inspection may be insured * * * (Subido vs.
Ozaeta, 80 Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to
regulate the manner of inspection by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow examination of the criminal docket
records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the
complainant to open and view the subject records, We absolved the respondent. In effect, We have
also held that the rules and conditions imposed by him upon the manner of examining the public
records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A
distinction has to be made between the discretion to refuse outright the disclosure of or access to a
particular information and the authority to regulate the manner in which the access is to be afforded.
The first is a limitation upon the availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to regulate access is to be exercised
solely to the end that damage to, or loss of, public records may be avoided, undue interference with
the duties of said agencies may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. The
decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public concern is a
recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free
discussion enables members of society to cope with the exigencies of their time (Thornhill vs.
Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in
democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better
perspective of the vital issues confronting the nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It does
not open every door to any and all information. Under the Constitution, access to official records,
papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second
sentence). The law may therefore exempt certain types of information from public scrutiny, such as
those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91,
September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be circumscribed by the nature of the
information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of public interest or public concern.

a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any discretion
to grant or deny access. In case of denial of access, the government agency has the burden of
showing that the information requested is not of public concern, or, if it is of public concern, that the
same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to
dilute the constitutional right. As aptly observed, ". . . the government is in an advantageous position
to marshall and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To
safeguard the constitutional right, every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access may be compelled by a writ of
Mandamus.

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 in a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate
notice to the public of the various laws which are to regulate the actions and conduct of citizens.
In Subido vs. Ozaeta, supra, the public concern deemed covered by the statutory right was the
knowledge of those real estate transactions which some believed to have been registered in
violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to
be determined, as far as practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by competitive examination.
(Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who
are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for
their respective positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of
the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has
failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know
who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names of
those who pass the civil service examinations, as in bar examinations and licensure examinations
for various professions, are released to the public. Hence, there is nothing secret about one's civil
service eligibility, if actually possessed. Petitioner's request is, therefore, neither unusual nor
unreasonable. And when, as in this case, the government employees concerned claim to be civil
service eligibles, the public, through any citizen, has a right to verify their professed eligibilities from
the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express
limitations under the law upon access to the register of civil service eligibles for said position, the
duty of the respondent Commission to confirm or deny the civil service eligibility of any person
occupying the position becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the
position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and
Mariano Agas, for said position in the Health Department of Cebu City, as requested by the
petitioner Valentin L. Legaspi.

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

Feliciano, J., is on leave.

G.R. No. 130716 December 9, 1998

FRANCISCO I. CHAVEZ, petitioner,

vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL
GUNIGUNDO (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON,
CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-
intervention.

PANGANIBAN, J.:

Petitioner asks this Court to define the nature and the extent of the people's constitutional right to
information on matters of public concern. Does this right include access to the terms of government
negotiations prior to their consummation or conclusion? May the government, through the
Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of
a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More
specifically, are the "General Agreement" and "Supplemental Agreement," both dated December 28,
1993 and executed between the PCGG and the Marcos heirs, valid and binding?

The Case

These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin
respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any
greement with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the
properties and assets of Ferdinand Marcos located in the Philippines and/or abroad — including the
so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and
agreement, be they ongoing or perfected, and all documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos heirs."1

The Facts

Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the
prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public
treasury and the systematic subjugation of the country's economy," alleges that what impelled him to
bring this action were several news reports 2 bannered in a number of broadsheets sometime in
September 1997. These news items referred to (1) the alleged discovery of billions of dollars of
Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution
of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or
share these assets.

Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to
disclose publicly all its transactions involving the national interest,4 demands that respondents make
public any and all negotiations and agreements pertaining to PCGG's task of recovering the
Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth
involves an issue of "paramount public interest," since it has a "debilitating effect on the country's
economy" that would be greatly prejudicial to the national interest of the Filipino people. Hence, the
people in general have a right to know the transactions or deals being contrived and effected by the
government.
Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos
heirs. They claim, though, that petitioner's action is premature, because there is no showing that he
has asked the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG
may not yet be compelled to make any disclosure, since the proposed terms and conditions of the
Agreements have not become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the
Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E.
Marcos, and that the Republic opposed such move on the principal grounds that (1) said
Agreements have not been ratified by or even submitted to the President for approval, pursuant to
Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their
undertakings therein, particularly the collation and submission of an inventory of their assets. The
Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan
dismissed a similar petition filed by the Marcoses' attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG
Chairman Magtanggol Gunigundo, categorically stated:

This is to reiterate my previous position embodied in the Palace Press Release of 6

April 1995 that I have not authorized you to approve the Compromise Agreements of
December 28, 1993 or any agreement at all with the Marcoses, and would have
disapproved them had they been submitted to me.

The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to
approve said Agreements, which I reserve for myself as President of the Republic of
the Philippines.

The assailed principal Agreement 6 reads:

GENERAL AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between —

The Republic of the Philippines, through the Presidential Commission

on Good Government (PCGG), a governmental agency vested with
authority defined under Executive Orders Nos. 1, 2 and 14, with
offices at the philcomcen Building, Pasig, Metro Manila, represented
by its Chairman referred to as FIRST PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez

Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with
address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila,
and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E.
Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.

W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism
and love of country and of the entire Filipino people, and their desire to set up a
foundation and finance impact projects like installation of power plants in selected
rural areas and initiation of other community projects for the empowerment of the
people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal
Tribunal of December 21, 1990, that the $356 million belongs in principle to the
Republic of the Philippines provided certain conditionalities are met, but even after 7
years, the FIRST PARTY has not been able to procure a final judgment of conviction
against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation

which, as proven by the past 7 years, is consuming money, time and effort, and is
counter-productive and ties up assets which the FIRST PARTY could otherwise
utilize for its Comprehensive Agrarian Reform Program, and other urgent needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity
and reconciliation in order to bind the nation's wounds and start the process of
rebuilding this nation as it goes on to the twenty-first century;

WHEREAS, this Agreement settles all claims and counterclaims which the parties
may have against one another, whether past, present, or future, matured or inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set forth
herein, the parties agree as follows:

1. The parties will collate all assets presumed to be

owned by, or held by other parties for the benefit of,
the PRIVATE PARTY for purposes of determining the
totality of the assets covered by the settlement. The
subject assets shall be classified by the nature
thereof, namely: (a) real estate; (b) jewelry; (c)
paintings and other works of art; (d) securities; (e)
funds on deposit; (f) precious metals, if any, and (g)
miscellaneous assets or assets which could not
appropriately fall under any of the preceding
classification. The list shall be based on the full
disclosure of the PRIVATE PARTY to insure its
accuracy.

2. Based on the inventory, the FIRST PARTY shall

determine which shall be ceded to the FIRST PARTY,
and which shall be assigned to/retained by the
PRIVATE PARTY. The assets of the PRIVATE
PARTY shall be net of and exempt from, any form of
taxes due the Republic of the Philippines. However,
considering the unavailability of all pertinent and
relevant documents and information as to balances
and ownership, the actual specification of assets to be
retained by the PRIVATE PARTY shall be covered by
supplemental agreements which shall form part of this
Agreement.

3. Foreign assets which the PRIVATE PARTY shall

fully disclose but which are held by trustees,
nominees, agents or foundations are hereby waived
over by the PRIVATE PARTY in favor of the FIRST
PARTY. For this purpose, the parties shall cooperate
in taking the appropriate action, judicial and/or
extrajudicial, to recover the same for the FIRST
PARTY.

4. All disclosures of assets made by the PRIVATE

PARTY shall not be used as evidence by the FIRST
PARTY in any criminal, civil, tax or administrative
case, but shall be valid and binding against said
PARTY for use by the FIRST PARTY in withdrawing
any account and/or recovering any asset. The
PRIVATE PARTY withdraws any objection to the
withdrawal by and/or release to the FIRST PARTY by
the Swiss banks and/or Swiss authorities of the $356
million, its accrued interests, and/or any other
account; over which the PRIVATE PARTY waives any
right, interest or participation in favor of the FIRST
PARTY. However, any withdrawal or release of any
account aforementioned by the FIRST PARTY shall
be made in the presence of any authorized
representative of the PRIVATE PARTY.

5. The trustees, custodians, safekeepers,

depositaries, agents, nominees, administrators,
lawyers, or any other party acting in similar capacity in
behalf of the PRIVATE PARTY are hereby informed
through this General Agreement to insure that it is
fully implemented and this shall serve as absolute
authority from both parties for full disclosure to the
FIRST PARTY of said assets and for the FIRST
PARTY to withdraw said account and/or assets and
any other assets which the FIRST PARTY on its own
or through the help of the PRIVATE PARTY/their
trustees, etc., may discover.

6. Any asset which may be discovered in the future as

belonging to the PRIVATE PARTY or is being held by
another for the benefit of the PRIVATE PARTY and
which is not included in the list per No. 1 for whatever
reason shall automatically belong to the FIRST
PARTY, and the PRIVATE PARTY in accordance with
No. 4 above, waives any right thereto.

7. This Agreement shall be binding on and inure to

the benefit of, the parties and their respective legal
 representatives, successors and assigns and shall
supersede any other prior agreement.

8. The PARTIES shall submit this and any other

implementing Agreements to the President of the
Philippines for approval. In the same manner, the
PRIVATE PARTY shall provide the FIRST PARTY
assistance by way of testimony or deposition on any
information it may have that could shed light on the
cases being pursued by the FIRST PARTY against
other parties. The FIRST PARTY shall desist from
instituting new suits already subject of this Agreement
against the PRIVATE PARTY and cause the
dismissal of all other cases pending in the
Sandiganbayan and in other courts.

9. In case of violation by the PRIVATE PARTY of any

of the conditions herein contained, the PARTIES shall
be restored automatically to the status quo ante the
signing of this Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty.
Simeon M. Mesina, Jr., as their only Attorney-in-Fact.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E.
MARCOS,

IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND
R.

MARCOS, JR., & IRENE MARCOS-

ARANETA

By:
 [Sgd.] IMELDA ROMUALDEZ-
MARCOS

[Sgd.] MA. IMELDA MARCOS-

MANOTOC

FERDINAND R. MARCOS, JR.7

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA,

JR.

Counsel & Attorney-in-

Fact

Petitioner also denounces this supplement to the above Agreement:8

SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and between —

The Republic of the Philippines, through the Presidential Commission

on Good Government (PCGG), a governmental agency vested with
authority defined under Executive Orders Nos. 1, 2 and 14, with
offices at the Philcomcen Building, Pasig, Metro Manila, represented
by its Chairman Magtanggol C. Gunigundo, hereinafter referred to as
the FIRST PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez

Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with
address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila,
and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E.
Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.

W I T N E S S E T H:

The parties in this case entered into a General Agreement dated Dec.
28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue their

interest and/or sue over local assets located in the Philippines against
parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the recovery
and/or withdrawal of all assets including lawyers' fees, agents' fees,
 nominees' service fees, bank charges, traveling expenses and all
other expenses related thereto shall be for the account of the
PRIVATE PARTY.

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY
shall be entitled to the equivalent of 25% of the amount that may be eventually
withdrawn from said $356 million Swiss deposits.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS,

IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND R.

MARCOS, JR., & IRENE MARCOS-

ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.9

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact

Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23,
enjoining respondents, their agents and/or representatives from "entering into, or perfecting and/or
executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and
concerning their ill-gotten wealth."

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues:

(a) Procedural:

(1) Whether or not the petitioner has the personality or legal standing to file the
instant petition; and

(2) Whether or not this Court is the proper court before which this action may be filed.

(b) Substantive:

(1) Whether or not this Court could require the PCGG to disclose to the public the
details of any agreement, perfected or not, with the Marcoses; and

(2) Whether or not there exist any legal restraints against a compromise agreement
between the Marcoses and the PCGG relative to the Marcoses' ill-gotten wealth. 11

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court
a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are
"among the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate
is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo
Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis
14796, June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As
such, they claim to have personal and direct interest in the subject matter of the instant case, since a
distribution or disposition of the Marcos properties may adversely affect their legitimate claims. In a
minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and
required the respondents to comment thereon. The September 25, 1998 Comment 12 of the solicitor
general on said motion merely reiterated his aforecited arguments against the main petition. 13

The Court's Ruling

The petition id imbued with merit.

First Procedural Issue:

Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to
file the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and [is],
in truth hand in fact, part of the public treasury," any compromise in relation to it would constitute a
diminution of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not
substantial, recovery of such assets.
Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is an
issue "of transcendental importance the public." He asserts that ordinary taxpayers have a right to
initiate and prosecute actions questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are "of paramount public interest;" and if they "immeasurably
affect the social, economic, and moral well-being of the people."

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, 14 such as in this case. He invokes several
decisions 15 of this Court which have set aside the procedural matter of locus standi, when the
subject of the case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no
standing to institute the present action, because no expenditure of public funds is involved and said
petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant
petition is premature, since there is no showing that petitioner has requested PCGG to disclose any
such negotiations and agreements; or that, if he has, the Commission has refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his
legal standing to institute the instant petition. Access to public documents and records is a public
right, and the real parties in interest are the people themselves. 16

In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the
object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the
real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested
in the execution of the laws, he need not show that he has any legal or special interest in the result
of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be informed on
matters of public concern, a right then recognized in Section 6, Article IV of the 1973
Constitution, 19 in connection with the rule that laws in order to be valid and enforceable must be
published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners'
legal standing, the Court declared that the right they sought to be enforced "is a public right
recognized by no less than the fundamental law of the land."

Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that "when
a mandamus proceeding involves the assertion of a public right, the requirement of personal interest
is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public'
which possesses the right." 21

Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, the management and the operation of
the Manila International Container Terminal, "public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved." We concluded that, as a consequence, the
disclosure provision in the Constitution would constitute sufficient authority for upholding the
petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to
official records, documents and papers — a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of
the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the
enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should
be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention
of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the
Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have
a legal interest in the subject matter of the instant case, since a distribution or disposition of the
Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims.

Second Procedural Issue:

The Court's Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one that is not
intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was
proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court
original jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought
before this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights
by the PCGG. He alleges that the assailed agreements are already the very lis mota in
Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is
premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in
the graft court, for the approval of the subject Agreements. Such opposition belies petitioner's claim
that the government, through respondents, has concluded a settlement with the Marcoses as
regards their alleged ill-gotten assets.

In Tañada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to
enforce a public right as well as to compel performance of a public duty mandated by no less than
the fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly confers upon the
Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto
and habeas corpus.

Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is
pending resolution. There may seem to be some merit in such argument, if petitioner is merely
seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the
public the terms contained in said Agreements. However, petitioner is here seeking the public
disclose of "all negotiations and agreement, be they ongoing or perfected, and documents related to
or relating to such negotiations and agreement between the PCGG and the Marcos heirs."

In other words, this petition is not confined to the Agreements that have already been drawn, but
likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos
loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin
constitutional provisions on "public transactions." This broad and prospective relief sought by the
instant petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of

Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a compromise
settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the
following provisions of the Constitution:

Sec. 7 [Article III]. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.

Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest.

Respondents' opposite view is that the above constitutional provisions refer to completed and
operative official acts, not to those still being considered. As regards the assailed Agreements
entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued,
because said Agreements have not been approved by the President, and the Marcos heirs have
failed to fulfill their express undertaking therein. Thus, the Agreements have not become effective.
Respondents add that they are not aware of any ongoing negotiation for another compromise with
the Marcoses regarding their alleged ill-gotten assets.

The "information" and the "transactions" referred to in the subject provisions of the Constitution have
as yet no defined scope and extent. There are no specific laws prescribing the exact limitations
within which the right may be exercised or the correlative state duty may be obliged. However, the
following are some of the recognized restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other
confidential information.

Limitations to the Right:

(1) National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and
other national security matters. 24 But where there is no need to protect such state secrets, the
privilege may not be invoked to withhold documents and other information, 25 provided that they are
examined "in strict confidence" and given "scrupulous protection."

Likewise, information on inter-government exchanges prior to the conclusion of treaties and

executive agreements may be subject to reasonable safeguards for the sake of national interest. 26

(2) Trade Secrets and

Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters
and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property
Code 27 and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank
Deposits Act 28) are also exempted from compulsory disclosure. 29
 (3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the apprehension,
the prosecution and the detention of criminals, 30 which courts may nor inquire into prior to such
arrest, detention and prosecution. Efforts at effective law enforcement would be seriously
jeopardized by free public access to, for example, police information regarding rescue operations,
the whereabouts of fugitives, or leads on covert criminal activities.

(4) Other Confidential

Information

The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging
"confidential or classified information officially known to them by reason of their office and not made
available to the public." 32

Other acknowledged limitations to information access include diplomatic correspondence, closed

door Cabinet meetings and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court. 33

Scope: Matters of Public Concern and

Transactions Involving Public Interest

In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of
public concern," access to which may be limited by law. Similarly, the state policy of full public
disclosure extends only to "transactions involving public interest" and may also be "subject to
reasonable conditions prescribed by law." As to the meanings of the terms "public interest" and
"public concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated:

In determining whether or not a particular information is of public concern there is no

rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.

Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who
are eligibles." So was the need to give the general public adequate notification of various laws that
regulate and affect the actions and conduct of citizens, as held in Tañada. Likewise did the "public
nature of the loanable funds of the GSIS and the public office held by the alleged borrowers
(members of the defunct Batasang Pambansa)" qualify the information sought in Valmonte as
matters of public interest and concern. In Aquino-Sarmiento v. Morato, 36 the Court also held that
official acts of public officers done in pursuit if their official functions are public in character; hence,
the records pertaining to such official acts and decisions are within the ambit of the constitutional
right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to "provide information
on their policies and procedures in clear and understandable language, [and] ensure openness of
information, public consultations and hearings whenever appropriate . . .," except when
"otherwise provided by law or when required by the public interest." In particular, the law mandates
free public access, at reasonable hours, to the annual performance reports of offices and agencies
of government and government-owned or controlled corporations; and the statements of assets,
liabilities and financial disclosures of all public officials and employees. 37

In general, writings coming into the hands of public officers in connection with their official functions
must be accessible to the public, consistent with the policy of transparency of governmental affairs.
This principle is aimed at affording the people an opportunity to determine whether those to whom
they have entrusted the affairs of the government are honesty, faithfully and competently performing
their functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of
thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the
affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. 40

The Nature of the Marcoses'

Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February 1986, the
new government headed by President Corazon C. Aquino was specifically mandated to "[r]ecover ill-
gotten properties amassed by the leaders and supporters of the previous regime and [to] protect the
interest of the people through orders of sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of
legislative enactments) dealt with the recovery of these alleged ill-gotten properties.

Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled
the country, created the PCGG which was primarily tasked to assist the President in the recovery of
vast government resources allegedly amassed by former President Marcos, his immediate family,
relatives and close associates both here and abroad.

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had
knowledge or possession of ill-gotten assets and properties were warned and, under pain of
penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from
otherwise frustrating or obstructing the recovery efforts of the government.

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG
which, taking into account the overriding considerations of national interest and national survival,
required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the people, there is
no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern
and imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very nature,
assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten wealth"
refers to assets and properties purportedly acquired, directly or indirectly, by former President
Marcos, his immediate family, relatives and close associates through or as a result of their improper
or illegal use of government funds or properties; or their having taken undue advantage of their
public office; or their use of powers, influences or relationships, "resulting in their unjust enrichment
and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines."
Clearly, the assets and properties referred to supposedly originated from the government itself. To
all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will
be returned to the public treasury, subject only to the satisfaction of positive claims of certain
persons as may be adjudged by competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses'
purported ill-gotten wealth.

Access to Information

on Negotiating Terms

But does the constitutional provision likewise guarantee access to information

regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was
sought and clearly addressed by the constitutional commissioners during their deliberations, which
we quote hereunder: 43

MR. SUAREZ. And when we say "transactions" which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or does he refer to the contract
itself?

MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can
cover both steps leading to a contract, and already a consummated contract, Mr.
Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the

consummation of the transaction?

MR. OPLE. Yes, subject to reasonable safeguards on the national interest.

Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its
officers, as well as other government representatives, to disclose sufficient public information on any
proposed settlement they have decided to take up with the ostensible owners and holders of ill-
gotten wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage
when common assertions are still in the process of being formulated or are in the "exploratory"
stage. There is a need, of course, to observe the same restrictions on disclosure of information in
general, as discussed earlier — such as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information.

Second Substantive Issue:

Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and the
Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an
unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a compromise with
the Marcos heirs, provided the agreement does not violate any law.

Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following
matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any
ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future
legitimate. 45 And like any other contract, the terms and conditions of a compromise must not be
contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding and
has the force of law between the parties, 47 unless the consent of a party is vitiated — such as by
mistake, fraud, violence, intimidation or undue influence — or when there is forgery, or if the terms of
the settlment are so palpably unconscionable. In the latter instances, the agreement may be
invalidated by the courts. 48

Effect of Compromise

on Civil Actions

One of the consequences of a compromise, and usually its primary object, is to avoid or to end a
litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair
settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who shows
a sincere desire to compromise. 51

In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and
criminal immunity to Jose Y. Campos and the family, the Court held that in the absence an express
prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG
cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and expeditious
recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same
principle was upheld in Benedicto v. Board of Administrators of Television Stations RPN, BBC and
IBC 53 and Republic v. Benedicto, 54 which ruled in favor of the validity of the PCGG compromise
agreement with Roberto S. Benedicto.

Immunity from

Criminal Prosecution

However, any compromise relating to the civil liability arising from an offense does not automatically
terminate the criminal proceeding against or extinguish the criminal liability of the malefactor. 55 While
a compromise in civil suits is expressly authorized by law, there is no similar general sanction as
regards criminal liability. The authority must be specifically conferred. In the present case, the power
to grant criminal immunity was confered on PCGG by Section 5 of EO No. 14, as amended by EO
No. 14-A, whci provides:

Sec. 5. The President Commission on Good Government is authorized to grant

immunity from criminal prosecution to any person who provides information or
testifies in any investigation conducted by such Commission to establish the unlawful
manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such
information or testimony is necessary to ascertain or prove the latter's guilt or his civil
liability. The immunity thereby granted shall be continued to protect the witness who
 repeats such testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.

The above provision specifies that the PCGG may exercise such authority under these conditions:
(1) the person to whom criminal immunity is granted provides information or testifies in an
investigation conducted by the Commission; (2) the information or testimony pertains to the unlawful
manner in which the respondent, defendant or accused acquired or accumulated ill-gotten property;
and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such
individual. From the wording of the law, it can be easily deducted that the person referred to is
a witness in the proceeding, not the principal respondent, defendant or accused.

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his
family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission,
his voluntary surrender of the properties and assets [—] disclosed and declared by him to belong to
deposed President Ferdinand E. Marcos [—] to the Government of the Republic of the Philippines[;]
his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as
determined by the Philippine Government." 56 Moreover, the grant of criminal immunity to the
Camposes and the Benedictos was limited to acts and omissions prior to February 25, 1996. At the
time such immunity was granted, no criminal cases have yet been filed against them before the
competent court.

Validity of the PCGG-Marcos

Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG and the
Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not
conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity
under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of
ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is
applicable mainly to witnesses who provide information or testify against a respondent, defendant or
accused in an ill-gotten wealth case.

While the General Agreement states that the Marcoses "shall provide the [government] assistance
by way of testimony or deposition on any information [they] may have that could shed light on the
cases being pursued by the [government] against other parties," 57 the clause does not fully comply
with the law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro
forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that
any of the Marcos heirs has indeed provided vital information against any respondent or defendant
as to the manner in which the latter may have unlawfully acquired public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of
taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Construction.
The power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in
the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically provides: "No
law granting any tax exemption shall be passed without the concurrence of a majority of all the
Member of the Congress." The PCGG has absolutely no power to grant tax exemptions, even under
the cover of its authority to compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their
properties, such law will definitely not pass the test of the equal protection clause under the Bill of
Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class
legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable." 59

Neither can the stipulation be construed to fall within the power of the commissioner of internal
revenue to compromise taxes. Such authority may be exercised only when (1) there is reasonable
doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position
demonstrates a clear inability to pay. 60 Definitely, neither requisite is present in the case of the
Marcoses, because under the Agreement they are effectively conceding the validity of the claims
against their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax
exemption fall within the power of the commissioner to abate or cancel a tax liability. This power can
be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the
administration and collection costs involved do not justify the collection of the tax due. 61 In this
instance, the cancellation of tax liability is done even before the determination of the amount due. In
any event, criminal violations of the Tax Code, for which legal actions have been filed in court or in
which fraud is involved, cannot be compromised. 62

Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other court. 63 This is a direct encroachment on judicial
powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has
been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within
the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is
handled, including the matter of whom to present as witnesses, may lie within the sound discretion of
the government prosecution; 64 but the court decides, based on the evidence proffered, in what
manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a
resolution, even by the justice secretary, to withdraw the information or to dismiss the
complaint. 65 The prosecution's motion to withdraw or to dismiss is not the least binding upon the
court. On the contrary, decisional rules require the trial court to make its own evaluation of the merit
of the case, because granting such motion is equivalent to effecting a disposition of the case itself. 66

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the
dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is
not within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims, "whether past, present, or future,
matured or inchoate," against the Marcoses. 67 Again, this ill-encompassing stipulation is contrary to
law. Under the Civil Code, an action for future fraud may not be waived. 68 The stipulation in the
Agreement does not specify the exact scope of future claims against the Marcoses that the
government thereby relinquishes. Such vague and broad statement may well be interpreted to
include all future illegal acts of any of the Marcos heirs, practically giving them a license to
perpetrate fraud against the government without any liability at all. This is a palpable violation of the
due process and equal protection guarantees of the Constitution. It effectively ensconces the
Marcoses beyond the reach of the law. It also sets a dangerous precedent for public accountability.
It is a virtual warrant for public officials to amass public funds illegally, since there is an open option
to compromise their liability in exchange for only a portion of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which the parties
shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an
inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for determining which assets shall
be forfeited by the government and which shall be retained by the Marcoses. While the
Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356
million Swiss deposits (less government recovery expenses), such sharing arrangement pertains
only to the said deposits. No similar splitting scheme is defined with respect to the other properties.
Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing
ratio. Public officers entering into an arrangement appearing to be manifestly and grossly
disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice Act, 69 invite
their indictment for corruption under the said law.

Finally, the absence of then President Ramos' approval of the principal Agreement, an express
condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed
above, even if such approval were obtained, the Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental
Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs,
are violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL
AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and all
government functionaries and officials who are or may be directly ot indirectly involved in the
recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to
disclose to the public the terms of any proposed compromise settlment, as well as the final
agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions embodied in
this Decision. No pronouncement as to cost.

SO ORDERED.

Davide, Jr., C.J., Melo and Quisumbing, JJ., concur.

Vitug, J., Please see separate opinion.